Bui v Minister for Immigration and Border Protection
[2022] FedCFamC2G 265
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Bui v Minister for Immigration and Border Protection [2022] FedCFamC2G 265
File number(s): MLG 1217 of 2017 Judgment of: JUDGE RILEY Date of judgment: 13 April 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the Tribunal erred in relation to a ‘dob-in’ letter – whether the Tribunal made irrational or unreasonable findings – whether the Tribunal failed to properly consider the evidence before it. Legislation: Migration Act 1958 ss.5F, s.358, 359AA(1), 359A, 375A, 366D and 376
Migration Regulations1994 reg.1.15A, cl.820.211 and cl.820.221 of Sch.2
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; (2020) 383 ALR 407; [2020] HCA 34
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24
Bui v Minister for Immigration & Anor [2019] FCCA 3363
ETA067 v Republic of Nauru (2018) 360 ALR 228; [2018] HCA 46
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; (2018) 92 ALJR 780; [2018] HCA 34
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; (2017) 158 ALD 198; [2017] FCAFC 176
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; (2016) 329 ALR 491; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; (2019) 163 ALD 38; (2019) 363 ALR 599; (2019) 75 AAR 75; [2019] HCA 3
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Division Division 2 General Federal Law Number of paragraphs: 97 Date of hearing: 1 March 2022 Place: Melbourne Counsel for the applicant: Dr Adam McBeth Solicitor for the applicant: Wimal & Associates Counsel for the first respondent: Mr Keith Sypott Solicitor for the first respondent: The Australian Government Solicitor Counsel for the second respondent: No appearance Solicitor for the second respondent: The Australian Government Solicitor ORDERS
MLG 1217 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHUONG THAO BUI
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal made on 22 May 2017 in matter number 1602095 be set aside.
2.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
3.The first respondent pay the applicant's costs of the proceeding fixed in the sum of $7,853.
Note:The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a partner (Temporary) (Class UK) visa.
The applicant married her sponsor, Liem Chi Dang, on 7 August 2014. He is an Australian citizen. The Tribunal accepted that the marriage was valid. However, the Tribunal considered that the applicant was not in a genuine spousal relationship with her sponsor.
MATERIAL RELIED UPON
At the hearing on 1 March 2022, the applicant relied upon:
(a)the court book filed on 7 February 2018;
(b)the amended application filed on 9 September 2019;
(c)the affidavit affirmed by Mylvaganam Wimaleswaran on 11 September 2019; and
(d)her written submissions filed on 12 September 2019.
At the hearing on 1 March 2022, the Minister relied upon:
(a)the court book filed on 7 February 2018; and
(b)his written submissions filed on 7 October 2019.
LEGISLATION
Clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations1994 (“the Regulations”) require that, at the time of application and at the time of decision, the applicant, relevantly, be the spouse of an Australian citizen.
Spouse is defined in s.5F of the Migration Act 1958 (“the Act”) as follows:
(1)For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Regulations relevantly provides that:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
...
GROUND 1
The first ground of review in the application filed on 8 June 2017 and amended on 9 September 2019 (“the amended application”) is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal denied the applicant procedural fairness, or alternatively, acted unreasonably in the exercise of its powers, in failing to provide a meaningful opportunity to refute the credibility of the information covered by the s 376 certificate.
Particulars
a)The Tribunal had before it a certificate issued under s 376, protecting certain information, described by the Tribunal as a ‘dob-in’ communication, from being disclosed to the applicant.
b)The Tribunal disclosed the existence of the certificate during the hearing without prior notice.
c)The Tribunal put limited particulars of the ‘dob-in’ material to the applicant for comment, without disclosing the source of the material.
d)The applicant expressed a desire to ‘confront’ the author of the material to test the veracity of the information.
e)The applicant was not provided an opportunity to cross-examine the author or otherwise test the veracity of the information.
f)The applicant was not provided with sufficient information as to the source of the information to make a meaningful response.
g)The Tribunal’s decision to rely on the ‘dob-in’ material and not to call the author for cross-examination, or alternatively, provide enough information for the applicant to respond meaningfully as to the credit of the author or the reliability of the evidence, denied the applicant procedural fairness, or alternatively, was an unreasonable exercise of the Tribunal’s powers in the circumstances.
As can be seen, this ground raises issues of procedural fairness and unreasonableness in relation to information considered by the Tribunal under s.376 of the Act.
Section 376 of the Act provides that:
(1)This section applies to a document or information if:
…
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2)Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
Under s.376(3) of the Act, the Tribunal has:
(a)a discretion to have regard to the information covered by the certificate; and
(b)another discretion to disclose some or all of that information to the applicant or a witness in the proceeding.
The s.376 certificate covering the ‘dob-in’ letter was reproduced at CB144. The s.376 certificate stated that:
(a)a particular folio of the applicant’s file was given to the Minister’s department in confidence; and
(b)s.375A of the Act did not apply to that folio.
Section 375A of the Act did not apply because the s.376 certificate did not specify that the information in the folio could only be disclosed to the Tribunal. The s.376 certificate stated that the folio contained an allegation of significance.
In the present case, the Tribunal showed the applicant’s migration agent the s.376 certificate towards the end of the hearing of the applicant’s evidence before the Tribunal. From the transcript, it appears that the Tribunal gave the migration agent a few moments to read the certificate, and asked if the applicant had any issues with it. The migration agent said that the applicant had no issues with the certificate.
The ‘dob-in’ letter itself was not reproduced in the court book and has not been provided to the applicant. The ‘dob-in’ letter was the subject of an interlocutory application to Judge Blake of this court. The ‘dob-in’ letter was produced to his Honour, but not to the applicant, for the purposes of that application. Judge Blake held in Bui v Minister for Immigration & Anor [2019] FCCA 3363 that the ‘dob-in’ letter was subject to public interest immunity, and ordered that it be returned to the Minister’s solicitors. His Honour ordered that a judge other than himself hear the substantive matter. I have not seen the ‘dob-in’ letter and nor has the applicant.
The Tribunal said, in its reasons for decision, in relation to the ‘dob-in’ letter, that:
42.It was put to the applicant under the provisions of section 359AA of the Migration Act that the sponsor’s oral evidence here contained certain adverse information as to the genuineness of their relationship. Specifically the information provided under a section 376A Migration Act certificate was that the parties had entered into a fake marriage. The allegation is that the sponsor lives with a long-term partner for almost 20 years at a named address. The sponsor and his alleged long-term partner are alleged to have a son together who is at the time of the allegation seven years old. The alleged long-term partner of the sponsor is alleged to be receiving a Centrelink benefit. After divorcing her first husband the applicant is said to have married her sponsor to become an Australian citizen. These arrangements are said to be known to the sponsor and to his long-term partner. The allegation goes on to say that those who witnessed the marriage of the parties have committed fraud in an attempt to get the applicant Australian citizenship.
43.The applicant’s response was that she was surprised to hear somebody had informed about her. The applicant went on to say that if she knew that her husband had been living with another woman she would not have married him. She added that since the marriage the sponsor had always lived with her. She stated that there were no other relations with other parties. The applicant added that someone had informed the Department and might be jealous or envious of business operations of the sponsor. The applicant said that in relation to her ex-husband, her ex-husband had left her she did not leave him. At the time she was depressed. The applicant stated that she then met her current husband, who showed understanding towards her and was her strength. She added that that is why the parties have future plans. The applicant added that she is willing to confront those who informed about her
44.I am not satisfied with the explanation provided by the applicant in regards to this information put under section 359AA of the Migration Act. The response of the applicant in essence flatly denies all aspects of the allegation. The applicant states of the parties of (sic) always lived together and are in a genuine relationship. However the above mentioned concerns that I have about the commitment of the parties, their knowledge of one another, and the apparent lack of acknowledgement by some others of their relationship in a broader sense have an apparent link with the essence of the allegation.
45.Secondly the ‘dob in’ communication to the Department is detailed. The correspondent has put their name to the communication. It is not anonymous. Various parties are named in detail. Details about financial, visa, and home addresses are supplied. On the face of it the supplier of the information has a good knowledge of the circumstances of the parties and their connections.
46.The applicant has suggested that jealousy about business success is a possible motive for the ‘dob in’. The Tribunal cannot look behind whether third parties are jealous or not jealous of an individual’s business. On the other hand, the Tribunal notes the detail of the allegation, the fact that the source is named, the apparent knowledge of the individuals involved, and the internal consistency of the allegation. The allegation is by no means lacking in harmony with the earlier mentioned concerns of the Tribunal, and the response of the applicant does not allay those concerns.
The way that the applicant ultimately put ground 1 changed somewhat from the way in which it was put in the amended application and in the applicant’s written submissions. Ultimately, the applicant said in oral submissions that she did not challenge the validity of the s.376 certificate as such. However, she said that the Tribunal denied her procedural fairness in relation to the information behind the certificate by denying her a meaningful opportunity to convince the Tribunal that:
(a)the assertions in the ‘dob-in’ letter were not true; and
(b)the writer of the ‘dob-in’ letter was not credible or reliable.
In addition, the applicant said that it was unreasonable for the Tribunal to have relied on the ‘dob-in’ letter in circumstances where the applicant did not have a meaningful opportunity to challenge the information in it.
As this matter has many factual similarities to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72, it is worth setting out what the High Court held in that case. The High Court said in VEAL:
26.What is important to notice in the present case, however, is first, that information was supplied confidentially to the Department by someone who sought to remain unknown to the appellant, and secondly, that the information bore on whether the appellant was entitled to a protection visa. ...
27.The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. ...
28.The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was.
29.So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant’s response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the “problem of confidentiality”. Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.
(footnote omitted).
While the requirements of procedural fairness are always fact specific, what VEAL indicates in a very factually similar matter to the present matter was that the Tribunal:
(a)was not obliged to give the applicant a copy of the ‘dob-in’ letter;
(b)was not obliged to disclose the identity of the writer of the ‘dob-in’ letter;
(c)was obliged to disclose to the applicant the substance of the ‘dob-in’ letter;
(d)was obliged to consider the allegations in the ‘dob-in’ letter in the light of the fact that the credibility of the maker of the allegations had not been tested; and
(e)may not be able to decide whether the allegations had substance.
The applicant argued, firstly, that s.376(3) of the Act gives the Tribunal a discretion to disclose any information in the document behind the certificate, such as:
(a)all of the information in the ‘dob-in’ letter;
(b)details of the allegations made; and
(c)the identity of the person making the allegations.
Based on VEAL, the disclosure of the identity of the writer of the ‘dob-in’ letter can immediately be excluded as a requirement of procedural fairness. Moreover, in Bui v Minister for Immigration & Anor [2019] FCCA 3363, Judge Blake held that the ‘dob-in’ letter was subject to public interest immunity, largely on the basis that disclosing the document, or even a redacted version of it, would disclose the identity of its writer, and that would breach confidence, and make the provision of similar ‘dob-in’ letters less likely in the future. It follows from that judgment, which was not appealed, that the ‘dob-in’ letter is subject to public interest immunity, and the Tribunal was not obliged to disclose it, or the identity of the writer. It makes no difference that Judge Blake’s decision came later. If the information was privileged, it was privileged.
The applicant noted that in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; (2019) 163 ALD 38; (2019) 363 ALR 599; (2019) 75 AAR 75; [2019] HCA 3, Bell, Gageler and Keane JJ said, in respect of s.438 of the Act, which is basically the same as s.376 of the Act, but in the refugee context:
30.A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal’s duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c), and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 — to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review — falls to be exercised.
31.The entitlement under s 423 extends to allowing the applicant to present a legal or factual argument in writing either to contest the assertion of the Secretary that s 438 applies to a document or information, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). This entitlement, at least in those specific applications, is capable of meaningful exercise only if the applicant is aware of the fact of a notification having been given to the Tribunal.
The applicant said that passage from SZMTA made it clear that the Tribunal should have afforded the applicant a meaningful opportunity to seek to persuade the Tribunal to disclose the information in the ‘dob-in’ letter. The Tribunal certainly disclosed some of the information in the ‘dob-in’ letter. The transcript of the Tribunal hearing records that the Tribunal said, after questioning the applicant at length about her living arrangements with her sponsor:
So the tribunal has been informed of the following. That the marriage between you and your sponsor is a fake marriage, that your sponsor is in fact living with his long term partner and has been doing so for nearly 20 years. … [There was then a twenty minute break because of background noise, and because the interpreter could not be found.]
… The allegation is that the sponsor is living with his long term partner for nearly 20 years at a named address. The parties have - I withdraw that. The sponsor and his long term partner are alleged to have a son together, who is, at the time of the allegation, seven years old. The long term partner of your sponsor is alleged to be receiving a Centrelink single parent payment.
The allegation goes on to say that you after divorcing your first husband, [you] married your sponsor to become an Australian citizen. The allegation goes on to say that these arrangements were known to your sponsor and to his partner. It also goes on to say that those who witnessed your marriage have committed fraud in an attempt to get you Australian citizenship. …
After giving the applicant time to discuss the matter with her representative, the Tribunal also said:
[The writer of the ‘dob-in’ letter] does appear to be a person that either knows you or is known to you.
As mentioned above, I have not seen the ‘dob-in’ letter. Consequently, I am unable to say how much of the ‘dob-in’ letter the Tribunal conveyed to the applicant. However, one thing that was definitely not conveyed to the applicant is the address at which the applicant’s sponsor was alleged to be living with his long-term partner, even though that alleged address was in the ‘dob-in’ letter. If the applicant had been given that address, she could have tried to find out who lived there, and given evidence of that to the Tribunal. That would have been a way in which the applicant could have actually disproved the allegations, as opposed to merely denying them verbally.
However, SZMTA highlights that under s.423(1)(b) of the Act, or its equivalent in the present context, s.358(1)(b) of the Act, the applicant is entitled to give the Tribunal:
… written arguments relating to the issues arising in relation to the decision under review.
The allegation in the ‘dob-in letter’ that the applicant’s marriage was a fake was certainly an issue ‘arising in relation to the decision under review’. Paragraph 358(1)(b) of the Act required the Tribunal to alert the applicant to the new issue contained in the ‘dob-in’ letter and permit the applicant to respond to it in writing. The Tribunal did not do that. On the contrary, as the applicant said, the Tribunal ‘sprang’ the allegation on the applicant at the very end of its questioning of her. The Tribunal did not invite the applicant to make a written submission about the issue that arose in the ‘dob-in’ letter.
The Tribunal, rather than alerting the applicant to the issue on the review under s.358 of the Act, and inviting the applicant to respond in writing, followed the path in s.359AA(1) of the Act. That section provides that:
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
There appears to be a tension between s.358 and s.359AA of the Act. However, they deal with different things. Section 358 deals with issues, and s.359AA deals with information. In accordance with basic principles of statutory construction, where a statute uses two different words, the words must be understood as having two different meanings. In the present context, an issue would be that the applicant is in a fake marriage, and information would be the detail of the allegations in relation to that, such as that the applicant’s sponsor lives with his long-term partner at a particular address.
Understood in this way, the Tribunal did not give the applicant a meaningful opportunity to give it written arguments about an issue arising in relation to the decision under review, and thus did not enable the applicant to exercise her rights under s.358 of the Act. This is a jurisdictional error. It was a material error because, given time to make written arguments about the issue of her relationship allegedly being fake, the applicant could at a minimum have bolstered her evidence about the genuineness of her relationship.
Moreover, giving the applicant time to respond in writing to the issue raised by the ‘dob-in’ letter would, in practice, have given the applicant an opportunity to seek to seek to persuade the Tribunal to disclose the address at which her husband allegedly lived with another woman, and to provide evidence about who actually lived at that address.
For completeness, I will also address the other arguments raised in relation to ground 1.
The applicant said that she said to the Tribunal[1]:
I’m willing to confront those who informed about me.
1 [1] Tr p.33, l.36 to l.37:
2
The applicant argued that statement was, in effect, a request to be able to cross-examine the writer of the ‘dob-in’ letter, and to test the veracity of the ‘dob-in’ letter. I do not accept that argument. The applicant did not say to the Tribunal that the purpose of confronting the writer of the ‘dob-in’ letter was to test the veracity of the information contained in the ‘dob-in’ letter. The applicant did not say, to the Tribunal, what the purpose of confronting the informant would be. A fair reading of the applicant’s statement to the Tribunal was simply that, if she knew who the informant was, she would get angry with them and argue with them.
As to the possibility of cross-examining the writer of the ‘dob-in’ letter, the Minister noted in oral submissions that s.366D of the Act provides that:
A person is not entitled to examine or cross‑examine any person appearing before the Tribunal to give evidence.
Strictly speaking, the writer of the ‘dob-in letter’ was not a person appearing before the Tribunal to give evidence. However, the applicant’s point was that the Tribunal should have called the writer of the ‘dob-in’ letter to give evidence to enable the applicant to cross-examine the writer. Even so, if the Tribunal had called the writer, s.366D of the Act would have come into play, and the applicant would not have been able to cross-examine the writer.
The applicant then argued that the Tribunal should have called the writer of the ‘dob-in’ letter and the Tribunal cross-examined the writer itself. The Minister argued that was tantamount to arguing that the Tribunal should have made enquiries. The Minister argued that the very limited circumstances in which the Tribunal can be required to make enquiries were not satisfied in this case: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39. In that case, the High Court said:
25.Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (citation omitted)
26.The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
The High Court in SZIAI did not determine that there was ever a duty to enquire, on the basis that it was unnecessary to resolve that question in SZIAI. However, the High Court did indicate that such a duty might arise where there was an obvious inquiry about a critical fact, the existence of which is easily ascertained. I do not consider that the present circumstances meet those criteria. Presumably, if the Tribunal had called the writer of the ‘dob-in’ letter as a witness, he or she would have simply repeated the information in the ‘dob-in’ letter. The Tribunal would not have been in a position to effectively cross-examine the writer. The exercise would have been pointless.
Additionally, calling the writer to give evidence would have exposed his or her identity, because it would not have been subject to exemptions under s.376 of the Act. That would have breached the public interest immunity determined by Judge Blake.
The applicant also argued that, apart from calling the writer of the ‘dob-in’ letter to give evidence, the Tribunal could have checked for itself:
(a)who lived at the address where there applicant’s sponsor was said to live with his long-term partner;
(b)whether they had a son; and
(c)whether the alleged long-term partner was in receipt of Centrelink benefits.
While I accept that such enquiries may have clarified matters, I am not satisfied that they could so easily have been made that the Tribunal was obliged to undertake them.
Finally, in relation to ground 1, the applicant argued that the Tribunal placing weight on the ‘dob-in’ letter was unreasonable in the circumstances of:
(a)the allegations being untested;
(b)the identity of the writer of the ‘dob-in’ letter being undisclosed; and
(c)the applicant being ‘ambushed’ at the hearing.
For this argument, the applicant relied on VEAL, where the High Court said at [29] that:
… No doubt the appellant’s response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. …
In other words, the High Court countenanced the possibility that, because the credibility of the writer of the ‘dob-in’ letter had not been tested, it may be unreasonable for the Tribunal to place weight on the ‘dob-in’ letter.
The parties were in dispute about whether it was common practice for the Tribunal to decline to place weight on ‘dob-in’ letters where the identity of the writer was not disclosed. There was no evidence either way. I cannot give any weight to either submission.
The Minister argued that the purpose of s.376(3) of the Act was to empower the Tribunal to rely on information in circumstances such as the present. That may be so. However, VEAL was decided after s.376 of the Act existed in its present form. Section 376 of the Act must therefore be read subject to VEAL.
Moreover, the Full Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; (2017) 158 ALD 198; [2017] FCAFC 176, said at [98] unanimously, in respect of the equivalent of s.376 of the Act that applies to the Immigration Assessment Authority:
… the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense…
In my view, in the circumstances of this case, it was unreasonable in the legal sense and a jurisdictional error for the Tribunal to place weight on the ‘dob-in’ letter.
The applicant did not raise the point, but, in my view, it was also unreasonable for the Tribunal to not put the allegations in the ‘dob-in’ letter to the applicant’s sponsor. He was at the hearing but excluded from the hearing room when the Tribunal questioned the applicant, and when the Tribunal put to her the allegations in the ‘dob-in’ letter. Later, the Tribunal questioned the applicant’s sponsor at length, but did not tell him about the allegations in the ‘dob-in’ letter, or seek his response. That is surprising because the allegations were primarily about him. His reaction when first told of the allegations could have been very revealing. As noted above, s.376(3) of the Act specifically empowers the Tribunal to give information to which that section applies to a witness in the matter.
In any event, for the reasons discussed above, I am satisfied that ground 1 is made out.
GROUND 2
The second ground of review in the amended application is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper consideration to the applicant’s submission as to the credit and motivation of the author of the ‘dob-in’ material.
Particulars
a)The Tribunal put limited particulars of the ‘dob-in’ material to the applicant for comment, without disclosing the source of the material.
b)The applicant responded that the author of that material may be motivated by jealousy or spite in relation to the business of the applicant’s husband and was therefore not credible.
c)The Tribunal at [46] found that it “cannot look behind whether third parties are jealous or not jealous of an individual’s business”, thereby failing to consider the applicant's response to the ‘dob-in’ material.
When the Tribunal put the allegations in the ‘dob-in’ letter to the applicant, the transcript shows that she denied the allegations, and said that the ‘dob-in’ letter may have been written by her sponsor’s (former) business partner who was jealous and something indistinct about the partnership dissolving. The Tribunal slightly misunderstood this statement, recording that the applicant said that the informer might be jealous or envious of the business operations of the sponsor. In any event, the Tribunal said that it:
… cannot look behind whether third parties are jealous or not jealous of an individual’s business.
The applicant submitted that, by simply saying that it could not assess whether the informant was jealous, the Tribunal failed to engage with the submission.
The Minister submitted that the Tribunal weighed up the response by the applicant against the features of the ‘dob-in’ letter that gave it credibility. The Tribunal said those features were:
(a)the ‘dob-in’ letter was detailed;
(b)the writer had put their name to the letter;
(c)various people are named in detail;
(d)financial, visa, and home address details were supplied; and
(e)the allegations were internally consistent.
Those features of the ‘dob-in’ letter do give it some, but by no means indisputable, credence. However, the basic problem was identified by the Tribunal, namely, that it could not assess whether the ‘dob-in’ letter was motivated by jealousy. A corollary of the ‘dob-in’ letter being motivated by jealousy was that it may not be true. That brought into play the statement from VEAL set out above, namely, that being unable to assess the credibility of the writer of the ‘dob-in’ letter:
… may well leave the Tribunal in a position where it could not decide whether the allegations made had substance.
Obviously, if the Tribunal could not decide whether the allegations had substance, it had to disregard them. For these reasons, I consider that the Tribunal fell into jurisdictional error. Ground 2 is made out.
GROUND 3
The third ground of review in the application is:
3.The decision of the Tribunal was affected by jurisdictional error in that was based on one or more findings that were irrational.
Particulars
a)The Tribunal’s conclusion at 18 that the financial position of the parties “show inconsistency with a spousal relationship” is irrational in that it cannot be supported by the evidence before the Tribunal and is inconsistent with the Tribunal’s own prior findings.
b)The Tribunal’s finding at [24] as to “concerns about whether the parties have shared a household as a married couple” is irrational in that it cannot be supported by the evidence before the Tribunal and is inconsistent with the Tribunal’s own prior findings.
c)The Tribunal’s finding that the sponsor's evidence that the applicant did not suffer from “illnesses” was inconsistent with the applicant’s “declared depression” is irrational in that it cannot be supported by the evidence before the Tribunal.
Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 at [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; (2020) 383 ALR 407; [2020] HCA 34, the High Court said at [20]:
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
(citations omitted)
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; (2016) 329 ALR 491; [2016] FCAFC 11 Allsop CJ said:
11.The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
12.Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
In BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24, the Full Court of the Federal Court said at [61]:
Nevertheless, there is merit in the submission for the appellants that a conclusion as to whether the Authority was satisfied that the Court Documents were credible could not be reached by a process of collecting the evidence that cast doubt on their credibility. An approach which focussed only upon the material that supported a conclusion that the Court Documents were not credible was not consistent with the statutory task which required the Authority to act reasonably in forming the required state of satisfaction. It would be a 'quest to disbelieve' instead of an objective evaluation of all the material. The same would be the case irrespective of whether the test as to credible personal information is whether the information is open to or capable of being accepted or whether it allows the Authority to form a final view as to its credibility. If the Authority adopted a one-sided perspective then that would be an unreasonable manner in which to approach the relevant fact-finding task.
a. financial circumstances
The Tribunal said at paragraph 18 of its reasons for decision that:
The financial position of the parties shows inconsistency with a spousal relationship given the circumstances.
The Tribunal did not explain what the inconsistency was and did not explain what the circumstances were. The Tribunal recorded, and seemed to accept, that:
(a)the sponsor’s wages were used for the mortgage repayments and rent, and the applicant’s for expenses and groceries;
(b)the applicant and her sponsor had a joint bank account, which had ‘a considerable number of entries’;
(c)the applicant could identify entries in the joint account pointed out by the Tribunal, and had invoices for other purchases;
(d)the applicant knew that the sponsor was paid by cheque;
(e)the sponsor had a property in his name alone; and
(f)the applicant could identify the address, the date of purchase and the purchase price.
The Tribunal also recorded that the sponsor stated that he borrowed the deposit for the property from the uncle. The Tribunal recorded that the applicant had said that she had not been a joint proprietor of the property because she was not a permanent resident and could not go on the legal documents. The Tribunal did not record that the property the sponsor bought was the property the applicant lived in.
The court invited the parties to provide post-hearing submissions on whether the applicant could have bought the property jointly with her sponsor. The position seems to be that she would have needed the approval of the Foreign Investment Review Board. While it is not impossible to obtain approval from the Foreign Investment Review Board, it was probably an excessively costly and complicated exercise for a unit in Springvale Road, Springvale.
In any event, the Tribunal concluded:
17.Whilst there is some knowledge on the part of the applicant of the financial arrangements of both parties, the broader ad hoc nature of the finances is puzzling. Couples can sometimes use one income for spending and another for mortgage payments, but there does not appear to be a broader mutual financial plan, with such an arrangement or practice being a part of the plan. The sponsor stated that he borrowed the deposit for the property from an uncle in Vietnam. This seems more like an independent financial purchase of his own.
18.The financial position of the parties shows inconsistency with a spousal relationship given the circumstances.
Basically, the Tribunal seems to have considered that because the sponsor was the sole owner of the property, and because his wages were used to pay the mortgage on that property and the applicant’s wages were used for other expenses, that the applicant’s and her sponsor’s financial arrangements were inconsistent with a spousal relationship. That would probably come as a surprise to a lot of married couples who have similar arrangements.
However, I do not consider that this rises to the level of an irrational finding. I consider that it was an assessment that was open to the Tribunal, although it was not one that I would have made.
b. shared household
On the topic of a shared household, the Tribunal said:
19.Joint bank account statements and some tenancy documents and utilities accounts addressed to the parties at a common address are among the items of evidence to support claims that the parties have established a household together. The parties were able to describe their living arrangements in some detail certain household and regular tasks at home and how they support one another. I give these considerations regard. Children are not cared for.
20.However, the above documents and information have only limited probative value. The parties claim to have lived together continuously since 2014, yet, I have concerns about the household aspect.
21.The written declarations submitted by various individuals are of a more general nature and on the whole are not detailed regarding the household position of the parties. The declarations do not enlighten the Tribunal about routines in the household and the parties[’] home life and interaction with others. These descriptions do not satisfactorily allay my concerns about household factors. I am in a similar position with the evidence of the witness Liem Chi Dang, who appeared as far as she was able to describe the parties’ lives, yet her knowledge of their daily interaction appeared limited.
22.There are a significant number of photographs before the Tribunal, submitted by the applicant, which show the parties in a variety of social situations, including at what is said to be their home. I give them regard. However this is not necessarily indicative of the existence of a household.
23.The overall concern that arose during the hearing and from an examination of the submitted material is that there is very little third-party collaboration of the existence of a household. That which exists is general, and generic, and there seems a hesitation on the part of witnesses and declarants to commit to saying that the parties are in a household together or to discuss the household’s details. The witness Liem Chi Dang had seen the parties at their home but the remarks were brief. James Huynh in his declaration of 16 March 2015 touches very lightly on the topic of the parties living together, although another declarant, Tan Dat Huynh mentions domestic duties being shared. Residing at one point in the same home in and of itself does not necessarily equate to a spousal household of married persons.
24.In view of the range of matters mentioned, I have concerns about whether the parties have shared a household as a married couple in the relevant period and give this aspect lesser weight
The Tribunal’s finding that the applicant’s and her sponsor’s descriptions of the detail of their living arrangements were of ‘only limited probative value’ was not explained. That finding was not self-evident. Indeed, it was surprising in view of the level of detail that the Tribunal sought during the hearing from the applicant and, separately, her sponsor, and the correlation between the details provided by them. The Tribunal did not set out that evidence in its reasons for decision, but it was extensive. It must be emphasised that the sponsor was not in the hearing room when the applicant gave her answers.
A not exhaustive list of the questions asked by the Tribunal and the answers given by the applicant and her sponsor, which is taken from the transcript of the Tribunal hearing, is as follows:
Tribunal’s question
Applicant’s answer
Sponsor’s answer
Who does the housework?
Applicant
Applicant
What day is the rubbish collection?
Thursday
Thursday
Who puts the bins out?
Sponsor
Sponsor
Have you got a washing machine?
Yes
Yes
Top loader or front loader?
Front
Front
Which side of the bed does the applicant sleep on
Right
Right
Who does the cooking?
Sponsor
Sponsor
Does the sponsor have any health conditions?
High blood pressure for two years
Stress and hypertension
Has the applicant suffered from depression?
Yes
Yes
Has the applicant been on the pill?
No
No
Are you using contraception now?
No
No
Did you use contraception previously?
Yes, condoms
Yes, condoms
Do you plan to have children?
Yes, hopefully one boy and one girl
Yes, hopefully a girl then a boy
Does the applicant drink alcohol?
A little
No
Does the sponsor drink alcohol?
Yes, a beer every night
Yes, beer
Except for the applicant saying that she drinks a little alcohol and her sponsor saying that she does not drink alcohol, their answers were identical. The difference on the question of the applicant’s alcohol consumption was not a point that the Tribunal noted. That is probably because it is insignificant, given that the applicant might have meant, for example, that she drinks half a glass on special occasions, and the sponsor might have meant she does not drink regularly.
In any event, the Minister’s written submissions on this point were as follows:
The Applicant again overlooks, or seeks to summarily discard, critical aspects of the Tribunal’s reasoning. In this respect, it is significant that, in considering whether there was a shared household, the Tribunal found that:
44.1.the joint bank account statements, some tenancy documents and utilities accounts, and the parties’ capacity to describe their living arrangement had only “limited probative value”;
44.2.the written declarations submitted by various individuals to prove the existence of a shared household were of a “general nature” and were not “detailed regarding the household position of the parties”;
44.3.the declarations did not “enlighten the Tribunal about routines in the household and the parties’ home life and interaction with others”;
44.4.the witness called on behalf of the Applicant had only “limited” knowledge of the parties’ “daily interaction”;
44.5.there is little third-party corroboration of the existence of a household, with that available being general and generic and with the witnesses having “hesitation … to commit to saying that the parties are in a household together or to discuss the household’s details”; and
44.6.the significant number of photographs, while to be given regard, were “not necessarily indicative of the existence of a household”.
(footnotes omitted)
The applicant’s arguments, however, were that:
(a)The Tribunal did not explain why the matters mentioned in 44.1 were of ‘only limited probative value’ and it is by no means obvious why they were of ‘only limited probative value’. On the contrary, that evidence, properly considered, would have been of substantial probative value.
(b)The written declarations of other people as to the nature of the household:
(i)could only be general in nature because they did not live in the household with the applicant and her sponsor;
(ii)for the same reason, they could not enlighten the Tribunal about their home life;
(iii)for the same reason, they could only have limited knowledge of their daily interactions; and
(iv)for the same reason, went as far as they could be expected to.
(c)Photographs obviously cannot prove the existence of a household, but they are not without any evidentiary value.
Interestingly, the photographs show the applicant and her sponsor in a range of locations, wearing different clothes and with different people. It would take a lot of effort to manufacture them.
The Tribunal did not mention it, but one witness, Ms Pham, attended the Tribunal hearing and said that she had dinner at the home of the applicant and her sponsor ‘a lot’, including on the previous Sunday. The Tribunal did not find that Ms Pham had lied, or was mistaken, so it would appear that the Tribunal accepted Ms Pham’s evidence. In such circumstances, it is difficult to see how her evidence could be treated as anything other than substantial support for the applicant’s claims.
However, the Tribunal just brushed aside the evidence that supported the applicant and her sponsor sharing a household, asserting that the evidence was ‘of only limited probative value’. I consider that conclusion to be without intelligible justification and unreasonable.
c. the applicant’s depression
In relation to the applicant’s depression, the Tribunal said at paragraph 40 of its reasons for decision that:
Questions also arise as to the seriousness of the parties on matters of mutual support. The sponsor was asked about stress in the relationship. He said there was none. He was asked if the applicant had illnesses and he replied that she did not. This is at odds with the declared depression of the applicant, which the sponsor only acknowledged when prompted in the hearing. That this is not readily recalled is a concern. There is also the matter of saying that there was no stress when depression has been evident. It is difficult to see how this would not be a stressor to parties in a committed relationship, thus there is an apparent contradiction and/or lack of interest in the welfare of a spouse. Mutual commitment is questionable here.
The applicant argued that the responses of the applicant and sponsor were not at odds at all, but were entirely consistent.
The following exchange occurred between the applicant and the Tribunal at pages 21 to 22 of the transcript:
[MEMBER]: What about you? What’s your health like?
MS BUI: Sometimes I have back pain.
[MEMBER]: Have you been to the doctor?
MSBUI: No.
[MEMBER]: You said that you had suffered from depression.
MS BUI: (Direct) Yes.
[MEMBER]: Did you go to the doctor?
MS BUI: (Through interpreter) Yes, before I did.
[MEMBER]: How are you now?
MS BUI: Better after we got married, things have become more stable.
The following exchange occurred between the sponsor and the Tribunal at pages 46 to 47 of the transcript:
[MEMBER]: Okay. What sort of things cause stress in your relationship?
MR DANG: Nothing.
[MEMBER]: Has your wife ever suffered from any illnesses?
MR DANG: No.
[MEMBER]: Has she suffered from depression?
MR DANG: Yes.
[MEMBER]: When was that?
MR DANG: About a year.
The Tribunal was critical of the sponsor for only acknowledging the applicant’s depression when prompted. However, the applicant also only acknowledged it when prompted. It seems to me that their answers are explicable by the fact that the applicant was asked about her health, and the sponsor was asked about her illnesses, rather than being asked about mental health and mental illnesses. While in recent times it has become more common to regard mental health issues as simply health issues, it seems to me that, at the time of the Tribunal’s hearing, in 2017, it was perfectly normal to interpret questions about health and illnesses as being about physical health and physical illnesses.
The Tribunal said that the applicant’s depression would have been a stressor in the relationship, when the sponsor said that there were no stresses in the relationship. However, both parties said that the applicant’s depression was historical. The Tribunal’s question to the sponsor about stress was expressed in the present tense. Consequently, the applicant’s and the sponsor’s evidence coincided on this point, and it was consistent for the sponsor to say that there were no current stressors in the relationship. The Tribunal’s conclusion, that the sponsor showed a lack of interest in the applicant’s welfare, was without an intelligible justification and unreasonable.
The Minister’s response
The Minister’s response to these issues was to highlight other aspects of the Tribunal’s reasons for decision that supported the overall conclusion, and to say that, if the Tribunal did err, as alleged by the applicant, the errors were not material, in the sense that they would not have altered the outcome.
The Minister relied on Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; (2018) 92 ALJR 780; [2018] HCA 34, where the High Court said:
30.Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
31.Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(citations omitted)
The Minister argued that other findings made by the Tribunal were sufficient to sustain the decision. However, those other findings were not entirely separate strands of reasoning, that were unaffected by the unreasonable findings. The Tribunal relied on all of the matters that it made findings about to reach its conclusion. Thus, it cannot be said that, but for the unreasonable findings, the decision could not have been different.
Moreover, the findings that the Minister relied upon to support the Tribunal’s ultimate conclusion were themselves questionable. For example, the Tribunal criticised the applicant and sponsor for not having a big wedding, which the sponsor said was for financial reasons. The Tribunal seemed to think that that reason for not having a big wedding was inconsistent with the sponsor paying off debts. However, the very paying off of those debts supports the claim that there no money left to have a big wedding.
Conclusion on ground 3
For these reasons, the unreasonable findings of the Tribunal were material, and were jurisdictional errors.
I am left with the impression that the Tribunal in this case was on a ‘quest to disbelieve’, and did not properly and reasonably assess the evidence before it. It also seems likely that the Tribunal, while saying that the ‘dob-in’ letter was merely ‘in harmony’ with its other concerns, placed determinative weight on the ‘dob-in’ letter, and then embarked on a ‘quest to disbelieve’.
GROUND 4
The fourth ground of review in the application is:
4.The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper consideration to evidence and submissions that were before it.
Particulars
a)The Tribunal questioned the applicant and the sponsor extensively at the hearing as to the intricate details of their lives together, including cooking, layout of the home and bedroom, who slept on which side of the bed, methods of contraception and other details.
b)The evidence of the applicant and the sponsor on those matters were consistent.
c)The Tribunal failed to give proper consideration to that evidence in its decision.
The applicant argued that the Tribunal questioned the applicant and the sponsor extensively about the detail of their relationship and they gave consistent evidence. However, the applicant argued, the Tribunal made no findings about these matters, and therefore either ignored them or did not consider them to be material. The applicant argued further that this meant that the Tribunal failed to deal with the case before it, and failed to exercise its jurisdiction.
The Minister noted that it is not necessary for the Tribunal to refer to every item of evidence before it. The Minister relied on ETA067 v Republic of Nauru (2018) 360 ALR 228; [2018] HCA 46, where the High Court said:
[13]The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
[14]Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
(citations omitted)
A complication in the present matter is that reg.1.15A(2) of the Regulations requires that the Tribunal consider ‘all of the circumstances of the relationship’.
The Minister submitted that the Tribunal did, in fact, consider all of the matters it canvassed in the hearing, including how the applicant and the sponsor met, the marriage proposal, the wedding plans, and the details of their lives together. That is strictly speaking correct.
However, the complaint is that the Tribunal did not properly consider the various matters. That is also correct. As discussed above, the Tribunal made unreasonable findings, and was on a ‘quest to disbelieve’. That meant that the Tribunal did not properly consider much of the evidence before it.
CONCLUSION
As material jurisdictional error has been established, the Tribunal’s decision will be set aside, and the matter will be remitted to the Tribunal to determine according to law. The Minister will be required to pay the applicant’s costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 13 April 2022
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