Bautista v Minister for Immigration
[2017] FCCA 702
•11 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAUTISTA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 702 |
| Catchwords: MIGRATION – Application for review of former Migration Review Tribunal decision – whether the further prescribed period in s.359B of the Act is in addition to the prescribed period in s.359B of the Act – whether the Tribunal misapplied or misunderstood reg.4.18A of the Regulations – the prescribed further period commences when the applicant received notice of it – whether the Tribunal was unreasonable in the exercise of a statutory discretion – whether the Tribunal breached s.359A of the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359B, 359C, 360, 363A, 379A, 379C, 424A, 476 Migration Regulations 1994 (Cth), rr.4.17, 4.18A, sch.2 cl.801.221(6) |
| Cases cited: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 |
| Applicant: | SHERA MARIE BAUTISTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3325 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 28 November 2014 and amended on 14 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3325 of 2014
| SHERA MARIE BAUTISTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 November 2014 and amended on 14 February 2017, seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which affirmed the decision of the Minister’s delegate not to grant a partner visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book”, “CB” – “RE1”) and the affidavit of Toni Marie Dakin, Paralegal, affirmed on 14 February 2017.
Background
It is of assistance to set out the parties’ written submissions as to the background from which the issues in this case emerged.
The applicant’s written submissions state (at [1] – [6] of the applicant’s written submissions filed on 31 January 2017):
“[1] On 15 April 2003 the Applicant applied for temporary and permanent partner visas (sublcasses 820 and 801) to reside in Australia as the spouse of an Australian citizen (CB 1-22). The temporary visa was granted on 19 June 2003 (1st para, CB 28).
[2] On 24 May 2011 a delegate of the Minister decided to refuse the application for a subclass 801 permanent visa (CB 24-38).
[3] On 14 June 2011 the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision (CB 39-68).
[4] On 7 November 2013 the Tribunal decided to affirm the delegate’s decision (CB 69-84).
[5] On 14 May 2014 the Federal Circuit Court remitted the matter by consent (SYG 3019/2013).
[6] On 31 October 2014 the Tribunal again affirmed the delegate’s decision (CB 162-175).”
[Errors in the original.]
The Minister’s written submissions further state (at [2] – [7] of the Minister’s written submissions filed on 7 February 2017):
“[2] The first respondent agrees with the background outlined in the applicant’s submissions, at [1] – [6]. Relevantly to the present proceedings, there are more facts which must be noted.
[3] On 29 July 2014 the AAT wrote to the applicant pursuant to section 359A of the Act. The particulars of information provided to the applicant primarily related to information received from Mr Bautista (the applicant’s claimed sponsor and former partner), or information relating to him.
[3.1] The AAT invited the applicant to comment or to respond to the information by 12 August 2014. The AAT’s invitation was sent by fax, as permitted by section 379A(5).
[3.2] On 7 August 2014, the applicant’s agent requested an extension of time. His correspondence requested a ‘14 day extension to respond’.
[4] On 7 August 2014, the AAT granted a 14 day extension, such that the response was due by 21 August 2014.
[4.1] The AAT’s correspondence was sent to the applicant’s agent by fax. The agent was therefore taken to have received the correspondence at the end of the day on 7 August 2014, pursuant to section 379C(5) of the Act.
[5] The applicant’s response was received on 22 August 2014 (that is, the day after the due date specified by the AAT) at 15:23 hours.
[6] Subsequently on the same day, although the AAT issued by fax an invitation to hearing at 16:39 hours. That invitation was effectively retracted and the hearing cancelled by the AAT in a letter dated 3 October 2014 (faxed on the same day).
[6.1] The reason given for this cancellation by the AAT was that ‘you have lost your entitlement to a hearing under section 359C and 360(3) of the Act as you did not provide a response to the Tribunal’s letter within the prescribed period’.
[7] These events are also described at [5] – [9] of the AAT’s decision. Notwithstanding this passage of events, the AAT stated at [9] that ‘the Tribunal has considered the comments provided by the applicant after the prescribed period has ended.’”
[Footnotes omitted.]
A fair summary of the gravamen of the Tribunal’s decision is also helpfully set out in the Minister’s written submissions (at [8]):
“The AAT, on remittal, again affirmed the decision of the delegate refusing the applicant’s application for a Partner (Residence) (Class BS) visa. The AAT was not satisfied that the parties ever had a genuine spousal relationship. Relevantly to the subject matter of the AAT’s section 359A letter, the reasons for decision at [57] – [59] outline the nature of the information and its particulars.”
[Footnotes omitted.]
The Application to the Court
The applicant’s amended application to the Court is in the following terms:
“1. The Tribunal’s failed to complete its jurisdiction by not conducting a hearing under s360 of the Act.
Particulars
Either:
(a) The Tribunal misinterpreted the meaning of the term ‘14 days after the person receives notice of the extended period’; or
(b) The Tribunal acted unreasonably in notifying the Applicant of the extension before the original period had expired; or
(c) Regulation 4.18A(4) of the Migration Regulations 1994 is an invalid exercise of the regulation making power because it is inconsistent with s359B(4) which permits the Tribunal to extend the original prescribed [period] for a prescribed further period, that is, a period in addition to the original period.
2. The Tribunal failed to comply with the requirements of s359A in respect of information which it considered would be the reason or part of the reason for affirming the decision under review.
Particulars
The Tribunal, at paras [57] to [60], relied on information that was contained in allegations provided to the Department in June and July 2003. This information was not exempt from the provisions of s359A. In the s359A notice sent to the Applicant on 29 July 2014 the Tribunal gave particulars on the July allegations, but not of the June allegations.”
[Errors in the original.]
In essence, the applicant asserts in ground one that the Tribunal failed to invite the applicant to a hearing as required by s.360 of the Act. This failure is said to be as a result of the Tribunal’s finding that the applicant had failed to comply with s.359C(2) of the Act, and that in that circumstance, s.360(2) and (3), when read with s.363A of the Act, prevented the Tribunal from inviting the applicant to a hearing.
To understand the arguments before the Court, it is convenient to set out the necessary legislation. Section 359C of the Act, at the relevant time, was in the following terms:
“359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”
Section 360 of the Act at the relevant time was in the following terms:
“360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
Section 363A of the Act at the relevant time was in the following terms:
“363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”
The relevant subsections of s.359B of the Act, at the relevant time, were in the following terms:
“359B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respondent to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.”
Regulation 4.17 of the Migration Regulations 1994 (Cth) (“the Regulations”), at the relevant time, was in the following terms:
“4.17 Prescribed periods – invitation to comment or give additional information (Act, s 359B(2))
(1) This regulation applies, for subsection 359B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.
(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:
(a) commences when the detainee receives the invitation; and
(b) ends at the end of:
(i) 2 working days after the day the detainee receives the invitation; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:
(a) commences when the detainee receives the invitation; and
(b) ends at the end of:
(i) 7 days after the day the detainee receives the invitation; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(4) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information or comments:
(a) commences when the person receives the invitation; and
(b) ends at the end of:
(i) 14 days after the day the person receives the invitation; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.
Note 1: If the Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.
Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.”
Regulation 4.18A of the Regulations, at the relevant time, was in the following terms:
“4.18A Prescribed periods – invitation to comment or give additional information (Act, s 359B(4))
(1) This regulation applies, for subregulation 359B(4) of the Act, if:
(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.17; and
(b) the invitation is to give the information or comments other than at an interview; and
(c) the prescribed period is to be extended by the Tribunal.
(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:
(a) commences when the detainee receives notice of the extended period; and
(b) ends at the end of:
(i) 2 working days after the day the detainee receives notice of the extended period; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:
(a) commences when the detainee receives notice of the extended period; and
(b) ends at the end of:
(i) 14 days after the day the detainee receives notice of the extended period; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(4) If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:
(a) commences when the person receives notice of the extended period; and
(b) ends at the end of:
(i) 14 days after the day the person receives notice of the extended period; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.
Note 1: If the Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.
Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.”
Before the Court, the applicant referred to the following evidence. On 29 July 2014, the Tribunal wrote to the applicant (by letter sent by facsimile transmission to her “authorised recipient”) inviting her to comment on, or respond to, certain information (CB 106 to CB 110).
The Tribunal told the applicant in that letter, that her comments, or response, had to be received by the Tribunal by 12 August 2014. That is, she was given a 14 day period as required by reg.4.17 of the Regulations. That regulation prescribes the relevant periods that must be given to applicants according to the circumstances of the case. In the current case, there was no dispute that the applicant had to be given 14 days (reg.4.17(4)(b)(i) of the Regulations), and that the letter specified that period.
On 7 August 2014, that is, before the expiry of the 14 day period, the applicant’s representative wrote to the Tribunal (sent by facsimile to the Tribunal). The letter included the following (see CB 111.7):
“We have been instructed by the client to request a 14 day extension to respond, to allow the applicant to obtain further evidence.”
On the same day, that is, 7 August 2014, the Tribunal responded. For current purposes, the following part of that letter is relevant (CB 114):
“On 29 July 2014 the tribunal sent you an invitation to comment on or respond to information.
On 7 August 2014 the tribunal received a request for an extension of time to provide the comments or the response.
The tribunal has considered the request carefully and has agreed to grant an extension of time. The comments or response must now be received at the tribunal by 21 August 2014.
If the tribunal does not receive your comments or response by 21 August 2014, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.”
[Emphasis in original.]
The applicant’s response to the invitation of 29 July 2014 was sent by facsimile on 22 August 2014 and included the following (CB 115):
“We refer to the above pending appeal and your letter of 29 July 2014, inviting the applicant to comment on or respond to information. We now enclose [a] statutory declaration of the applicant dated 21 August 2014 for your consideration.
We submit that the applicant reserves its right to appear before the Tribunal for a hearing to give evidence and present arguments pursuant to Section 360 of the Migration Act.”
On 22 August 2014, the Tribunal wrote to the applicant (by letter sent by facsimile transmission to her authorised recipient), inviting her to a hearing scheduled for 8 October 2014 (CB 119 to CB 122). The applicant, as requested, completed and returned a “Response to Hearing Invitation” form on 5 September 2014 (CB 123 to CB 125).
On 3 October 2014, the Tribunal wrote to the applicant (by letter sent by facsimile transmission to her authorised recipient), and advised that the hearing had been cancelled, the letter included the following (CB 128):
“The hearing scheduled for 8 October 2014 has been cancelled as you have lost your entitlement to a hearing under section 359C and 360(3) of the Act as you did not provide a response to the Tribunal’s letter within the prescribed period.”
Before the Court, the applicant emphasised the following. The Tribunal was required to provide 14 days for the response to its letter of 29 July 2014. It did do this. That 14 day period ended on 12 August 2014. Prior to that date, the applicant asked for an extension of the period on 7 August 2014 of a further 14 days. While the Tribunal granted an extension of 14 days, it did so from 7 August 2014, and not 12 August 2014 (the end of the initial period). The applicant therefore was only given a further 9 days when she should have been given 14 days from the expiry of the initial 14 day period. In the circumstances, had this been done, she would not have lost the opportunity of a hearing before the Tribunal.
Before the Court, the applicant took issue with the Tribunal’s understanding of the relevant regulations. In short, the argument was that the Tribunal misunderstood or misapplied the regulations when it gave a further 14 days for the response, in circumstances where it proceeded on the basis that the further 14 day period commenced from when it gave notice of that further period (7 August 2014), and not from when the initial period ended (12 August 2014). Plainly, if the Tribunal had taken the latter view, the representative’s response of 22 August 2014 would have been within time, and the hearing could not have been cancelled.
The applicant’s argument depends on the following understanding of the relevant sections of the Act and the Regulations. Section 359B of the Act relevantly states that if the Tribunal gives an invitation pursuant to s.359A of the Act, it must give the person 14 days after the receipt of the invitation to respond (reg.4.17(4)(b)(i) of the Regulations). That is, the prescribed period “commences when the person receives the invitation” (reg.4.17(4)(a) of the Regulations).
The Tribunal may extend the prescribed period. The person may then respond within the extended “prescribed further period” (s.359B(4) of the Act). The applicant’s argument is that the words “a prescribed further period” (with the emphasis on “further”) means that that further period, or any part of it, cannot be concurrent with the existing period. That is, “further” means “additional” to the original period.
It is trite to say that any question of legislative interpretation must, in the first instance be resolved having regard to the language of the subject legislation and the statutory and regulatory context within which it exists. Absent any ambiguity, there is no need to look further (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 and Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1).
The plain language of s.359B(2) of the Act and reg.4.17(4) of the Regulations on the one hand, and s.359B(4) of the Regulations and reg.4.18A(4) of the Regulations on the other, is that the two regulations are directed to two separate concepts and circumstances. Regulation 4.17(4) is the prescription relevant to s.359B(2). Regulation 4.18A(4) of the Regulations, is the prescription relevant to s.359B(4) of the Act. The meaning of the plain language of each is reinforced by the respective headings which the applicant has reproduced in his written submissions (at [13]):
“4.17 Prescribed periods – invitation to comment or give additional information (Act, s359B(2))
…
4.18A Prescribed periods – invitation to comment or give additional information (Act, s359B(4)).”
I agree with the Minister’s submission that the applicant’s argument conflates, if not confuses, the two separate concepts of “a prescribed period” (s.359B(2) and reg.4.17(4)), which the Tribunal is obliged to provide when it initially makes the invitation pursuant to s.359A, and the “prescribed further period” (s.359B(4) and reg.4.18A(4)), which applies if the applicant asks for, and is given, an extended period for that purpose.
Section 359B(2) of the Act obliges the Tribunal to give an applicant the “prescribed period” (reg.4.17(4) of the Regulations), within which to respond to an invitation pursuant to s.359A of the Act. Section 359B(4) of the Act separately provides that the initial period may be extended for a further period as described by reg.4.18A(4) of the Regulations. As is made clear in reg.4.18A(4)(a) of the Regulations, that “extended period” commences when the person receives notice of it, and ends “14 days after the day the person receives notice of the extended period” (reg.4.18A(4)(b)(i) of the Regulations).
The applicant’s argument relies on a reading of reg.4.18A(4) which ignores the provision of reg.4.18A(4)(a) as to the commencement date of the “extended period”. That is, the “extended period”, as is made plain at reg.4.18A(4)(a) of the Regulations, commences when the person “receives notice” of the extended period.
The applicant seeks to read into the relevant provision words that are not there. She argues that reg.4.18A(4) of the Regulations in effect, should be read as being that the extended period commences at the point the initial period has ended. That reading is contrary to the plain language of reg.4.18A(4)(a) of the Regulations.
In all, the Tribunal may extend the initial period “for a prescribed further period” (s.359B(4) of the Act), and that period, irrespective of what is separately said at reg.4.17(4) of the Regulations, which is only relevant to s.359B(2) of the Act, commences when the person receives notice of the extended period of (reg.4.18A(4)(a) of the Regulations).
In the current case, the Tribunal initially gave the applicant the prescribed period of 14 days within which to make her response to the s.359A invitation. The applicant sought an extension of that period. The Tribunal granted that extension. That extended period commenced when the applicant received the relevant notice and ended 14 days later (reg.4.18A(4)(a) and (b) of the Regulations).
Before the Court, the applicant pressed that the understanding of the regulatory scheme applied by the Tribunal, and accepted now by the Court, provides an absurd and unfair outcome.
This was explained in two ways. First, in a context of instantaneous electronic communication, if an applicant requested, for example, an extension on the first day of the initial period in anticipation of needing extra time to obtain other evidence to put before the Tribunal, and the Tribunal granted the extension on that date, the net practical result would be no further period.
It is also to be noted however, and as the Minister submitted, that reg.4.18A(4)(a) of the Regulations, in plain language, does not focus on when the Tribunal chooses to give the notice, or by which of the methods in s.379A of the Act it chooses to give the notice. Rather, reg.4.18A(4)(a) of the Regulations deems the extended period to commence when the applicant “receives notice” of it.
The applicant’s argument here, contrary to what was otherwise argued, appears to accept the Tribunal’s understanding of the commencement date of the extended period. With this particular argument the applicant seeks to focus on the conduct of the Tribunal. That is, in the sense of when it is said the Tribunal “chooses” to notify the applicant, rather than on the language of the regulation with its focus on when the applicant receives the notice.
That focus directs attention to s.379C of the Act. None of the provisions “deeming” receipt set out there, with various periods for when receipt would be taken to have occurred, including s.379C(5) of the Act (transmission by fax, email or other electronic means), would result in what the applicant now describes as the “absurd” result of the applicant in a practical sense, not receiving any additional time to respond.
Second, the applicant also argued that the Tribunal’s interpretation would leave the practical operation of reg.4.18A(2)(b)(ii) of the Regulations in an invidious position. For example, she argued that if the extended period is determined by the day the Tribunal elects to notify the applicant (on the basis that the commencement date of the extended period is when the applicant receives the notice), then this would require the Tribunal to obtain the applicant’s consent prior to the giving of the notice in circumstances where that further period would be less than 14 days. Noting of course that reg.4.18A(2) of the Regulations does not apply to the current case because the applicant was not a detainee.
That again depends on the applicant’s conflated reading of the two regulations, and the focus on when the Tribunal sends the notice of the extended period, rather than on when the applicant is taken to have received notice of it, pursuant to s.379C of the Act.
The applicant also argued that the Tribunal’s conduct was unreasonable. This point is pleaded at particular “(b)” to ground one. It does not assist the applicant in the current case.
There is no doubt that in exercising a statutory discretion, as in the current case, the Tribunal must act reasonably (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) FCR 437). However, the applicant’s argument here again relies on her reading of the Regulations with which I do not agree.
That is, the applicant argues that given that the Tribunal gave the applicant notice of the prescribed further period on 7 August 2014, which was the date on which the applicant requested the extended time, this meant the Tribunal gave 9 not 14 days as the extended period.
Again, that argument fails for the reasons already set out above. As the extended period commences when the applicant receives notice of the extension, the prescribed 14 day period commences at that time.
In the current case, the applicant was given 14 days after the day on which she received notice of the extended period. The Tribunal had no discretion to extend this period. In all the circumstances, it cannot be said that the Tribunal exercised the discretion unreasonably.
Particular “(c)” to ground one, asserts that reg.4.18A(4) of the Regulations is an invalid exercise of the regulation making power because it is inconsistent with s.359B(4) of the Act. The applicant argues that s.359B(4) of the Act permits the Tribunal to extend the initial period for a “prescribed further period”. That is, in addition to the initial period.
For the reasons already set out above, the premise underpinning the applicant’s argument is not made out. There is no inconsistency in the way reg.4.18A of the Regulations is interpreted, and the way it is meant to be applied.
Section 359B(4) of the Act provides that an applicant may be given a “prescribed further period” within which to respond to an invitation made pursuant to s.359A of the Act. Regulation 4.18A(4) gives effect to that provision in the way set out above. An applicant, as in the current case, would receive the full benefit of the “prescribed further period”, here 14 days, which commences from the time the applicant is taken to have received the relevant notice as set out in s.379C of the Act.
In summary, all of the applicant’s arguments, in essence, stem from the proposition that the “prescribed further period” starts from the time the Tribunal chooses to give notice of the “prescribed further period”. For the reasons set out above, that must be rejected. On the plain language of reg.4.18A(4) of the Regulations, that period commences when the applicant receives notice of the “prescribed further period”.
Ground one is not made out. It should be noted that if the applicant feels she has been “unfairly” treated by the Tribunal (which was implicit in her submissions), any such perceived “unfairness” derives from the proper operation of the legislation, which must be taken to give a voice to the intention of Parliament, and not from the conduct of the Tribunal.
Ground two asserts a breach of s.359A of the Act by the Tribunal. This is explained in the particulars to that ground as follows.
The Tribunal was not satisfied that the applicant and her sponsor for the partner visa (Mr Mark Bautista) “ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that their relationship was genuine and continuing”. On this basis, the Tribunal found that the applicant failed to satisfy the criterion at cl.801.221(6) of Schedule 2 to the Regulations, as necessary for the grant of the visa. The delegate’s decision was affirmed on this basis ([68] – [70] at CB 174).
In her submissions, the applicant pointed specifically to the Tribunal’s analysis in reaching that conclusion.
She argued that the nature of the applicant’s, and her sponsor’s, commitment to each other (a relevant consideration for the Tribunal) was considered by the Tribunal at [54] (at CB 171) to [69] (at CB 174).
In its analysis, at [66], the Tribunal stated (at CB 173 to CB 174):
“Taking into account all the above evidence, on balance, the Tribunal considers that the evidence that the applicant’s sponsor was residing with Ms C at the time of his marriage with the applicant and at the time the application was lodged is far stronger than the evidence provided by the applicant to the Department that they were residing together at that time. The Tribunal finds the applicant’s evidence relating to when she entered a de facto relationship with her sponsor, the genuineness of her spousal relationship, particularly in 2003 and when the relationship allegedly ceased, to lack credibility, given the weight of the documentary evidence that indicates her sponsor was living with someone else in 2003 at the time of his marriage to the applicant, and the fact that the applicant did not notify the Department in October or December 2003 when she changed address that her relationship with her sponsor had ceased. She only acknowledged the relationship had ceased after the Department advised her that the sponsor had withdrawn his sponsorship in May 2004.”
[Emphasis added.]
The applicant argued that the words “the above evidence”, as they appear at [66] (at CB 173), included a reference to what the Tribunal set out at [57] - [59] (at CB 172), and in particular at [59] (at CB 172) as follows:
“The letter provided to the Department dated June 2003 from Ms C stated that she had been in a relationship with the applicant’s sponsor since 23 November 2002 and the applicant was aware of this relationship. She claimed that the applicant’s sponsor resided with her six nights a week at the address in Blacktown. Since receiving a warning from the Department case officer about allegations he has spent more time at Liberty Grove address. During the Anzac Day long weekend Ms C and the applicant’s sponsor drove to Coffs Harbour for four days. They celebrated the sponsor’s 25th birthday together at a party on 6 June 2003 and together at home the following day. She alleged the wedding card provided to the Department was ‘fake’ as it said it was from their parents but both their parents lived overseas and the card was purchased in Australia. Two witnesses signed Ms C’s statement and Ms C attached a copy of the wedding card, receipts in both names for their holiday together in Coffs Harbour, copies of the sponsor’s mobile telephone bills addressed to the Blacktown address dated 4 May 2003 and 4 June 2003; and a video and several photographs of the applicant’s sponsor with Ms C dated between December 2002 and June 2003.”
[Note: Ms C also claimed to be in a relationship with Mr Bautista.]
The applicant’s argument was that what was contained in the letter from Ms C (dated June 2003) was information that was a part of the reason for affirming the delegate’s decision. As such, it was caught by the obligation in s.359A of the Act, and the Tribunal was obliged to give the applicant an invitation to comment on, or respond to, this information. As no hearing pursuant to s.360 of the Act took place, that invitation had to have been given in writing.
The Tribunal did write to the applicant pursuant to s.359A of the Act. That letter, dated 29 July 2014, is reproduced at CB 108 to CB 110. The applicant relevantly pointed to (at CB 108 to CB 109):
“On 23 July 2003 the Department received information that the relationship between you and your sponsor, Mark Bautista was contrived. The allegations stated that your spouse actually resided with Ms Rochelle Cortan at an address in Blacktown and he returned to your nominated address in Liberty Grove on Sunday nights only for the purposes of immigration surveillance. This allegation was supported by:
·telephone bills addressed to Mr Bautista dated April/May 2003 addressed to the Blacktown address
·an Integral Energy bill dated 8 April 2003 addressed to Ms Cortan at the same address in Blacktown as Mr Bautista’s address for his telephone bill;
·photographs of Mr Bautista with Rochelle Cortan dated Christmas December 2002, 19 March 2003, Anzac Weekend 24-27 April 2003, May 2003 and 6 June 2003;
The allegation was further supported by information provided to the Department by Mr Bautista on 22 July 2004 in which he stated that ‘Ms Cue has just asked me to help her get he residency but I had to cancel it because it is affecting my personal relationship with my girlfriend, Rochelle Cortan …… she is making up the story regarding domestic violence. If this is her way to get the residency then it is not right because I never laid hands on her’.
Mr Bautista provided further information to the Department on 23 July 2004 stating ‘I was not in the relationship with Ms Cue since November 2002. She still lived at my sister’s house until she moved to her home at Ashfield in September 2003. At the same time she asked me if I could put some of my clothes in her house, just for the immigration if ever they do a spot check, she would still be able to tell them that I still live with her. I would never even have a chance to be victimising her because we never see each other, as I was living with my girlfriend Rochelle Cortan at Blacktown then we moved to Parramatta. There was no domestic violence and I am assuring you that there never would be such a case because I was not with M Cue since November 2002.”
[The reference to Ms Cue appears to be a reference to the applicant, Ms Bautista. The reference to Ms Rochelle Cortan appears to be the same person to whom the Tribunal referred to as Ms C in its decision record.]
The applicant’s submission was that the Tribunal’s letter makes no reference to the allegations received in June 2003, or the letter from Ms C. Further, the Tribunal’s letter made no reference to the allegation from Ms C that she had been in a relationship with Mr Bautista for eight months as noted by the Tribunal in its decision record. Nor did it refer to any of the other detailed claims made, and as referred to by the Tribunal in its decision record.
The applicant’s argument therefore, is that the Tribunal relied on information caught by s.359A of the Act, and did not comply with its obligation in s.359A of the Act. This is said to reveal jurisdictional error.
The Minister relied on the evidence annexed to the affidavit of Ms Dakin of 14 February 2017 (emails from Mr Bautista of 22 and 23 July 2004), to argue that what is set out in the emails provides the background to understanding what was set out in the Tribunal’s letter of 29 July 2014.
The email on 22 July 2004 stated:
“I spoke to Ms Cue recently and she told me that she pursue her case that is why she appeal for domestic violence. For your information I just wanted to say that there was no domestic violence that occurred. I was not in the relationship with Ms Cue since November 2002, she still lived at my sisters house until she moved to her home at Ashfield in September 2003, at the same time she asked me if I could some o! f my clothes in her house, just for the immigration if ever they do a spot check, she would still be able to tell them that I still live with her. I would never even have a chance to be victimising her because we never see each other, as I was living with my girlfriend Rochelle Cortan at Blacktown then we moved to Parramatta.
Hopefully this will help. There was no domestic violence and I am assuring you thatthere would never be such a case because I was not with Ms Cue since November 2002.”
[Errors in original.]
The email on 23 July 2004 stated:
“Thank you Dat and also as Ms Cue was claiming domestic violence, if ever that there is something like that that happened then why didn’t she tell the immigration straight away, why would she wait now to tell the immigration if she knew that she could’ve done it before and get her residency at the same time. Ms Cue has just asked me to help her get her residency but i had to cancel it because it is affecting my personal relationship with my girlfriend Rochelle Cortan.If she is retailating this way, it is not right because she is making up the story regarding domestic violence. If this is her way to get the residency then it is not right because i never laid hands on her.”
[Errors in original.]
In short, the Tribunal’s letter of 29 July 2014 made reference to the information obtained on 23 July 2003 (the three dot points, see CB 108 and [58] above), and what was said by Mr Bautista in his emails in 2004 in the following two paragraphs of that letter (at CB 108).
The Minister’s submissions were that the “central allegation” on which the Tribunal relied was that the relationship between Mr Bautista and the applicant was contrived. Further, that the import of what Mr Bautista stated in the email in 2004 (see above), was that the period to which the contrived relationship was said to have related was up to November 2002. That is, by that time, the “pretence” of the relationship had ended. The items listed at the three dot points in the Tribunal’s letter (at CB 108) are “corroborative” of the “central allegation”, that the claimed relationship, was a contrivance, and was no longer being asserted, at least by Mr Bautista.
The dispute between the parties before the Court, as both presented their respective cases, arises from the question as to whether what the Tribunal put in its letter of 29 July 2014, inviting the applicant’s comments, was of sufficient particularity to satisfy the obligation s.359A(1) of the Act.
The applicant relies on what she understands the Tribunal to have said in its decision record, about the issue of the claimed contrived nature of the relationship between Mr Bautista and the applicant. The applicant compares what is set out at [59] (at CB 172) to [60] (at CB 172 to CB 173), to what is set out in the Tribunal’s letter of 29 July 2014, to argue that the “information” the Tribunal relied on in its decision record, was not put to the applicant with sufficient particularity in its letter of 29 July 2014.
As is made clear by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”), the use of the future indicative tense (“would be”), as it appears in s.424A of the Act, and as it also applies in parallel to s.359A of the Act, means that attention must be given to a point in time prior to the drafting of the Tribunal’s decision record.
In the current case, the applicant has chosen to focus on the Tribunal’s decision record as a starting point in her argument that the Tribunal breached the obligation in s.359A of the Act in her case. It is necessary therefore, in addressing the applicant’s submissions, to at first instance look at the Tribunal’s reasons for decision. Of course, such consideration is for the purpose of ascertaining what the Tribunal considers would be the reason or a part of the reason for affirming the delegate’s decision (SZBYR, SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99, and SZTPY v Minister for Immigration and Border Protection [2015] FCA 565).
In the current case, that antecedent point is the Tribunal’s letter of 29 July 2014. In that sense, there is great strength to the Minister’s submissions which sought to explain the context within which the Tribunal’s letter of 29 July 2014 was drafted.
The Tribunal’s reasoning ([59] (at CB 172) to [60] (at CB 172 to CB 173)) which the applicant now seeks to impugn in light of its letter of 29 July 2014, is as follows.
The Tribunal noted a letter from “Ms C” dated June 2003 which centrally asserted that she (Ms C) had been in a relationship with the sponsor (Mr Bautista) since 23 November 2002, and that the applicant knew of this. Ms C provided some detail about her relationship with the sponsor during 2003.
The Tribunal reasoned that Ms C’s allegation of a contrived relationship between Mr Bautista and the applicant could have been “made” for a “variety of personal reasons”. It therefore “only placed weight on the independent documentary evidence”. That is, when fairly read, the Tribunal did not place any weight on the allegations made by Ms C.
The description of that documentary evidence is set out by the Tribunal at [60] (at CB 172 to CB 173) of its decision record, and makes clear that it was the documentary evidence referred to by the Tribunal in its letter of 29 July 2014, at the three dot points at CB 108. That information was given to the applicant (see further below as to whether it was of sufficient particularity for current purposes).
In this context, at [60] (at CB 172 to CB 173) the Tribunal also considered the photographs of Mr Bautista and Ms C as referred to at the third dot point in the letter (at CB 108), and which were provided to the Tribunal by Ms C.
The Tribunal stated that the photographs indicated some degree of intimacy between Mr Bautista, the applicant’s sponsor, and Ms C. Ms C alleged (an allegation on which the Tribunal said it placed no weight), that in 2003 she was in a relationship with Mr Bautista. The Tribunal noted that in relation to the photographs, which were part of the “independent documentary evidence” to which the Tribunal said it had generally given weight, that it gave “little weight” to these photographs as evidence Ms C was in a relationship with Mr Bautista in the relevant period, because the dates were provided by Ms C herself.
Before the Court, the applicant sought to emphasise that the Tribunal stated it placed “little weight” on the photographs, rather than “no weight”, to argue that Ms C’s allegations were a part of the reason for affirming the delegate’s decision.
However, as is clear on a fair reading of the Tribunal’s decision, the Tribunal placed no weight on the statement made by Ms C, and in relation to the documentary evidence of which it said it placed some weight, the photographs received only “little weight”.
What remains is that it cannot be said that Ms C’s allegations were “part of the reason for affirming the delegate’s decision” as argued by the applicant now. Rather, the photographs, as part of the documentary evidence only, can be said to be a “part of the reason for affirming the delegate’s decision”. In this circumstance, the photographs, and what they relevantly depicted, and their dates, were all put in the Tribunal’s letter of 29 July 2014.
It must be said that the applicant’s argument relied on a selective reading of the totality of the Tribunal’s reasoning. The applicant’s approach was not a fair reading. Nor was there any satisfactory attempt to put [59] (at CB 172) to [60] (at CB 172 to CB 173) of the Tribunal’s decision record, in the context of the entirety of the analysis at [54] (at CB 171) to [69] (CB 174), on the issue of the nature of the applicant’s and her sponsor’s commitment to each other.
That reasoning was to examine the applicant’s own evidence (exempt from the obligation in s.359A by virtue of s.359A(4)(b) of the Act), that she was in a relationship with Mr Bautista from February 2000 (after she arrived in Australia on a student visa), they married in April 2003, and separated in September 2003. The relevant period therefore was February 2000 to September 2003.
The Tribunal had regard to the documentary evidence which had been provided, to corroborate this claim, including witness statements (exempt from the obligation in s.359A(1) of the Act by virtue of s.359A(4)(b) of the Act).
Allegations were provided to the Minister’s Department during June to July 2003, that the relationship between Mr Bautista and the applicant was “contrived”.
I pause here to note that before the Court, the applicant pointed to the Tribunal’s letter of 29 July 2014, which expressly referred to information received on 23 July 2003, but made no reference to information received in June 2003. Yet in its decision record, the Tribunal referred to allegations provided to the Department in June and July 2003. That is, the Tribunal’s letter of 29 July 2014 made no mention of June 2003, and any allegations received in that month.
The Minister’s explanation before the Court, with which I agree, was that the reference in the Tribunal’s letter of 29 July 2014 to 23 July 2003 (CB 108), was a specific reference to the receipt of the documents which the Tribunal considered at [59] (at CB 172) to [60] (at CB 172 to CB 173) of its decision record (see above). The evidence at annexure “A” to the affidavit of Ms Dakin reveals that the provision of these documents to the Department, in context by Ms C, was a part of a series of communications from Ms C, that the relationship between Mr Bautista and the applicant was contrived.
That is, the documents identified in the Tribunal’s letter of 29 July 2014, were a part of this allegation that the relationship was contrived which first emerged in June 2003. The Tribunal’s letter of 29 July 2014 made clear, in its terms, that the Tribunal had received information that the relationship was contrived. The applicant was squarely put on notice of this information. The fact that the Tribunal made specific reference only, in its letter of 29 July 2014 to 23 July 2003, did not detract from the conveyance to the applicant in the letter that such an allegation had been made. There is nothing in the evidence before the Court now, to indicate that the allegation received in June 2003 was different to the Tribunal’s description of the allegation as put in its letter of 29 July 2014. That is, the information was that the relationship had been contrived.
Having dealt with the allegation and documents provided by Ms C (at [58] (at CB 172) to [60] (at CB 172 to CB 173), the Tribunal then considered documents provided by the applicant herself to the Minister’s Department ([61] – [62] at CB 173). As these were provided by the applicant to the Minister’s Department in support of her application for the visa, they fell within s.359A(4)(ba) of the Act and are exempt from the obligation s.359A (1) of the Act.
The Tribunal then set out its consideration of Mr Bautista’s (the sponsor’s) statements given to the Department in July 2004. For current purposes, the information from that statement referred to by the Tribunal (at [63] at CB 173), was put in its letter of 29 July 2014, thus complying with the obligation in s.359A(1) of the Act.
Further, at [64] (at CB 173), the Tribunal referred to corroborative evidence to support one aspect of the applicant’s statement, that Mr Bautista resided with Ms C from October 2003. That is, after she claimed that her relationship with Mr Bautista had ended. The applicant’s statement given for the purposes of the review falls within the exception in s.359A(4)(b) of the Act.
The corroborative documents were found, by the Tribunal, to be supportive of that particular part of the applicant’s claim. Therefore, they could not be said to have contained a “rejection, denial or undermining” of the applicant’s claims. To the contrary, as the Tribunal found, they supported a part of her account. In this light, those documents were not “information” for the purposes of s.359A(1) of the Act (SZBYR at [18]).
Before the Court, the applicant made much of the Tribunal’s statement at [66] (at CB 173): “[t]aking into account all the above evidence, on balance, the Tribunal considers…” to argue that what was referred to at [59] (at CB 172) to [60] (at CB 172 to CB 173), was a “part of the reason” for affirming the delegate’s decision.
However, as is clear, the Tribunal did accept at least one part of the applicant’s account, this obviously explains the Tribunal’s reference to “on balance” as it appears at [66] (at CB 173).
The use of the phrase “taking into account all the above evidence” does not, of itself, make what is set out at [59] (at CB 172) to [60] (at CB 172 to CB 173), part of the reason for affirming the delegate’s decision.
Rather, the Tribunal was required to consider all of the claims before it, and the evidence relevant to those claims. As set out above, at [59] (at CB 172) to [60] (at CB 172 to CB 173), the Tribunal addressed the allegation and supporting documents provided by Ms C, which went to the matter of contradicting the applicant’s claims. It did not rely on Ms C’s specific allegation, but it did rely on the documentary evidence, then gave only “little weight” to one set of those documents (that is, the photographs).
The Tribunal’s finding that the relationship was contrived to achieve an immigration outcome for Ms Bautista as set out at [67] (at CB 174), clearly arose from information and evidence that was given by the applicant herself, or Mr Bautista, as a part of the application for the visa.
The Tribunal did not accept the applicant’s evidence as to when she said she lived with Mr Bautista, and therefore the Tribunal found that they were not in a spousal relationship, and therefore did not have a shared commitment to each other. The information on which the Tribunal relied, which was not exempt from the obligation in s.359A(1) of the Act, was put in its letter of 29 July 2014. In that light, what the Tribunal considered “would be the reason” or a “part of the reason” at that antecedent point in time, for affirming the delegate’s decision, was put in the Tribunal’s letter of 29 July 2014, absent properly, that information caught by the exceptions in s.359A(4) of the Act.
Before the Court, the applicant sought to rely on two authorities. First, Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173 (“Khan”), for the proposition that simply because the Tribunal said it gave “little weight” to the photographs (as opposed to the other documentary material), did not mean that the photographs were not “information” for the purpose of s.359A (1) of the Act.
Second, Bani Hani v Minister for Immigration & Anor [2016] FCCA 483; (2016) 306 FLR 1 (“Bani Hani”), for the proposition that the Tribunal is obliged to give to the applicant for comment, all of the information that is relevant to the question as to whether the delegate’s decision should be affirmed.
While not pleaded, it appeared that the applicant’s complaint in relying on these authorities was that the Tribunal did not provide sufficient particularity or detail, in its letter of July 2014. The applicant’s complaint (made in oral submissions), was that the Tribunal only made “some very limited reference to the allegations”. I understood this to be a reference to the “repeated allegations” at [59] (at CB 172) and [60] (at CB 172 to CB 173). The written submissions in particular pointed to (see [31] of applicant’s written submissions):
“In any event, the material on which the Tribunal claims it did rely, as set out in para 60, was considerably more extensive than the information provided in the notice. For example , there is no mention in the notice of:
-travel receipts for a joint holiday (presumably Ms C and the sponsor) in April 2003;
-the fact that the sponsor’s telephone records showed that phone calls to Ms C ceased over the Anzac long weekend when Ms C stated they were on holiday in Coffs Harbour;
-photographs showing ‘some degree of intimacy’ between the sponsor and Ms C.”
On the question of the sufficiency of particulars, the Minister relied on Paul v Minister of Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 (“Paul”) at [104] (and NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112) ([23] of the Minister’s written submissions):
“In Paul v Minister of Immigration and Multicultural Affairs [2001] FCA 1196 / (2001) FCR 396 at [104], the Full Court concluded that the adequacy of particulars is to be judged by reference to the information taken by the Tribunal to be relevant, having regard to ensuring that the applicant is ‘fairly informed’ of the adverse information (see also NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112):
The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be take, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]).”
Further, the Minister relied on Minister for Immigration v Kumar [2009] HCA 10; (2009) 238 CLR 448 (“Kumar”) (at [34]), for the proposition that the “information” to be conveyed in the Tribunal’s letter of 29 July 2014 is the information that “would be the reason” or a “part of the reason” for affirming the delegate’s decision:
“The Tribunal was obliged by s 359A(1) to give ‘particulars of any information that the Tribunal considers would be … part of the reason, for affirming the decision’ of the delegate. The ‘information’ there spoken of did not include the non-disclosable information (s 359A(4)). The Tribunal complied with s 359A(1) by notifying Mr Kumar that it had received information, in confidence, which stated that his marriage was contrived for the sole purpose of his migration to Australia, and inviting his response.”
The dispute between the parties appeared to come down to whether the Tribunal was obliged to specifically mention in its letter of 29 July 2014, the letter from Ms C and its contents to which it referred at [59] (at CB 172) to [60] (at CB 172 to CB 173), of its decision record.
In Khan, upon which the applicant relies, the Court was concerned with a decision to cancel a visa. In that case, a letter from the applicant’s employer was central to that consideration. In the current case, the circumstances are closer to what the Court considered in Paul. That is, for current purposes, the question is whether the Tribunal provided sufficient particularity to the applicant in its letter of 29 July 2014, such that the applicant understood the relevance of the information to the review. That is, that the applicant was given the opportunity to know the case against her, and to respond to, or comment on, the issues relevant to the review, and the relevance of the “information”, as that term is understood in s.359A of the Act, to the review.
As set out above, the Tribunal did not rely, in its affirmation of the delegate’s decision, on Ms C’s letter of June 2003. What it did rely on, in part, was the independent documentary evidence, albeit it gave the photographs “little weight”. That documentary evidence was set out with sufficient and relevant particularity, in its letter of 29 July 2014.
It is clear that the other information on which the Tribunal relied, and to a greater degree, was the information from Mr Bautista. That was also put in the letter of 29 July 2014, with sufficient and relevant particularity.
In all, the applicant was put on notice by the Tribunal’s letter of 29 July 2014, that allegations had been made by virtue of information provided by Ms C and Mr Bautista (the applicant’s sponsor), that went to the proposition that the claimed relationship was a “contrivance” for immigration purposes.
The applicant was given this information by the Tribunal in its letter of 29 July 2014. The letter contained clear particularity and sufficient detail as required by s.359A(1) of the Act, and as explained by Kumar and Paul. I do not respectfully understand anything said in Khan, or for that matter in Bani Hani, to relevantly contradict that explanation. In all, ground two is not made out.
Conclusion
Neither of the two grounds of the amended application to the Court reveal jurisdictional error. It is therefore appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 11 April 2017
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