Burton v Minister for Immigration - [2005] FMCA 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURTON & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 104

MIGRATION – Review of Migration Review Tribunal decision – cancellation of Partner (Migrant) (Class BC) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.101, 102, 104, 105, 107, 108, 109, 359A, 362, 375A, 474
Judiciary Act 1903 (Cth), s.39B
Statutory Declarations Act 1959 (Cth), ss.6, 8, 11
Migration Regulations 1994 (Cth), reg.2.41

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26Saleem v Migration Review Tribunal [2004] FCA 234
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait and Islander Affairs (2000) 75 ALR 706
NAVK v Minister for Immigration [2004] FCAFC 160
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
W396 of 2001 v Minister for Immigration & Multicultural Affairs (2002) 68 ALD 69
Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686
Broussard v Minister for Immigration & Ethnic Affairs per (1989) 21 FCR 472
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Singh v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Sackville J, 6 December 1994, unreported)
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Sargood Brothers v Commonwealth (1910) 11 CLR 258
Kioa v West (1985) 159 CLR 550
Aguirre v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1191
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27

Applicants:

WARIJACHI DEVI BURTON
VITASH KUMAR
SHAILENDRA ATISH KUMAR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 919 of 2004

Delivered on:

9 June 2005

Delivered at:

Sydney

Hearing dates:

17 November 2004 & 20 January 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicants

Ms A Cotter-Moroz

Solicitors for the Applicants

Ramrakha Jenkins

Counsel for the Respondent:

Mr R Beech-Jones

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The primary applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 919 of 2004

WARIJACHI DEVI BURTON
VITASH KUMAR

SHAILENDRA ATISH KUMAR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 3 March 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 June 2003 to cancel the Partner (Migrant) (Class BC) visa, therefore automatically cancelling the visas of two of the applicant’s children who were secondary visa applicants.

Background

The applicant lodged a combined application for a Subclass 309 (Spouse) (Provisional) visa and a Subclass 100 (Spouse) visa on 7 July 1997. This application was lodged on the basis of a claim of spousal relationship between the applicant and Stephen Burton (“the nominator”), an Australian citizen, born at Liverpool in the State of New South Wales on 14 December 1962. The application was refused by a delegate of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 5 March 1998 (Court Book p.72) (“CB”). On 27 March 1998 the applicant lodged an application for a review of that decision with the then Migration Internal Review Office (MIRO). The MIRO affirmed the decision to refuse the visa on 11 December 1998 (CB pp.76-97). On 23 February 1999 the applicant lodged an application for a review of that decision with the Immigration Review Tribunal (IRT). The IRT became the Migration Review Tribunal on 1 July 1999. This Tribunal, differently constituted, remitted the decision to refuse the visa on 27 October 1999. The applicant was granted a Subclass 100 visa on 7 January 2000 (CB pp.98-100) and arrived in Australia on that visa on

6 February 2000 accompanied by two of her three sons.
On 27 April 2001 the Department received an allegation that the marriage of the applicant to the nominator was contrived. The Department initiated an investigation on 13 June 2001. As part of its investigation, the Department obtained copies of the applicant’s incoming passenger cards which disclosed that the applicant had spent four periods outside Australia during the period of March 2000 to September 2002.
The Department also undertook a check of the New South Wales Police records which disclosed that the applicant was charged with shop lifting on 2 February 2001 and was fined $200. The applicant’s third son, Ritesh Kumar (born 23 January 1976) arrived in Australia as a holder of a Subclass 115 (Remaining Relative) visa on 7 October 2001.
On 14 January 2003, the applicant was issued with a written Notice of Intention to cancel the visa which stated that the Department considered that she may not have complied with ss.101, 102, 104 and 105 of the Migration Act 1958 (Cth) (“the Act”) (CB pp.101-105). In the Notice the Department indicated that it held information which stated that the applicant was not in a genuine and continuing spousal relationship with Stephen Burton when she was granted the Subclass 100 visa. The Notice also noted other incorrect information that the visa applicant had supplied to the Department when applying for the visa.
Between February and May 2003 the Department had various meetings with the applicant and the nominator which resulted in the decision of the delegate on 30 June 2003 to cancel the applicant’s visa (CB pp.170-181). The applicant lodged application for a review of the delegate’s decision with the Tribunal on 8 July 2003 (CB pp.183-188).

The Tribunal’s findings and reasons

The delegate considered that the applicant had not complied with ss.101, 102, 104 and 105 of the Act. The visa was cancelled under ss.108 and 109 of the Act. The Tribunal took into account the material contained in the Departmental files and the evidence presented by the applicant at the hearing and indicated that it was satisfied that there was never a genuine marital relationship between the applicant and the nominator. It found that the spouse visa application lodged on 7 July 1997 was untruthful and consequently s.101 of the Act was breached by the applicant (CB pp.178-179).

Application for review of the Tribunal’s decision

On 29 March 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 seeking a review of the Tribunal’s decision dated 3 March 2004, which affirmed the delegate of the respondent’s decision to cancel the applicant’s spouse visa. A number of amendments were sought to the original application. However, pursuant to an order made on 20 January 2005, a document identified as the third amended consolidated application was filed in Chambers on 21 January 2005. That document contained the following grounds:
1.The Tribunal failed to comply with the requirements of section 359A of the Act in that it failed to provide the applicant, by one of the means specified in s 359A of the Act (or at all), with the particulars of information relating to:
a)the initial allegation on 27 April 2001 that the marriage was not genuine;
b)the Department’s interview with her sister and brother-in-law, Saraswati Burton and Lionel Burton (“Lionel”) 6 May 2003 in which they allegedly stated in part that Lionel had arranged the marriage; that the applicant had paid her husband to marry her; that the applicant would pay her husband $5,000 to attend the Departmental interview; the statutory declaration allegedly completed by Lionel;
c)the Department’s telephone call received from the applicant’s husband in which he allegedly state he is withdrawing support for the application;
d)the letter received by the Department on 14 May 2004 in which it is alleged that he withdraws his support;
e)the various addresses at which it is alleged Mr Burton is to have been living and the periods during which it is alleged he had been living at these addresses
which was the reason or part of the reason for affirming the decision under review
2.The Tribunal failed to give the applicant copies of the following adverse material on its files:
a)the initial allegation on 27 April 2001 that the marriage was not genuine;
b)the Department’s notes of its interview with her sister and brother-in-law, Saraswati Burton and Lionel Burton (“Lionel”) 6 May 2003 in which they allegedly stated in part that Lionel had arranged the marriage; that the applicant had paid her husband to marry her; that the applicant would pay her husband $5,000.00 to attend Departmental interview; the statutory declaration allegedly completed by Lionel
c)the Department’s file note of the telephone call received from the applicant’s husband in which he allegedly state he is withdrawing support for the application;
d)the letter received by the Department on 14 May 2004 in which it is alleged that he withdraws his support.
3.The Tribunal failed to address or make any findings in relation to the applicant’s claim that “she and her family members are all contributing to the Australian economy and the community” contained in the letter dated 6 June 2003 from her representative, ANISCO Migration Agency.
If the Tribunal’s reference to there being “no information” was meant as a reference to no information or evidence of sufficient probative value then the Tribunal failed to give the applicant an opportunity to supplement the perceived deficiency in relation to this mandatory prescribed circumstance
4.Deleted
5.The Tribunal failed to disclose to the applicant the particulars of various addresses at which it is alleged Mr Burton is to have been living and the periods during which it is alleged he had been living at these addresses
6.The tribunal erred in applying a standard of proof
7.The Tribunal failed to address or make any findings or take into account that each of the following namely, the husband Stephen Burton, his uncle Lionel Burton and Lionel Burton’s wife Saraswati Burton made inconsistent statements on oath.
8.The Tribunal failed to accord natural justice to the applicant and failed to comply with section 360 in the following manner:
It failed to give due weight to the declarations provided by the applicant in support of her application.
It made adverse findings against the applicant for not calling additional supporting witnesses without advising the applicant of the consequence of not calling those witnesses and/or not affording her an opportunity of calling them.
It failed to exercise its own discretion to further enquire into or call these additional witnesses.
9.The Tribunal asked itself the wrong question in its consideration of the applicant’s compliance with ss 101, 104 an 105 of the Act.
The only relevant question that the Tribunal could ask itself for the purposes of s 108(b) of the Act was whether or not there was compliance by the applicant in the way described in the particulars of the Notice of Intention to Consider Cancellation under s 109 of the Act dated 14 January 2004 (“the Notice”)
In relation to ss 101, 104 and 105 of the Act, the Notice contained the following particular:
“you may have failed to provide information to the Department about the true nature of your relationship with Stephen Burton”
10.The Notice failed to comply with s 107 of the Act in that it failed to provide particulars of alleged non-compliance with ss 101, 104 and 105 of the Act. (Errors in original)

Notice to Produce

On 1 December 2004 the applicant in these proceedings filed and served on the respondent a Notice to Produce seeking the following documents:
1.All records, including but not limited to statements, or notes of interview or diary entries of all allegations alleged to be confidential but limited only to those, if made by any of the three Burtons including the following:
(a)The initial allegation on 27 April 2001;
(b)The interview with Lionel Burton and Saraswati Burton on
6 May 2003;
(c)The statutory declaration allegedly completed by Lionel Burton;
(d)The applicants seek production of these documents only if made by any of the Burtons and say that in such circumstances the information could not be withheld as confidential;
(e)The Department’s telephone call received from the applicant’s husband in which he allegedly stated that he was withdrawing support for the application;
(f)The letter received by the Department on 14 May 2004 in which it is alleged that he withdraws his support; and
(g)The notes of various addresses at which it is alleged Mr Burton is to have been living and the periods during which it is alleged he had been living at these addresses.
On 14 December 2004 the respondent filed an affidavit of Andrew John Crockett sworn on 17 November 2004 (“the affidavit of

Mr Crockett”) which had annexed and marked “A” a copy of a letter from the Department to the Tribunal dated 14 July 2003 and a certificate dated 14 July 2003 regarding the Tribunal’s discretion in relation to disclosure of Folio 35 of the Department File CLF2003/35811 and Folios 3, 16-17, 30-41, 65-86, 95, 127-131, 133-136, 146, 151 and 158 of the Department File CLF2001/330025 under s.375A of the Act.
Confidential sealed copies containing the material referred to in the paragraph above were filed in Court. The respondent made submissions that the confidential documents filed in Court ought not to be produced and opposed production of those documents on the basis of the certificate given by the Minister of Immigration & Multicultural & Indigenous Affairs pursuant to s.375A of the Act on the grounds that that section overrides the obligations of s.359A and s.362.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

The proceedings

For the purposes of these proceedings, the following materials have been either filed or tendered to be admitted into evidence:
a)A Court Book prepared by the respondent solicitors and filed and served on 15 June 2004.
b)The affidavit of Mr Crockett sworn on 17 November 2004.
c)A Notice to Produce dated and filed 1 December 2004 issued by the solicitors of the applicants (Notice of Motion).
d)A Notice of Motion dated 13 December 2004 filed by the solicitors for the respondent seeking an order to set aside the Notice to Produce.
e)An affidavit of Karam Chand Ramrakha sworn on 13 January 2005 (“the affidavit of Mr Ramrakha”). Annexed to the affidavit of Mr Ramrakha and marked with the letter “C” is a transcript of the hearing before the Tribunal on 5 February 2004 (“the transcript”).
f)An affidavit of Ritesh Kumar sworn on 16 January 2005.
g)An affidavit of Shailendra Kumar sworn on 16 January 2005.
h)An affidavit of Bala Govindan Nair sworn on 17 January 2005.
i)An affidavit of Warijachi Devi Burton sworn on 17 January 2005.
j)Leave was granted to file the third amended consolidated application in order that all the various motions seeking to amend the original application were consolidated into a single document. This was subsequently filed in Chambers on 21 January 2005.

Applicant’s submissions

Ms A Cotter-Moroz of Counsel, appearing for the applicant, submitted that ground 1 of the amended application contended the Tribunal failed to comply with the requirements of s.395A of the Act in that the Notice dated 23 October 2003 ought to have included the particulars of any information the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision: see Saleem v Migration Review Tribunal (“Saleem”) at [43]-[44], while in the context of s.107, was submitted that the principle was applicable to particulars required to be provided under s.359A. Counsel submitted that while the Tribunal correctly identified what was called for under s.359A it failed to provide particulars in the Notice regarding information before it relating to the applicant’s relationship with Stephen William Burton. It was conceded that the Tribunal correctly provided particulars in relation to the statement regarding criminal convictions indicated on the applicant’s Incoming Passenger Card dated 11 September 2002.
In respect of ground 2 Counsel for the applicant submitted that each of the particulars (a)-(d) were considerations personal to the applicant and were taken into account against her. Counsel further submitted that the rules of natural justice required the applicant be given the opportunity to comment or contradict these issues. It was submitted that in this case the people who had each previously provided sworn statements in support of the application had now provided documents and/or information that were inconsistent with that previously provided and the latter, which were the considerations personal to the applicant, were taken into account against her. It was further submitted that the applicant ought to have been given the opportunity to deal with each of these matters in an appropriate way. Such an appropriate way, it was contended, would have been to provide the applicant with copies of adverse material on its files as set out in ground 2 (a)-(d).
Counsel submitted that at no stage was the applicant provided with such adverse material and was therefore not given the opportunity of dealing in an appropriate way with each of these matters: Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait and Islander Affairs (“Pilbara”) per Merkel J at [70]-[71]. Counsel further submitted that it was not sufficient in the circumstances of this case, having regard to prior inconsistent sworn statements, for the Tribunal to withhold documents and merely give the applicant the “gist” of the allegations. It was submitted that there was nothing to suggest that any of the matters raised in ground 2 (a)-(d) were given in confidence: cf NAVK v Minister for Immigration at [87].
It was submitted that the Tribunal therefore failed to afford the applicant natural justice by failing to give access to the written material referred to in ground 2 (a)-(d) which was given or produced to the Tribunal for the purposes of the review and which were adverse to the applicant.

In respect of ground 5, Counsel for the applicant submitted that in failing to disclose to the applicant the address details of Stephen Burton, the Tribunal failed to give the applicant an opportunity to comment or contradict or deal with these matters in an appropriate way: Pilbara.
In respect of ground 3, Counsel for the applicant submitted that pursuant to s.109, the Tribunal was required to have regard to the prescribed circumstances set out in reg.2.41, being the relevant considerations to which the Tribunal was obliged to take into account, address and make findings in relation to. It was submitted that one of these prescribed circumstances that the Tribunal was required to consider was “any contribution made by the holder to the community”. In that regard the applicant’s agent, Mr Ahmad Hemmad from ANISCO Migration Agency wrote to the Department in respect to the Notice dated 14 January 2003 (CB pp.132-133). Mr Hemmad specifically addressed the prescribed circumstances as follows:
“… she and her family are all contributing to the Australian economy and to the community …” (CB p.133)
Counsel submitted that the Tribunal failed to address this integer of the applicant’s claim and found “there is no information before the Tribunal in this regard”. It was submitted that the failure of the Tribunal to address this claim went to the core of the Tribunal’s jurisdiction and therefore failed to complete the exercise of jurisdiction embarked upon: Htun v Minister for Immigration & Multicultural Affairs (“Htun”) at 259; W396 of 2001 v Minister for Immigration & Multicultural Affairs (“W396 of 2001”) at 78-81.
In respect of ground 4, the applicant’s Counsel quoted the Tribunal’s decision as follows:
“The Federal Court has ruled that the standard of proof required in relation to breaches in Subdivision C of Division 3 (sections 97-115) because of the serious nature of the consequences, involves a ‘high degree of satisfaction’: Singh v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Sackville J, 6 December 1994, unreported); Tarasovski v Minister for Immigration (1993) 45 FLR 570.”
Counsel contended that the authority for this decision must now be open to doubt as more recent decisions have thrown doubt on the relevance of civil litigation concepts such as burden of proof and standard of proof in immigration cases: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) per Brennan CJ, Toohey, McHugh and Gummow JJ at 282-283.
In respect of ground 7, Counsel for the applicant submitted that inconsistent sworn statements had been provided to the Tribunal which were considerations personal to the applicant and were taken into account against her. It was submitted that, in general terms, it was an integer of the applicant’s claim that she and the Burtons had had a falling out and that they were jealous of her: see Transcript Questions 040-043, 050, 068-069, 080-085 and 093-095.
Counsel submitted that the Burtons had provided support for the applicant as follows:
a)Statutory declarations of Stephen Burton on 2 July 1997 (CB p.66) and 14 February 2004 (CB p.113);
b)Statutory declarations of Lionel and Saraswati Burton on 2 July 1977 (CB p.68) and 2 February 2004 (CB p.121, 117);
c)Stephen Burton sponsored the applicant and completed the Form 40 Sponsorship for Migration to Australia dated 2 July 1997 (CB pp.45-50);
d)On 27 March 1998 Stephen Burton sought a review of the decision to refuse a provisional visa to the applicant: (CB p.76 and Annexure “A” to the affidavit of Mr Ramrakha); and
e)On 23 February 1999 Stephen Burton and Lionel Burton attended a hearing before the Tribunal and gave evidence in support of the applicant: see Annexure “B” to the affidavit of Mr Ramrakha.
Counsel submitted that it must be noted that the statutory declarations provided by each of the three Burtons were provided after the applicant received the Notice of Intention to Consider Cancellation under s.109 of the Act and were included as part of her response to that Notice. It was submitted that in regard to this matter the Tribunal noted:
“It was stated by both witnesses that the review applicant’s sister and the nominator’s uncle had falsely accused the review applicant of being involved in a bogus relationship because they were jealous of her.” (CB p.212)
It was contended that the Tribunal did not address or make any further findings in relation to this matter and therefore failed to address this integer of the applicant’s claim. Counsel submitted that the Tribunal failed to address or make any findings at all about each of the Burton’s prior inconsistencies on oath and particularly the provision of statutory declarations. It was submitted that the Tribunal should have been aware of the provisions of ss.6, 8 and 11 of the Statutory Declarations Act 1959 (Cth) and in particular the consequences of making a false declaration pursuant to s.11 of that Act.
Counsel further submitted that the failure of the Tribunal to address this aspect of the applicant’s claim went to the core of the Tribunal’s jurisdiction and it therefore failed to complete the exercise of jurisdiction embarked upon: Htun; W396 of 2001.
In respect of ground 8, Counsel for the applicant, submitted that s.107 of the Act enables an applicant to provide a written response to a Notice issued pursuant to s.107 and pursuant to s.107(1)(b) the applicant provided a submission from her representative on
18 February 2003 (CB pp.209-210). It was submitted that pursuant to s.358 the applicant provided a submission from her representative (CB pp.195-199, 212, 198) and at the hearing the applicant referred to the statutory declarations provided by her (Transcript Q.027-031). However, Counsel contended, that the Tribunal by dismissing the statutory declarations and requiring each respective declarant to be at the hearing (Transcript Q.032), erroneously placed a burden of proof on the applicant. It was submitted that the only mention of the statutory declarations provided by the applicant in the Tribunal’s decision is its recital (CB pp.210-211), however, in its decision
(CB p.212), the Tribunal states “only the review applicant and one of her sons attended the hearing”.
Counsel further submitted that the Tribunal erred in that it made adverse findings against the applicant for not calling additional supporting witnesses without advising the applicant of the consequences of not calling those witnesses and/or not affording her the opportunity of calling them (Transcript Q.046-050). In the circumstances, it was submitted, the Tribunal ought to have informed the applicant of the consequences of not calling additional supporting witnesses and given her the opportunity to call the same or alternatively exercised its own discretion to further enquire into the matter.
In respect of ground 9, Counsel for the applicant submitted that in exercising its powers of review under the Act, the Tribunal must decide as the jurisdictional fact whether or not there was non compliance by the applicant in the way described in the Notice being in the manner particularised by the Notice: Saleem. It was submitted that the only particular contained in the Notice was contained in the following statement:
“Based on the information before me, I am of the opinion that you have provided incorrect information on your application and other documents provided as part of your application, lodged with the Department on 7 July 1997. In particular, you may have failed to provide information to the Department about the true nature of your relationship with Stephen Burton.” (CB p.103)
The Tribunal found that “there never was a genuine relationship” and that the applicant had breached s.101 of the Act (CB pp.213-214). However, it was submitted, the Tribunal did not address that issue required of it by s.108(b) in that it failed to make any specific findings in relation to the particular set out of the s.107 Notice. It was submitted that the Tribunal ought to have made findings so as to identify the following:
a)The incorrect information on the application and other documents provided as part of the application lodged with the Department on 7 July 1997; and
b)The information alleged not to have been provided about the true nature of the applicant’s relationship with Stephen Burton.
In respect of ground 10, Counsel for the applicant submitted that to have satisfactorily complied with s.107, the Notice ought to have included the specifics or particulars of any non compliance with ss.101, 102, 104 or105: Saleem at [43]-[44]. It was conceded that in relation to the alleged non compliance with s.102, the Notice satisfactorily complied with s.107. Counsel submitted that the Notice failed to comply with s.107 in relation to the alleged non compliance with ss.101, 104 and 105 and as such was fatally flawed and the exercise of power by the Tribunal in the circumstances was beyond jurisdiction.

Respondent’s submissions

Mr Beech-Jones, Counsel for the respondent, submitted in respect of grounds 1, 2 and 5 that although some documents were described in the Tribunal’s decision they were in fact covered by the s.375A certificate and no such disclosure was required. In particular:
a)the initial allegation on 27 April 2001 concerning the contrived nature of the marriage (CB p.209, [16]) is folio 3 of Departmental File CLF2001/30025;
b)the notes of the Departmental interview with Saraswati and Lionel Burton on 6 May 2003 (CB p.211, [27]) are folios 127 to 131 of Departmental File CLF2001/30025;
c)the note of the telephone call from Stephen Burton (CB p.211, [28]) is folio 146 of Departmental File CLF2001/30025;
d)the letter from Stephen Burton dated 14 May 2003 (CB p.211, [30]) is folio 151 of Departmental File CLF2001/30025; and
e)the material concerning the various addresses Stephen Burton lived at is to be found in folios 84, 83, 82, 80, 75, 74, 73, 67, 65, 33, 32 of Departmental File CLF2001/30025.
The respondent Counsel submitted that without the provision of a certificate under s.375A the material stated above would either have had to be provided to the applicant or she would have been entitled to receive particulars concerning it. However, it was submitted, in light of the certificate, s.375A prohibited the Tribunal from disclosing it to anyone including the applicant: Davis v Minister for Immigration & Multicultural & Indigenous Affairs (“Davis”). Counsel contended that the fact that the Tribunal chose to disclose the effect of some parts of the material during the hearing and in its decision does not alter the consequence that no jurisdictional error can be demonstrated by its failure to disclose the remainder.
In respect of ground 3, Counsel for the respondent submitted that, in the entirety of the materials submitted, only a brief suggestion was made on behalf of the applicant that she was making a contribution to the Australian community and that was the bare statement in her adviser’s letter (CB pp.132-133). It was submitted that the form of the economic contribution was not explained and whilst a work reference was supplied (CB p.137) it was not clear if it was meant to support a suggestion that she was making an economic contribution by working or to support a contention that she was an honest (and hardworking) person. Counsel contented that even if it was the former the Tribunal was entitled to consider holding employment to not be a sufficient contribution to warrant consideration. In these circumstances, it was submitted, that the Tribunal’s reference to there being “no information” can be read as a reference to no information or evidence of sufficient weight or probative value: Broussard v Minister for Immigration & Ethnic Affairs (“Broussard”) per Gummow J at 479.
In respect of ground 4, Counsel for the respondent submitted that there was nothing in the case of Wu Shan Liang to suggest that it was an error of law much less jurisdictional error for the Tribunal to refer to the phrase “standard of proof” as it did (CB p.214, [39]). It was submitted further that there was no authority directly overruling Singh v Minister for Immigration & Ethnic Affairs (“Singh”) (referred to at CB p.214, [39]). In any event, it was submitted, that if there had been any error on the part of the Tribunal in requiring a “high degree of satisfaction” before affirming a decision to cancel a visa it was an error in the applicant’s favour and s.108 does not, by its terms, impose such a stringent test on the decision maker.
Counsel for the respondent submitted that in regard to ground 7 the applicant’s submissions wrongly asserted that this was some “integer” or aspect of the applicant’s claims. It was submitted, however, that the relevant claim or issue for determination was the genuineness of the applicant’s relationship with Stephen Burton and that the statutory declarations were merely pieces of evidence relevant to that issue. Counsel submitted that the Tribunal was not obliged to expressly make findings about each piece of evidence before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (“Applicant WAEE”) and this was especially so in circumstances where it was precluded by s.375A from referring to certain evidence that it relied on.
In respect of ground 8, Counsel for the respondent submitted it was without substance for the following reasons.
a)Firstly, there was no evidentiary foundation for the assertion that the Tribunal failed to consider the statutory declarations.
It expressly referred to them in its decision (CB p.210, [23]).
It was not required to expressly address each of them later in its reasons. This was particularly so where restrictions were imposed on what it could disclose concerning its reasoning process.
b)Secondly, the Tribunal’s decision makes no adverse finding or comment in relation to any alleged failure of the applicant to make deponents of the statements available at the hearing. The Tribunal’s reasoning process cannot be inferred from comments made during the course of the hearing where its reasons are later reduced to writing.
c)Thirdly, no attempt was made by the applicant to identify the foundation of any obligation to call the various deponents. What questions were the Tribunal required to ask? What answers would have been given? The Tribunal was entitled to reject the contents of the declarations without calling the witnesses.
d)Fourthly, sub-section 360(1) provides that :
“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.”
e)There was no basis for any suggestion that the Tribunal did not comply with this provision. It was not a foundation for an obligation on the Tribunal to call witnesses even if it proposed to reject their evidence. Sections 361 and 362 enable an applicant to request the Tribunal to call witnesses.
f)Fifthly, to the extent that this ground involved an allegation of a failure to afford procedural fairness it was precluded by s.357A of the Act which provides that “[Division 5 of part 5 of the Act] was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. This topic, namely the calling of witnesses, was “dealt with” by ss.361 and 362. In these circumstances, there was no room for natural justice to operate.
In respect of ground 9, Counsel for the respondent submitted that in the authority of Saleem His Honour Allsop J found at [46] that:
“Thus, I accept the submissions of Mr Godwin that in exercising its powers of review under the Act, the Tribunal must decide as a jurisdictional fact (cf Eshutu and SHJB) whether there was non-compliance by the visa holder in the way described in the notice [under s. 107], being the manner particularised in the notice.”
It was submitted that his Honour’s approach required the Tribunal to address the manner in which the non compliance was particularised in the s.107 Notice and that is what the Tribunal did in this case. The s.107 Notice stated that :
“Information held by the Department also indicates that you were not in a genuine and continuing marital relationship with Stephen Burton when you were granted the sub-class 100 visa.” (CB p.102.9)
Counsel for the respondent submitted that in its reasons the Tribunal concluded that there “was never a genuine relationship” (CB p.214, [40]) and this was a wider question than that set out in the Notice but it necessarily answered the question that the Notice raised. It was submitted that this was in contrast to the facts in Saleem where the Tribunal addressed a narrower or different question to that set out in the s.107 Notice (see Saleem at [59]).
In respect of ground 10, Counsel for the respondent submitted that the quote extracted in paragraph 41 above illustrated the relevant non compliance was properly and clearly particularised in the Notice under s.108.

Reasons

At the outset of the hearing the applicant sought the production of documents which were the subject of certificate under s.375A. Counsel for the applicant submitted that the s.375A certificate was irregular and invalid and therefore did not afford the protection that it is purported to afford. It was conceded that s.375A(1 )(b) had been complied with but argued that a part of s.375A(1)(a) had not. Section 375A is headed “Certain information only to be disclosed to Tribunal” and s.375A(1) states:
(1)This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
Counsel for the applicant submitted that s.375A(1)(a) consists of several elements that must satisfied before the subsection is valid:
i)there has to be certification,
ii)the certificate must be in writing,
iii)the certificate must state that the disclosure is otherwise than to the Tribunal,
iv)the disclosure must be of any matter contained in the document, or of the information, and
v)the matter contained in the document or information would be contrary to public interest for any reasons specified in the certificate (other than a reason set out in paragraph 375(a) or (b)).
Counsel conceded that elements (i), (ii), (iii) and (v) were satisfied but disputed that element (iv) was satisfied. It was argued that the certificate did not incorporate, on its face, all of any matter contained in the document or of the information and that therefore invalidates the certificate and creates irregularity.
Counsel for the applicant took the Court to the decision of Davis per Dowsett J at [19]-[21] which is authority that the ministerial certificate overrides the obligations to provide the applicant with information pursuant to ss.362 and 359A. Counsel submitted that his Honour’s findings in [21] ought not to be applied in the circumstances of this case. In support of her argument Counsel relied on the rules of statutory interpretation, as set out in Sargood Brothers v Commonwealth (1910) 11 CLR 258 at 279 where O’Connor J said:
“It is a well recognized rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction. On the other hand, it must never be forgotten that rules of interpretation are formulated for the purpose of aiding the Court in ascertaining the intention of the legislature from the language it has used.”

The applicant also relied on the authority of Kioa v West to support her argument that the rules of procedural fairness require that adverse material be put to an applicant.
Counsel for the applicant admitted that the applicant’s entire case would stand or fall on the disclosure of the information the subject of the s.375A certificate and examination of it. At the conclusion of her preliminary submissions in respect of s.375A Counsel sought leave to amend the application by inserting a request for relevant orders quashing the certificate. Such leave was granted with no objection from the respondent’s Counsel.
Counsel for the respondent submitted that access to the information the subject of the s.375A certificate was not necessary. Counsel further submitted that s.375A of the Act overrides the obligations in ss.395A and 362A to provide the applicant with certain information and argued that there was no reason for the applicant or the applicant’s Counsel to have access to the information the subject of the s.375A certificate. The respondent Counsel submitted that, firstly, the applicant had not disputed that the information the subject of the certificate was the same information the applicant wanted disclosed. Secondly, the applicant had, in effect, conceded that if s.375A was invoked it did not override the Tribunal’s obligation to disclose certain information pursuant to s.359A and thirdly the applicant had not pointed to any reason why disclosure of the information was required.
Counsel for the applicant responded to the third point by stating that had the applicant been given access to those documents, she would have run her case before the Tribunal in quite a different way and may have persuaded the Tribunal to make a favourable decision. Counsel for the respondent accepted that had there been no s.375A certificate and therefore no effective obligation on the Tribunal to keep the material disclosed then the applicant may have run her case differently. However, it was argued that a subpoena in this Court cannot be used to access material that was sought to be presented before the Tribunal because it was not relevant to determining a jurisdictional error. Counsel for the respondent stated that no objection was made to the production to the Court, but objected to inspection by the applicant.
It was proposed that the Court proceed with the hearing of the substantive application and rule on the validity of the s.375A certificate at the time of judgment. I was agreeable to this proposal and Counsel therefore continued with their submissions on the substantive application. Before I could proceed with my reasons on the substantive application it was necessary to make a ruling on the s.375A certificate.
Counsel for the applicant attempted to persuade the Court that the decision of Dowsett J in Davis should not be applied to the present case and submitted the decision was, in effect, wrong. I cannot accede to the applicant’s request as it is my opinion that the decision of Dowsett J is undoubtedly good law that applies in the circumstances of this case. The relevant paragraphs of the decision are stated at [19]-[21] as follows:
“Pursuant to s 376 the Minister may certify that disclosure will be contrary to the public interest for a reason (other than a reason set out in s 375) which ‘could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed ...’. Such material would presumably also fall within par (b) of the definition of "non-disclosable information" and therefore be exempted by par 359A(4)(c) from the operation of s 359A. In the case of such a certificate the Tribunal may disclose the relevant material to the applicant or to other persons giving evidence.
Section 375A authorizes the Minister to certify that material should not be disclosed, other than to the Tribunal, upon the ground that such disclosure would be contrary to the public interest for any reason other than one of the reasons set out in s 375. In the event of such a certificate being issued, the Tribunal is obliged to do everything necessary to ensure that neither the documents containing the information, nor the information is disclosed to any person other than a member of the Tribunal constituted for the purposes of the review in question. The Tribunal has no discretion in the matter. Such material may, in some cases, also fall within par (b) or (c) of the definition of "non-disclosable information" and therefore be exempted by par 359A(4)(d) from the operation of s 359A, depending upon the Minister’s reason for issuing the certificate. However the Minister may conceivably act upon a basis which does not fall within those paragraphs. In that case, par 359A(4)(c) would not exempt the material from the operation of s 359A.
It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 357A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A.”
His Honour acknowledged the inconsistency on the face of s.375A and described it as “curious” that information the subject of the s.375A certificate is not expressly excluded from the operation of s.359A. However, it is obvious from his Honour’s reasoning that the obligation imposed by s.375A is “so specific” that it must be interpreted strictly and the requirements of ss.362A and 395A must therefore give way to it.
Counsel for the applicant did not refer to any authority in support of her submission that Davis should not be applied and I do not hesitate in finding that Dowsett J’s reasoning, being the reasoning of a superior Court, should be applied to the circumstances of the present case.

I therefore accepted the respondent’s submissions that s.375A overrides the obligations in ss.359A and 362A to provide the applicant with certain information.
This view is supported by Allsop J in Aguirre v Minister for Immigration & Multicultural & Indigenous Affairs (“Aguirre”). His Honour stated at [7]:
“Under subs.375(1), if the Minister has certified in writing that the disclosure of information otherwise than to the Tribunal would be contrary to the public interest for any reason specified in the certificate and includes a statement that the document must only be disclosed to the Tribunal, then under subs375A(2) the Migration Tribunal was forbidden by statute from disclosing to the applicant the documents in question. Such a certificate was given.”
The balance of Aguirre went on to consider an application made under the Freedom of Information Act. I need not go into the details of this application except to note that his Honour’s findings on the operation of s.375A were not altered by his Honour’s ultimate decision.
Counsel for the applicant submitted that the s.375A certificate was invalid and irregular. The s.375A certificate stated:
“In accordance with S375A of the Migration Act 1958, I certify that the disclosure, otherwise than to the Migration Review Tribunal, of any matter o[r] information contained in folio 35 of Departmental file CLF2003/35811 and folios 3, 16 to 17, 30 to 41, 65 to 86, 95, 127 to 131, 133 to 136, 146, 151 and 158 of Departmental file CLF2001/30025, would be contrary to the public interest …”.
I rejected Counsel for the applicant’s submission as it was my view that the certificate had in fact incorporated on its face “all of any matter contained in the document, or of the information” pursuant to s.375A(1)(a) of the Act. The certificate clearly stated the departmental file number and the folio number for all matters or information the subject of the certificate enabling the effective identification of the precise documents covered by the certificate. To disclose further details such as the name of the party giving the information or

a description of the information would be to divulge knowledge about certain facts and was, in effect, disclosing information contrary to the intention of s.375A. In my opinion, the certificate was neither invalid nor irregular.
In respect of grounds 1, 2 and 5, in light of my conclusions on the question of the validity and effectiveness of the s.375A certificate, it was unnecessary to consider grounds 1, 2 and 5. Counsels’ arguments in respect of these grounds were however noted.
In relation to ground 1, which was an allegation that the Tribunal failed to comply with the requirements of s.359A of the Act, Counsel for the applicant referred to s.359A which is headed “Applicant must be given certain information” and specifically to s.359A(4)(c) where it stated:
(4)This section does not apply to information:
…
(c)that is non-disclosable information.
It was submitted that “non-disclosable” information as defined in s.5 and referred to at s.359A(4)(c) of the Act can be distinguished from information that is the subject of a s.375A certificate. It was submitted that s.359A, on its face, clearly does not incorporate s.375A and that this was in stark contrast to s.362A which specifically refers to s.375A and does not relate to “non-disclosable” information. Counsel for the applicant again submitted that the interpretation of the effect of s.375A on s.359A as exposed by Dowsett J in Davis should not be followed. It was submitted, in relation to ground 1, the notice the Tribunal provided to the applicant pursuant to s.359A ought to have included all of the particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review (s.359A(1)(a)). In support of her submission, Counsel for the applicant took the Court to the authority of Saleem at [43] where Allsop J referred to the requirements of a notice of incorrect application pursuant to s.107. His Honour stated:
“It can be readily accepted that the cancellation of a visa, especially one granting permanency of residence, is a serious matter. It is against that background that one comes to ss 107 to 109 of the Act. The provision of incorrect or false information and the use of "bogus" documents being the matters, broadly stated, that are covered by ss 101, 102, 103, 104, 105 and 107(2) are also potentially very serious matters. It is easy to understand why the Parliament required some precision and specificity in the notice: s 107(1)(a). Particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for. One does not give particulars of non-compliance with s 101 by saying (as was submitted by Mr Reilly) that s 101 has not been complied with. It is the specifics (the particulars) of that non-compliance that are required to be given.”
On the basis of Saleem, Counsel for the applicant submitted that the notice provided by the Tribunal pursuant to s.359A contained general information and was not properly particularised. Although it was conceded that the second dot point was particularised, it was submitted that the other dot points and in particular the first dot point were far too general and in that regard failed to comply with s.359A (CB pp 192-193).
Counsel for the applicant did not elaborate on grounds 2 and 5 as she conceded that they were dependent on the validity of the s.375A certificate.
In relation to grounds 1, 2 and 5 Counsel for the respondent referred the Court to s.357A which stated:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Counsel for the respondent relied upon the comments of Dowsett J in Davis at [21] although he noted, as his Honour had done, that it was odd that information the subject of a s.375A certificate was not expressly excluded from the operation of s.359A.
Counsel for the respondent submitted that the s.375A certificate quite clearly engaged s.375A as it purported to follow the words of s.375A very closely and covered both “matter” and “information”. Counsel also submitted that it would be pointless for s.375A to prevent disclosure of certain information to an applicant if under s.359A particulars were required to be given to the applicant in respect of the same information. It was submitted that Dowsett J in Davis had simply resolved a general provision, being s.395A, against the specific provision of s.375A. For these reasons, Counsel for the respondent submitted both the challenge to the validity of the certificate and the contention that the information the subject of the certificate be disclosed should be rejected. As indicated above, I accepted the respondent’s submissions in respect of the validity of the certificate and also accepted them in respect of grounds 1, 2 and 5.
In respect of ground 3, it was submitted the Tribunal failed to consider the prescribed circumstances provided by the applicant’s agent pursuant to s.109(c) that the applicant and her family contribute to the Australian economy and community and support by way of a work reference. The sole reference to such a contribution by the applicant was contained in a letter dated 6 June 2003 from the applicant’s migration agent as follows:
“Taking into consideration collectively the circumstances in which the non-compliance occurred (refer to her statutory declaration), the present circumstances of Mrs. Burton (she and her family members are all contributing to the Australian economy and to the community), … and any contribution made by Mrs. Burton to the community, the decision maker should have regard to the above mentioned prescribed circumstances in considering whether to cancel Mrs. Burton’s visa.” (CB p133)
A favourable work reference from the applicant’s employer was also provided (CB p137).
In its decision, the Tribunal had regard to the prescribed circumstances in reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) pursuant to s.109(c) of the Act. This required consideration of “any contribution made by the holder to the community.” In response to this circumstance, the Tribunal stated “There is no information before the Tribunal in this regard” (CB p216).
Counsel for the respondent submitted that the Tribunal had received only a bare assertion in relation to the applicant’s contribution to the Australian economy and community and the only material in support of that assertion was that she had a work reference. Further, Counsel for the respondent submitted, that an assertion by the applicant’s agent that the applicant contributes to the economy did not make it so and one needed to be careful as to how one reads Tribunal decisions on such issues. In support of this submission Counsel referred to the decision of Gummow J in Broussard at 478 where his Honour set out a statement of reasons from a decision maker (referred to as the s.13 statement) and then at 479 said:
“I bear in mind the caution that it is not for the Court to study administrative decisions too finely or precisely and that they are to be regarded carefully but sensibly and not over zealously in the pursuit of error…”
His Honour then continued:
“I would not treat the references in the paragraphs I have set out from the s.13 statement as indicating that the delegate was dissatisfied because in various respects there was "no evidence" in a technical sense. I treat the reference as being to a lack of probative material confirmatory of what the applicant had put. The difficulty is whether the delegate in referring to "claims" by the applicant is to be read as denying to those "claims" probative value.”
I accepted the respondent’s submissions that the Tribunal’s finding that “[t]here is no information before the Tribunal in this regard” was a finding that there was no information or evidence of sufficient probative value. In accordance with the authority in Broussard, the Tribunal was entitled to make such a finding in view of the scant information before it in support of the applicant’s contribution to the Australian economy and community.
Ground 4 was abandoned.
In respect of ground 6, Counsel for the applicant referred the Court to paragraph 39 of the Tribunal’s decision (CB p.214) where the Tribunal stated that the relevant standard of proof involved a ‘high degree of satisfaction’: Singh (Federal Court of Australia, Sackville J,

6 December 1994, unreported). The applicant questioned the relevance of civil litigation concepts such as the standard of proof in immigration cases and relied on the authority of Wu Shan Liang at 282-283.
The majority in Wu Shan Liang found that the discourse commonly used in civil litigation provides little assistance in the context of administrative decision making. I noted this finding and acknowledged that the term “standard of proof” was more frequently used in common law proceedings. However, a mere reference to this term could not be found to be an error of law or a jurisdictional error. In Singh His Honour Sackville J stated at [16]:
“Not only is the onus of establishing the facts on the Minister, but in applying that onus it is necessary to consider the serious consequences of falling within s20(2). As Wilcox J. said in Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs at 572-573, because of these consequences
‘a court should find that the person has contravened s.20 only where the evidence establishes that proposition to a high degree of satisfaction’.” (citations omitted)
I accepted the respondent’s submission that there was no authority directly overruling Singh and find that Singh remains binding on this Court. In any event, the Federal Court’s finding in respect of this term is favourable to the applicant as it is apparent that the onus of establishing facts and proving falsity lies on the Minister.
In respect of ground 7, the applicant claimed that the Tribunal failed to address an integer or aspect of the applicant’s claim by failing to address the statutory declarations of the three Burtons. I accepted the respondent’s submissions that the statutory declarations were in fact pieces of evidence relevant to the determination of the genuineness of the relationship between the applicant and the nominator.
In Applicant WAEE the Full Court said at [46]:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”
The Full Court continued at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”
The Tribunal identified the statutory declarations of the three Burtons at paragraph 23, where it listed the evidence and information provided by the applicant in response to the Notice of Intention to cancel the visa, and at paragraph 42 where it stated “The Tribunal has considered the review applicant’s response to the said Notice, as well as the other material on the files noted above” (CB pp.210, 214).” Based on the authority of Applicant WAEE this ground as advanced by the applicant cannot be sustained. The Tribunal clearly addressed the evidence provided by the applicant, which included the statutory declarations of the three Burtons, in its assessment of the genuineness of the relationship between the applicant and the nominator.

In respect of ground 8, being the applicant’s claim that the Tribunal failed to give due weight to the statutory declarations provided by the applicant in support of her application, this ground must fail for the reasons given in paragraph 81 above.
The applicant claimed that the Tribunal made adverse findings against the applicant for not calling additional supporting witnesses without advising the applicant of the consequences of not calling those witnesses. However there was no reference in the Tribunal’s decision to any adverse finding or comment made in respect of the applicant’s failure to call additional supporting witnesses to the Tribunal hearing. This ground therefore cannot be sustained.
By letter of 26 November 2003 the Tribunal invited the applicant to appear before it pursuant to s.360 of the Act. The letter stated “You may also request that the Tribunal obtain oral or written evidence from other persons” (CB p.200). The claim that the Tribunal failed to afford the applicant an opportunity of calling additional supporting witnesses must fail.
Insofar as it was contended that the applicant was denied procedural fairness because the Tribunal was under a duty to enquire, no authority was cited to the Court in support of that proposition. In my opinion, there was no general duty on the Tribunal to make its own enquiries, although it was clearly empowered to do so (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB at [42]-[43] as to the absence of a general duty on the Tribunal to enquire). The Tribunal is an inquisitorial body but in the ordinary course it is entitled to rely upon the material that is put before it. It is for the applicant to persuade the reviewing decision maker that all of the statutory elements are made out: Minister for Immigration & Ethnic Affairs v Guo at 596. In my view the applicant had an opportunity to make out her case. She was invited to and did attend the Tribunal hearing and she had the assistance of a migration agent at that time.
In respect of ground 9, the applicant claimed that the Tribunal had not sufficiently addressed the issue required of it by s.108(b) in that it failed to make any specific findings in relation to the particular set out in the s.107 Notice. Both Counsel referred to the authority of Saleem in their submissions. In Saleem his Honour Allsop J set out the relevant statutory scheme and his Honour’s construction of the relevant provisions was not disputed in the present case. In his reasoning, his Honour stated at [43]:
“… particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for.”
His Honour rejects a submission that such particulars may merely be a reference to the section number which is alleged not to have been complied with, saying “it is the specifics (the particulars) of that non-compliance that are required to be given.” His Honour then reasoned at [45]-[46]:
“As a matter of ordinary English usage the words "in the way described in the notice" is apt to pick up what has been and was required to be particularised under s 107(1)(a).
Thus, I accept the submissions of Mr Godwin that in exercising its powers of review under the Act, the Tribunal must decide as the jurisdictional fact (cf Eshutu and SHJB) whether there was non-compliance by the visa holder in the way described in the notice, being the manner particularised in the notice.”
At [49] his Honour stated it is necessary to ascertain what findings were made in order to see whether the Tribunal answered the question which was properly before it:
“…that is whether or not the various provisions of information to which I have referred were inaccurate at the time that they were made.”
In the decision of SZEEM v Immigration & Multicultural & Indigenous Affairs (“SZEEM”) his Honour Smith FM followed the reasoning of Allsop J in Saleem and stated at [32]:
“… the Tribunal will not validly exercise its jurisdiction in a review of a s.109 cancellation decision unless it directs its findings at the particulars of non-compliance which were given in the initiating notice.”
His Honour continued at [37]:
“The scheme of decision-making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which a person may be deprived of permanent rights of residence and citizenship, explains the legislature's concerns: (i) that proper notice must be given; (ii) that the notice must contain "particulars"; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.”
In the present case, the Tribunal sent to the applicant the s.107 Notice dated 14 January 2003. The notice commenced with the following sentence:
“It has come to the Department’s attention that you may not have complied with Sections 101, 102, 104 and 105 of the Migration Act.” (CB p.101)
These sections, the alleged non compliance and then the evidence which the Department had received to substantiate the alleged non compliance, were set out and the notice stated:
“Information held by the Department also indicates that you were not in a genuine and continuing marital relationship with Stephen Burton when you were granted the sub-class 100 visa.”
(CB p.102)
The notice also stated:
“Based on the information before me, I am of the opinion that you may have provided incorrect information on your application and other documents provided as part of your application, lodged with the Department on 7 July 1997. In particular, you may have failed to provide information to the department about the true nature of your relationship with Stephen Burton. Hence this leads me to believe that you may not have complied with Sections 101, 102, 104 and 105 of the Migration Act.” (CB p.103)
In accordance with Allsop J’s reasoning in Saleem, it is necessary for me to determine whether the Tribunal addressed only the particulars of non compliance put to the applicant in the s.107 Notice pursuant to s.108(b). The applicant submitted that the Tribunal failed to make any specific findings in relation to the particular set out in the s.107 Notice. The respondent submitted to the contrary that the Tribunal had addressed the particular set out in the Notice. The respondent contended that the facts in the present case were to be distinguished from the facts in Saleem.
It is my opinion that the s.107 Notice before this Court contained a broad particular, therefore asking the Tribunal a broad question. The particular was general to the extent that it referred to the entire relationship between the applicant and the nominator and it therefore required the Tribunal to come to a finding in relation to the entire relationship as opposed to a specific portion of the relationship.
The present case can be distinguished from the facts in Saleem. In that case, His Honour Allsop J stated that the Tribunal only felt able to make certain limited findings. His Honour set out these findings and then continued at [59]:
“The difficulty with these findings is that they do not direct themselves to the occasions referred to in the notice; except that it can be said that to the extent that findings were only made in relation to 2001 and 2002 there is no finding about any particular occasion in 2000.”
His Honour came to the conclusion that the Tribunal failed to direct itself to answering the appropriate question called for by s.108(b).
In determining whether the Tribunal answered the question properly before it in the present case, it was necessary to refer to the Tribunal’s findings. In its findings and reasons the Tribunal stated:
“… the Tribunal is satisfied, to a high level, that there was never a genuine relationship between the nominator and the review applicant.” (CB p.214 [40])
In considering the prescribed circumstances in reg.2.41 of the Regulations the Tribunal also stated:
“The Tribunal is satisfied that the nominator and the review applicant were never in a spousal relationship.” (CB p.215 [45])
The Tribunal then continued:
“The Tribunal is satisfied that the effect of the lodgement of the untruthful spouse visa application was that the review applicant and two of her three sons were granted visas.” (CB p.215 [47])
Unlike the Tribunal’s findings in Saleem, which were found not to have directed themselves to the entire period referred to in the notice, the Tribunal’s findings in the present case were not restricted to a specific portion of the relationship but were directed to the relationship in its entirety as prescribed by the particular and pursuant to s.108(b). In this respect, I accepted the respondent’s submissions that the present case can be distinguished on its facts from Saleem.
Also in relation to the s.107 Notice, Counsel for the applicant submitted that the Tribunal ought to have made findings so as to identify the incorrect information on the application and the information alleged not to have been provided concerning the true nature of the relationship between the applicant and the nominator. As discussed above, both Saleem and SZEEM support the provision of particulars in the s.107 Notice.
On its face the s.107 Notice fails to provide particulars in the way required by the authorities referred to above. However, given the confidential nature of the information before the Tribunal it is my view that the omission by the Tribunal of any particulars in the s.107 Notice was deliberate and intentional. The absence of any particularisation was completely necessary in the circumstances in order to maintain the confidentiality of the information supplied to the delegate under the confidentiality regime. This agenda was not stated in the s.107 Notice but was confirmed by the s.375A certificate. Any particulars provided in the s.107 Notice would have undoubtedly disclosed information that was confidential in nature and later the subject of the s.375A certificate.
Had there been no s.375A certificate, the s.107 Notice would have needed further particularisation. However, it is my opinion that the s.107 Notice, as it stands cannot be any more specific than it currently is without breaching the confidentiality regime of the department. Like grounds 1, 2, and 5, this ground hinges on the s.375A certificate and in light of my findings on the question of its validity and effectiveness as set out above, this ground must fail.
In respect of ground 10, based on my findings in relation to ground 9, this ground cannot be sustained.

Conclusion

For the reasons set out above, I do not believe that the grounds pleaded by the applicant that the Tribunal has committed any reviewable error can be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Lyndall Yee

Date: 9 June 2005