Chan v Minister for Immigration - [2006] FMCA 1841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1841

MIGRATION – Migration Review Tribunal finding that visa applicant and applicant not in spousal relationship – alleged jurisdictional error – application successful in part – certiorari and mandamus granted.

Migration Act1958, ss. 359A, 359A(1)(a),(b), 359A(3)(b), 424A, 424A(1)(b), 459(1)(a), 476

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
VAF v Minister for Immigration & Multicultural Affairs and Indigenous Affairs (2004) 2006 ALR 471
Minister for Immigration & Multicultural Affairs v SZGMF (2006) FCA FC 138

Applicant:

THAY CHAN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1697 of 2006

Judgment of:

Burchardt FM

Hearing date:

27 October 2006

Date of Last Submission:

27 October 2006

Delivered at:

Melbourne (via video link to Sydney)

Delivered on:

18 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

D’Ambra Murphy Lawyers

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Phillips Fox Lawyers

ORDERS

A writ of certiorari removing the decision into this Court to be quashed.
A writ of mandamus, directing the Tribunal to reconsider and re-determine the Applicant’s application for a protection visa according to law.
The First Respondent shall pay the Applicant’s costs fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1697 of 2006

THAY CHAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant filed in this Court on 15 June 2006 an application for an Order that the Respondents’ show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act1958 (“the Act”) in respect of the decision of the Migration Review Tribunal (“the Tribunal”) given on 21 April 2006.
The decision of the Tribunal affirmed a decision of the First Respondent that the Applicant was not entitled to a partner (provisional) (class UF) visa. By an amended application, filed on

18 October 2006, the Applicant sought prerogative relief in the form of certiorari, mandamus and prohibition, effectively seeking to quash the decision of the Tribunal and have the matter re-tried according to law.
The amended application contains two grounds, but the first ground has five particulars which were all directed to an alleged failure on the part of the Tribunal to comply with the "compulsory requirements of s.359A of the Act." The second ground asserted in the amended application was that the Tribunal "failed to conduct a review according to law, and that it failed to consider all information personal to the Applicant's spouse (who was the visa Applicant) that was available to the delegate.”
The particulars given of this failure were asserted as being "failure to obtain and consider a full and accurate record of the Applicant's spouse's interview with a Migration Officer in Phonm Phenh."
The procedural history of this matter, as opposed to the underlying facts upon which the various applications have been based, can be recited relatively shortly.
As is plain from the papers and, indeed, summarised in the First Respondent's outline of submissions, the Applicant applied for partner (provisional) (Class UF) visas for Tong Seng, (“the visa Applicant”) and his children Quong Minh Seng, and Quong Iy Seng, on

2 November 2004 (the application was signed on 1 November 2004 but apparently was filed on 4 November 2004 – CB 16).
On 25 March 2005, a delegate of the First Respondent refused to grant the visas.
On 16 June 2005, the Applicant filed her application for review.
On 2 March 2006, the Applicant appeared before the Tribunal, which received oral evidence from the visa Applicant by telephone.
On 13 March 2006, the Tribunal sent a letter to the Applicant’s authorised recipient inviting the Applicant to comment on certain information specified in the letter.
The Tribunal subsequently found in its reasons handed down on

21 April 2006 that:
(a)it was not satisfied that either at the time of application or the time of decision, that parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship between them was genuine and continuing;
(b)that it was not satisfied, either at the time of application or at the time of decision, that the parties lived together or did not live separately and apart on a permanent basis;
(c)that the Applicant and visa Applicant were not in a marriage relationship and were not spouses;
(d)that as a result of the above matters the required conditions were not met and thus essential criteria for the visa were not met by the visa Applicant and the children.
It should be noted that this is an application for judicial review springing from alleged jurisdictional error. It is not a merits review. Nonetheless, because of the matters asserted in ground 2 of the Applicant's amended application, it is in these particular circumstances appropriate to set out some of the factual matters asserted from time to time by the Applicant, the visa Applicant, the delegate of the First Respondent and the Tribunal's responses to those assertions.
In his originating application, dated 1 November 2004, the visa Applicant asserted under Part H - Additional Information (Supplementary CB 29) "My wife left me in 1996 and she has disappeared. Don't know where she lives or die."
It should be noted that that paragraph was, plainly, not written by the visa Applicant as it is quite clear that he does not read or speak English. Nonetheless, the visa Applicant signed the form, including that assertion.
In a statutory declaration declared on 27 December 2004 submitted in response to a request for further information from the Australian Embassy Phonm Phenh Migration Section (Supplementary CB 101), the Applicant deposed that:
“Therefore, on 21 October 2003, I, CHAN THAY, went to visit Cambodia and spent only two months in Cambodia it was best chances for me to receive his honesty and love of me from SENG TONG and we had built many memories together back then he made appointment with me to visit Barsit Mountain by then he proposed to marry me after consideration I have no objection too just have to wait for the right time we will get marriage.”
She also deposed in that statutory declaration, although the dates were not stated that:
“We became known was by the introduction of Mr OR UM and he is my far distant relative of mine and he is friend of my husband since (Pol Pot) regime. He has told about his history after having listen to it did I made we to moved and believing and I also realized that he was separated from his un-marry wife had left him with two sons this wasn't different from me that had occurred we have had the same hurting.”
This reference to a prior relationship on the part of the Applicant was disclosed in the original application, filed in November 2004. In that application (Supplementary CB 22) the visa Applicant declared that the Applicant had had a previous partner, Lor Vannda, with whom he had had a relationship between February 1999 and July 2000 and by whom the Applicant had a child.
The visa Applicant's application, which of course also covered his children, Quong Ming Seng and Quong Iy Seng, born respectively on 21 June 1993 and 29 June 1995, was the subject of decision by a delegate of the First Respondent in Cambodia on 24 March 2005. It will be necessary to return to the terms of the interview that took place between the delegate and visa Applicant in due course.
The delegate's decision, in part read (CB 13):
“You claimed that you first made contact with your sponsor in April 2003. You stated that after 5 - 6 phone calls your sponsor travelled to Cambodia and you met in person for the first time on 2 December 2003 at Barsit Mountain.
You stated that you proposed to your sponsor when you first met her and at some stage following your sponsor's return to Australia, she accepted your proposal. Your sponsor travelled to Cambodia once more on 14 October 2004 and you and she were married in accordance to Cambodian custom on26 October 2004 at the Hang Neak Restaurant in the presence of approximately 150 guests. You and your sponsor have claimed that after your wedding you cohabited as a married couple until your sponsor returned to Australia on 17 November 2004.”
In fact, the account given in the delegate's decision is not based upon what the Applicant put in his original application (at Supplementary CB 129). In the attestation made there the visa Applicant asserted, after indicating there had been some prior communication:
“So on 21 October 2003 CHAN THAY came to visit Cambodia and spent over two months staying in Cambodia it's the best chance for me to show her my honesty and love of CHAN THAY we built so much memories together of many places we went to BARSIT mountain together I’ve have asked her get marriage she isn't refused, just wait for the right time we will marriage.”
The version of events given in the delegate’s decision is quite clearly taken from the record of interview that took place on 22 February 2005 in Phonm Phenh between the delegate and the visa Applicant. In that interview, the full transcript (as annexed to the affidavit of Kerry Daniel Murphy, sworn on 18 October 2006), indicates relevantly that the visa Applicant's first contact with the Applicant was by telephone in April 2003, and the first meeting between the parties - between the Applicant and the visa Applicant - took place on 10 December 2003 at "Mount Psat" (a reference, as I would understand it, to Barsit Mountain).”
The delegate made a number of unfavourable findings as to the visa Applicant's credibility. They are set out at CB 14 to 16.
In summary, the delegate found that the visa Applicant's assertions as to his relationship were not believable. The delegate made a number of findings including the following:
(a)it was unlikely that the visa Applicant had not formally married his first partner because at the time the relationship was alleged to have commenced de facto relationships were unheard of in Cambodian culture;
(b)the relationship asserted between the visa Applicant and the Applicant had gone from a first phone call in April 2003, following five to six further phone conversations (of which there is no record in the record of interview, the source of which I have not been able to find) before a first meeting in December 2003;
(c)on the occasion of that first meeting the visa Applicant had asserted that he had proposed a marriage - a proposition that the delegate found incredible;
(d)the fact that the visa Applicant was unable to remember when the Applicant had accepted the proposal of marriage was surprising;
(e)the relationship was thrown into doubt given the prior unsuccessful relationships that each of the parties had been in and the apparent rapidity of the development of the marriage, and the fact that the restaurant at which the marriage took place was not a place of strong association of the bride was also surprising.
There were a number of findings made but these are the ones that seem to be most relevant in the present circumstances.
Following the rejection by the delegate of the visa Applicant's application on 24 March 2005, the Applicant, as she was entitled to do, filed an application with the Tribunal on 16 June 2005 seeking review of the delegate's decision. (CB 2).
On 31 January 2006, the Tribunal invited the provision of further information pursuant to s.359A of the Act (CB 26).
The Applicant subsequently filed a statutory declaration declared on

23 February 2006.
That statutory declaration confirms that the Applicant first met the visa Applicant over the telephone (CB 33). It goes on to assert that the Applicant went to Cambodia in October 2003 for her brother's wedding and first met the visa Applicant on 2 December 2003. It was further attested that during the visit to Cambodia therein described in 2003, that the visa Applicant asked the Applicant get married but "I wanted to think about it." It goes on to assert:
“During one of our conversations on the phone, I agreed to marry him. I also said I would travel back to Cambodia to marry him.”
Further material was filed by the Applicant and the visa Applicant. In a further statutory declaration declared on 7 March 2006, the Applicant relevantly asserted (CB 57):
“I confirm that I met my husband at the airport in Phon Phenh when I arrived in October 2003.”
Additionally to that statutory declaration there was also a forwarded report from Nola Randall-Monk, dated 10 March 2005, (CB 59 to 66) which purported to give expert evidence in relation to Cambodian marriage practices, the general purport of which was designed to counter reservations of the delegate in respect of the nature of the Applicant and visa Applicant's wedding.
On 13 March 2006, the Tribunal wrote to the Applicant's representative (CB 69 to 71). Given the nature of the matters specified in ground 1 of the amended application, which are to the effect that the Tribunal's letter inadequately discharged the Tribunal's obligation pursuant to s.359A of the Act, it is appropriate to take each matter of criticism identified in the particulars separately.

Ground 1 (a)

Failure to ensure as far as reasonably practical, in accordance with s.359A(1)(b) of the Migration A0ct, the Applicant understood why internet phone records provided to the Department of Immigration were relevant to the review.

What the s.359A letter said in this regard at CB 69 was:
“Internet phone records for the visa applicant, provided to the Department, show the review applicant's number was called on a few occasions on 18 November and 11 December 2004, and on 7, 20, and 21 February 2005.”
It should be noted that it was common cause that the Applicant and visa Applicant married on 26 October 2004, and that the Applicant returned to Australia on 17 November 2004.
The Tribunal's finding relevantly (it is a bullet point at CB 105) was that:
“25. Internet phone records for the visa applicant, provided to the Department, show the review applicant's number was called on 18 November and 11 December 2004, and on 7, 20, and 21 February 2005 (the date of the visa applicant's interview was 22 February 2005). Internet records for the visa applicant, provided to the Tribunal, show the review applicant's number was called on 16 and 27 May 2005, and 27 November 2005. These receipts show the visa applicant phoned the review applicant's number on very few occasions since November 2004, and all of the occasions were after the parties had married. The records do not show that the visa applicant has phoned the review applicant often, or that the visa applicant has phoned every week or fortnight as he indicted at the hearing. The records do no show any phone calls before the parties married.”
26. Phone cards were provided by the review applicant at the hearing. However, they do not show who used the cards and which numbers were phoned. No other phone records were provided which showed the review applicant phoned the visa applicant.”
The criticism made in written submissions by the Applicant (at paragraph 13(i)) is "I note that this information was only partially, and inadequately disclosed, for the purposes of s.359A Migration Act, in the Tribunal's letter and CB 69 ‑ 71."

Ground 1 (b)

Failure to disclose information to the effect that the number of photos submitted to the Department in support of the visa application was considered by the Tribunal to be part of the reason for affirming the decision under review, in accordance with s.359(1)(a) of the Migration Act.

The s.359A letter relatively said (CB 69):
“Photos provided to the Department show a wedding and celebration and studio wedding photos. Other photos showed the parties together: the photos appear to show the parties together on one day in 2003; and on two occasions in 2004. Most photos are posed.”
In response the solicitors for the Applicant (CB 78 to 82) in their letter of 7 April 2003, relevantly wrote to the Tribunal:
“You state that most of the photos appear ‘posed’. In my experience, wedding photos are inevitably posed. It is also common in my experience for family photos to be posed. Simply because a photo is posed, it does not mean it is not a genuine photo.”
The letter went on to detail other matters not immediately relevant.
The Tribunal's relevant finding was (CB 105):
“27. Photos provided to the Department show a wedding and celebration and studio wedding photos. Other photos showed the parties together: these photos appear to show the parties together on one day in 2003; and on two occasions in 2004. The photos show that the parties have met in Cambodia and are known to each other. However, the parties provided a very small number of photos.”
The criticism made of this aspect of the Tribunals decision asserted in the Applicant's written submissions (paragraph 13 (iii)) is "I note that the Tribunal did not raise the number of photos as a concern in the s.359A letter."

Ground 1 (c)

Failure to disclose particulars of information to the effect that the applicant and her spouse have provided inconsistent information at the Tribunal hearing as to when the marriage was discussed during telephone conversations between them as is required by s.359(1)(a) of the Migration Act.

This is a reference to a finding of the Tribunal made at CB 106 (paragraphs 31 to 32 of the Tribunal's decision). The criticism made in written submissions by the Applicant (paragraph 13 (vii)) is that "I note that such inconsistency as there was not disclosed as a reason for disbelieving the parties in s.359A letter at CB 69 to 71".

Ground 1 (d)

Failure to disclose particulars of information to the effect that statements given to the Department by the applicant's spouse and her sister were inconsistent with that provided to the Tribunal by the applicant's mother and sister, as is required by s.459(1)(a) of the Migration Act.

The inconsistencies noted by the Tribunal in this regard are set out at paragraph 13 (viii) of the Applicant's written submissions. The relevant extracts of the Tribunal's decision are at paragraphs 35 to 41 of the Tribunal's decision at CB 106 to 107.
The criticism advanced in written submissions by the Applicant is that "neither the nature nor the extent of the alleged inconsistencies between the information given to the Department and that given to the Tribunal by various people was disclosed as being a reason for disbelieving parties in the s.359A letter”.

Ground 1 (e)

Failure to disclose information, obtained from a typed record of the applicant's spouse's interview with a Migration Officer, that the spouse could not remember the date when the applicant accepted his proposal of marriage, as is required by s.359(1)(a) of the Migration Act.

This matter was not particularised in written submissions, but the Tribunal's relevant finding (paragraph 44, CB 108) was:
“Nor did the visa applicant remember when the review applicant accepted his proposal of marriage. It is reasonable to consider that the visa applicant's acceptance would have been a significant moment for the visa applicant, especially as he claimed he had not previously been married.”
The criticism made of the Tribunal in this regard in the Applicant's written submissions (paragraph 17 (e)) is that:
“The fact that Mr Seng could not remember when Ms Chan accepted his proposal of marriage at the Departmental interview was not disclosed to him in accordance with s.359A(1).”

Ground 2

The Tribunal failed to conduct a review according to law in that it failed to consider all information personal to the applicant's spouse (who was the visa applicant) that was available to the delegate.

In substance the complaint made here is that the Tribunal did not have the tape of the Departmental interview, nor did it seek to obtain the tape even after being put on notice by the Applicant's representative that errors have been found on other tapes and summaries of interviews.
The proposition put here (at paragraph 19 – Applicant’s written submissions) was that the review conducted by the Tribunal was flawed because of the failure to have a full version of the tape of the interview between the delegate and the visa Applicant in Cambodia. It was submitted that:
“If it had been before the Tribunal, and had the Tribunal listened to it, it may have noticed the intimidatory nature of the questions and the antagonistic way they had been asked. It may have also noticed that the written record of interview at CB 94 to 95 was incomplete. It may, in view at least the first two of these factors, have declined to place reliance on the answers that were given at that interview.”
It should be noted that a number of other criticisms were advanced by the Applicant in written submissions, but by and large these were not pressed in any significant way in counsel's oral submissions.
Although it will be necessary to return to each of the grounds of application, more particularly, what in effect are the sub-grounds for application advanced in the particulars to ground 1, it is appropriate at this point to deal in more general terms with the nature of the obligations created by s.359A of the Act. It is clear that the primary difference between the parties in this proceeding is concerned with that matter.
In my opinion any consideration of the terms and effects of s.359A of the Act must commence with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009. That case dealt with the relevantly identical provisions in respect of the Refugee Review Tribunal.
It should be noted that in that case the Tribunal had failed to give the Applicant written notice of the use of relevant adverse information and did not forward a written invitation to comment on the information to the Applicant. The primary issue before the Court, therefore, was whether the failure to give written notice of the use of the adverse material constituted a breach of s.424A of the Act.
The majority of the Court found that the Tribunal's failure to give the Applicant particulars of the adverse information it considered relevant to its decision and failure to invite the Applicant to comment on the information constituted a breach of s.424A of the Act.
Relevant observations made by the High Court in that case, in my respectful opinion, include the following; per McHugh J;
“[70] Because the language of s.424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section. Gray J remarked in VEAJ that:
It is clear from sub‑s.(2)[of S424A] that the Tribunal cannot discharge its obligation by giving to an applicant oral particulars of the information in the course of a hearing. The obligation of the Tribunal to give both the particulars and an indication of the relevance of the information by one of the means specified in s.441A, or by the prescribed means of giving documents to persons in detention, makes it clear that the particulars and the explanation of relevance must be reduced to writing. Even in the case of relatively simple, and perhaps uncontrovertible, items of information, the Tribunal is not given the option of raising them with an applicant in the course of a hearing and giving an oral explanation of its view as to their relevance. The Tribunal must given written particulars and a written explanation.
[71] His Honour's approach should be followed.”
McHugh J went on to say [at 77]:
“Parliament has made the provisions of s.424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision making process. Consequently, a decision made after a breach of s.424A is invalid.”
In his judgment at [208] Hayne J, whom together with McHugh and Kirby JJ, constituted a majority in SAAP stated:
“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance of s.424A renders the decision invalid. Whether those steps will be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
The next case to which counsel referred was SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”), a decision given by the Full Court of the Federal Court on 24 February 2006. SZEEU was a case primarily concerned with the extent of the obligations created by s.424A of the Act. Much of the debate concerned the submissions advanced by the Minister for Immigration and Multicultural and Indigenous Affairs that the Court ought not follow an earlier Full Court authority, namely Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”). In substance, and more particularly in judgment of Weinberg and Allsop JJ, the Court came to the view that not only should Al Shamry be followed but that it should in the light of SAAP, be strictly enforced.
What is slightly more difficult, at least for me, is to establish from SZEEU exactly what constitutes “information”. It seems clear to me that in the light of SZEEU that:
(a)The operation of s.424A(3)(b) does not extend to material other than that directly given to the Tribunal itself, and specifically does not cover documentation given to other authorities such as delegates of the Minister.
(b)Section 424A is a separate statutory code providing an exhaustive statement of the requirements of procedural fairness in respect of Migration Review matters under the Act.
(c)Failure to comply with s.424A will lead in all save very limited circumstances to the issuing of writs and the exceptions are indicated in the judgment of Allsop J at [232].
(d)Section 424A may well be enlivened if the information was a part of the reason' for referring the delegate's decision (per Weinberg J at [158], and Allsop J at [225]).
There is not a great deal of discussion in SZEUU of the parameters of what is meant by “information”, because the Court was, of course, dealing with a number of factual situations that were capable of analysis on their own facts. Moore J quoted from the judgment of the Full Court in VAF v Minister for Immigration & Multicultural Affairs and Indigenous Affairs (2004) 2006 ALR 471 and extracted (at [18]) the following part of the judgment of Finn and Stone JJ from that case:
“there is now a considerable body of case law concerning the compass of the term “information” in its s.424(1) setting. The following propositions emerge from it:
(i) The purpose of s.424A is to provide in part a statutory procedural analogue to common law of procedural fairness; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at 104. However, the obligation imposed is not co-extensive with that which might be imposed by the common law to provide practical injustice; (authority omitted);
(ii)The word “information” in 424A(1) has the same meaning as in s.424: Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration & Multicultural Affairs (2000) FCA 1109 at [3]; irrespective of whether it is reliable or has A sound factual basis; Win at [19-22]; and
(iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration & Multicultural Affairs (2001) FCA 16 79 at [25]; approved (2002) FCA FC 120; nor does it extend to identified gaps, defects, or lack of detail or specificity in evidence or the conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].”
Having set out that extract at [18], Moore J went on to apply those observations in [19]. His Honour stated:
“The application of these principles in that matter is illuminating.”
He went on to say, at [23]:
“In dealing with the flight information in this way, I am following the approach of Finn and Stone JJ in VAF.”
It seems to me that Moore J adopted and applied the approach to the meaning of “information” adopted by Finn and Stone JJ in the passage earlier cited. At [155], Weinberg J relevantly observed that:
“It also leaves for consideration the question of whether, as a result of SAAP, any modification of the earlier pronouncements of this Court regarding the construction of s.424A(3)(b) is necessary. On this latter point, I agree with the observations of Allsop J regarding the impact of SAAP upon the reasoning of the Full Court in both Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 and VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471.”
His Honour returned to the question of information at [174] – [183], relevantly for these purposes his Honour stated at [175]:
“One of the reasons for the difficulty is that the legislature has chosen to use the term “information” when searching for a global expression designed to trigger the obligations imposed under s.424A. The term “information” is not defined in the Act, and if it were, it would not necessarily conduce to clarity. “Information” is inapt, as a word, to encompass at least some of the circumstances that would normally give rise to a duty, as a matter of natural justice, to invite comment from an applicant. Its use in s.424A can lead to unsatisfactory results.”
His Honour went on to discuss examples of such unsatisfactory results, and the difficulties arising therefrom, in paragraphs [176] to [183] of his Honour's judgment.
The passage in the judgment of Allsop J with which Weinberg J agreed, is at [200] – [216] of his Honour's judgment. In large part, however, that part of his Honour's reasoning was concerned with the extent to which it was necessary in the light of SAAP that “information” be a part of the reason for the Tribunal's decision or whether, as was held in Paul and VAF, the operation of s.424A was not enlivened if the relevant part of the reason had no stature or importance.
In relation to the question as to what constituted “information” Allsop J said at [205] to [206]:
“Information is that of which one is told or appraised; it is knowledge communicated concerning some particular fact, subject, or event: the complete Oxford Dictionary (2nd ed, 1991). In this context the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration & Multicultural Affairs (2000) FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or been gained by the Tribunal; Paul at [95].
Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95], and VAF at [24]. In this respect, it is relevant to record the root of the word “information”; that of which one has been told or appraised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information, does not mean they are relevant to the operation of s.424A. The thought processes of the Tribunal may reveal the relevance of information for s.424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s.424(1)(a)(b) or (c).”
His Honour went on to say at [222] to [223]:
“222. In my view, it is necessary to exercise care in applying what was said in VAF by Finn and Stone JJ at [24(iii)] that the word information does not:
extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.
223. Their Honours referred to WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [206]-[29] in support of that proposition. Reference to those paragraphs of WAGP makes clear what was being decided in that case. The argument that was rejected in WAGP was that “information” encompassed what was not mentioned to the Tribunal as a matter of evidence. This was a clear application of the distinction between information and mental processes. The argument sought to manufacture “information” out of the consideration and assessment by the Tribunal of the applicant’s oral evidence to the Tribunal. I do not see Finn and Stone JJ in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.”
It will be noted that the question of the extent of the obligation on the part of the Tribunal to, as it were, particularise in a s.424A letter has been further visited by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZGMF (2006) FCA FC 138, a decision of Branson, Finn and Bennett JJ given on 7 September 2006.
Although the decision in that case this obviously turned on particular facts, the following extract at [40] – [41] of the Full Court's decision gives guidance as to the appropriate way in which this Court should proceed:
“As mentioned above, the obligation of the Tribunal was to ensure, as far as is reasonably practicable”, that the respondent understood why the information set out in the s.424A letter was relevant to the review. No practical or other difficulties stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s.424A did not explicitly tell the respondent that the relevance of the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false.
The Tribunal's failure to state explicitly the relevance to the review of the information concerning the respondent's letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s.424A letter; the use that the Tribunal could make of the information as particularised was not self evident.”
The Court went on to find that in that instance the Tribunal had failed to ensure so far as reasonably practicable that the Respondent understood why the information received by the Tribunal concerning these letters of support from present and senior Awami League members was relevant to the Tribunal's review and had, therefore, failed to comply with the obligations created by s.424A(1)(b) (the Full Court at [44]).
I turn now to the specific matters advanced under the particulars to ground one of the amended application.

The Phone Records

I have already set out earlier in these reasons for decision the content of the s.359A letter, the response, and the Tribunal's finding in relation to this aspect of the matter.
In my opinion, in the context of the case for the Applicant and the visa Applicant, it would have been reasonably apparent to the Applicant and visa Applicant why the Tribunal would want comment upon the phone records. The Applicant, or in any event her legal advisors should have been alert to the fact that the Tribunal was going to consider the evidence cumulatively with a view to determining whether the parties were in a marriage relationship. The s.359A letter said so (CB 71). The observation that there were few phone calls between the time the Applicant left Cambodia in November 2004 and the time of the hearing, together with the itemising of the dates in February 2005, which were close to the visa Applicant's interview in Phonm Phenh, to my mind discharged the obligation of the Tribunal to give particulars of that information and its relevance.

Photographs

Once again I have already set out the relevant extracts of the materials in the s.359A letter and the Tribunal's findings.
The troubling aspect of this part of the Tribunal's considerations is that the information provided to the Applicant did not indicate the aspect of the photographs upon which the Tribunal plainly had placed, at least in part, reliance. Paragraph 27 of the Tribunal's reasons (CB 105) made a number of observations about the photographs provided to the Department. In large part the observations in that paragraph followed the material contained in the s.359A letter. Critically, though, the paragraph ends, "however, the parties provided only a very small number of photos".
On one view the s.359A letter might be said implicitly to alert the Applicant and visa Applicant to this aspect of the Tribunal's concerns.
In a sense it is obvious from the s.359A letter that there were not a lot of photographs because the number of occasions on which the photographs had been taken was itself small.
Nonetheless, in the ultimate I am persuaded that there is force in the Applicant's counsel's submission that it would have been a simple matter for the Tribunal to have concluded in the s.359A letter a reference to the fact that a Tribunal was troubled by the smallness of the number of photographs.
It is readily apparent that the Applicant and the visa Applicant would have sought to explain the small number of photographs, had this been expressly drawn to their attention. After all, the parties' own position was that they had not met at all often. There might be a number of reasons why there were only a relatively small number of photographs.
Reading the Tribunal's reasons as a whole, and bearing in mind the observations of Allsop J in SZEEU at [216], that one always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason, or the ultimate reason or conclusion of the lack of satisfaction of protection obligations, in my opinion the Tribunal's failure to alert the Applicant and visa Applicant that the number of photographs itself was a concern was information that could and should have been provided.
Accordingly, it is my conclusion that the Tribunal failed to discharge its obligations in the s.359A letter in this regard. For that reason relief must be accorded to the Applicant.

Failure to disclose information to the effect that the applicant and the visa applicant had provided inconsistent information at the tribunal hearing as to when the marriage was discussed during telephone conversations between them:

While it is true that there is no express reference to this matter in the s.359A letter, in my opinion the evidence given at the Tribunal hearing was, in my view, evidence which falls within the exemption contained in s.359A(3)(b). It is, of course, true that the Applicant in this instance was the spouse living in Australia, not the visa Applicant living in Cambodia.
Nonetheless, in my view, it would take the construction of s.395A too far if evidence given at a hearing by a witness called on the part of an Applicant, particularly, the purported spouse, could be said not to be given by the Applicant in the ordinary sense.

Failure to disclose particulars giving information to the effect of statements given to the department by the applicant spouse and her sister is inconsistent to that provided to the Tribunal by the applicant's mother and sister:

I have already set out the extract from the s.359A letter. In my opinion, in the circumstances of the case that extract has complied with the Tribunal's obligations pursuant to s.359A.

Failure to disclose information that the spouse could not remember the date when the applicant accepted his proposal of marriage:

This matter was not set out in the s.359A letter and accordingly, given that its origin was the interview with the delegate, the Tribunal did not fail to discharge its obligations under s.359A of the Act.

Ground 2:

Failure to consider all information personal to the applicant's spouse.

In my opinion, the Tribunal was under no obligation to go and get the record of interview in Cambodia. It is not the Tribunal's job to make the Applicant's case for her. While the Applicant's lawyers did advert to the possibility that there might be errors or difficulties with the record of interview that was provided, no formal application for adjournment to enable that to occur was made or rejected. Accordingly, in my view, this ground must fail.
Consistent with these reasons for judgment there will be orders as sought in the amended application, with one exception.
The Applicant has succeeded on one ground only out of a considerable number of grounds. In all the circumstances, the appropriate order is that the First Respondent pay the Applicant’s costs fixed in the sum of $2,000.00. The scale fee is $5,000.00 and the sum of $2,000.00 reflects fair balance of the success of the Applicant in achieving the Orders sought on the one hand and her failure in respect of most arguments advanced on her behalf on the other.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 18 December 2006