Dang v Minister for Immigration, Citizenship and Multicultural Affairs - [2025] FedCFamC2G 1101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dang v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1101

File number(s): ADG123/2019

Judgment of: JUDGE LUCEV

Date of judgment: 16 July 2025

Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – Partner visa – whether applicants given access to written material before the Tribunal – application of Australian Privacy Principle 6 – whether Tribunal misconstrued and misapplied provision concerning family violence exception to Partner visa criteria – where Tribunal did not wish to go behind the findings of the Magistrate – whether reasonable apprehension of bias – whether jurisdictional error – writs issued

Legislation:
Migration Act 1958 (Cth) Pt 5, ss 5F, 140, 352, 359, 359A 362A, 375A, 476,

Privacy Act 1988 (Cth) ss 6, 14, Sch 1

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) rr 11, 12

Migration Regulations 1994 (Cth) regs 1.15A, 1.23, Sch 2, cl 100.211, 100.221

Migration Amendment Regulations 2009 (No. 12) Select Legislative Instrument 2009 No. 273 (Cth) Explanatory Statement

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; (2001) 183 ALR 719

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087; (2001) 113 FCR 456

Chao vMinister for Immigration and Border Protection [2018] FCA 858

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; (2021) 95 ALJR 824; (2021) 393 ALR 389; (2021) 64 Fam LR 94

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352; (2006) 231 ALR 663; (2006) 70 IPR 468

Dang v Minister for Immigration and Border Protection [2016] FCCA 1299

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577

EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153

Hanna v Minister for Immigration and Border Protection [2016] FCA 282; (2016) 150 ALD 299

He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321; (2024) 98 ALJR 610; (2024) 418 ALR 152

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 22; (2011) 119 ALD 1

Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481

Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307

Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170; (2010) 114 ALD 211

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80;(2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536

'OJ' and Department of Home Affairs (Privacy) [2018] AICmr 35

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1

Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619

Sandhu v Minister for Immigration and Border Protection [2015] FCA 987; (2015) 236 FCR 63

Sandhu v Minister for Immigration and Border Protection [2016] HCATrans 90

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347

Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

L Cumming, Thunderclap. A memoir of art and life & sudden death (Chatto & Windus, 2023)

Division: Division 2 General Federal Law

Number of paragraphs: 63

Date of last submission/s: 7 June 2024

Date of hearing: 22 April 2024

Place: Perth

Counsel for the Applicants: Mr R Chia

Solicitor for the Applicants: Challenge Legal

Counsel for the First Respondent: Ms J Battiste

Solicitor for the Respondents: Australian Government Solicitor

Second Respondent: Submitting appearance, save as to costs
ORDERS

ADG123/2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
TRANG PHUONG DANG

First Applicant

THI MINH TRANG THAI

Second Applicant

THI THUY TRAN NGUYEN (and another named in the Schedule)

Third Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

16 JULY 2025

THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 7 March 2019.
2.A writ of mandamus issue requiring the matter to be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 27 November 2014, and to determine it according to law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION

The applicants, including the first applicant, Ms Trang Phuong Dang (“Ms Dang”) filed an application for judicial review (“Judicial Review Application”) on 5 April 2019 in the Adelaide Registry of the Court, and subsequently filed an amended application for judicial review on 25 August 2023 (“Amended Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”).
In these Reasons for Judgment all references to sections of an Act are reference to the Migration Act, and references to regulations, clauses and schedules are references to provisions of the Migration Regulations 1994 (Cth) (“Migration Regulations”), unless otherwise indicated.
The Amended Judicial Review Application seeks judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down on 7 March 2019. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration and Citizenship (“Minister”) of 27 November 2014 not to grant Ms Dang a Partner (Migrant) Class BC visa (“Permanent Partner Visa”).
The second, third and fourth applicants in the Amended Judicial Review Application are Ms Dang’s adult children, and their visa status in relation to the Amended Judicial Review Application is dependent upon the grant or refusal of Ms Dang’s Permanent Partner Visa application: Migration Act s 140(1); see also Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619; Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32. For convenience the applicants will hereafter generally only be referred to by reference to the first applicant, Ms Dang.
The matter was docketed to the presently presiding Judge in October 2022, and following a directions hearing on 23 November 2022, the matter was originally listed for hearing on 19 October 2023, but subsequently relisted to 22 April 2024. At the hearing on 22 April 2024 orders were made including the following order:
1.        In relation to the issue of:
(a)       the Australian Privacy Principle 6; and
(b)       the independent expert’s opinion,
the parties have leave to file further submissions, the First Respondent by 6 May 2024, and the Applicants by 20 May 2024.
Consent orders were made on 14 May 2024 extending the time for filing of further submissions by Ms Dang and the Minister, with those submissions ultimately being filed on 27 May 2024 and 7 June 2024 respectively.
MATERIALS BEFORE THE COURT
In addition to the Amended Judicial Review Application the materials before the Court include the following:
(a)the Court Book (“CB”) filed by the Minister’s solicitors on 21 June 2019, and marked as Exhibit 1 at hearing;
(b)the affidavit of Susanne Gloria Jacobs affirmed 21 August 2023 (“Jacobs’ Affidavit”), verifying transcripts of Ms Dang’s hearings before the Tribunal on 24 October 2018 and 8 January 2019;
(c)the affidavit of Michael Cai affirmed 24 August 2023 (“Cai Affidavit”), annexing documents produced by the Tribunal in response to a request made under s 362A;
(d)Ms Dang’s submissions filed on 25 August 2023 (“Ms Dang’s Submissions”);
(e)the Supplementary Court Book (“SCB”) filed by Ms Dang and accepted for filing on 29 August 2023 (“SCB”), and marked as Exhibit 2 at hearing;
(f)the Minister’s submissions filed on 22 September 2023 (“Minister’s Submissions”);
(g)the transcript of the hearing before the Court on 22 April 2024 (“Court Hearing Transcript”);
(h)the Minister’s further submissions (relating to privacy principles and an independent expert’s opinion) filed 27 May 2024 (“Minister’s Further Submissions”); and
(i)Ms Dang’s further submissions (relating to privacy principles and an independent expert’s opinion) filed 7 June 2024 (“Ms Dang’s Further Submissions”).
BACKGROUND
The background to the Amended Judicial Review Application is as follows:
(a)Ms Dang is a female citizen of Vietnam born on 1 January 1960;
(b)on 20 December 2011 Ms Dang simultaneously applied for a Partner (Provisional) (Class UF) (subclass 309) visa (“Provisional Partner Visa”) and a Permanent Partner Visa (collectively “Partner Visas”), sponsored by her Australian citizen husband, Ba Van Nguyen (“Sponsor”): CB 12-35. Ms Dang’s three children from a previous relationship also applied for the Partner Visas as members of her family unit;
(c)Ms Dang’s visa application states that she met the Sponsor in Vietnam in April 2009 and they began their spousal relationship on 7 October 2010: CB 24 and 36;
(d)Ms Dang was granted the Provisional Partner Visa on 5 July 2012 and arrived in Australia on 9 November 2012: CB 197; Cai Affidavit, Annexure MC-1 at p 770;
(e)on 28 December 2012 the Minister’s department (“Department”) received an undated letter from the Sponsor, advising that he had moved out of the marital home on 19 December 2012 and that he wished to withdraw his sponsorship of Ms Dang: CB 227;
(f)on 8 January 2013 the Department notified Ms Dang of the Sponsor’s withdrawal of sponsorship and advised her as to her options: CB 229
(g)in February 2013 Ms Dang emailed the Department claiming that she had suffered family violence and provided an interim intervention order (“Interim Intervention Order”) of the Magistrate’s Court of South Australia (“Magistrates Court”) dated 30 January 2013, requiring the Sponsor not to assault, threaten, harass or intimidate Ms Dang: CB 241, 245, 249 and 343;
(h)on 8 April 2013 Ms Dang presented evidence in relation to the making of a “non-judicially determined claim of family violence” for the purposes of reg 1.23: CB 249;
(i)on 8 November 2013 the Magistrate’s Court refused to make a permanent intervention order and revoked the Interim Intervention Order finding that Ms Dang had made false allegations against the Sponsor to enable her and her children to remain in Australia: CB 363-379 (“Magistrates Court Judgment”);
(j)on 14 August 2014 the Department referred Ms Dang’s family violence claim to an independent expert appointed under reg 1.23: CB 380, and on 9 October 2014 the independent expert provided the Department with an opinion that Ms Dang had not suffered family violence: CB 298-309 (“Independent Expert” and “Independent Expert’s Opinion” respectively);
(k)on 27 November 2014 the Delegate’s Decision was to refuse to grant Ms Dang a Permanent Partner Visa: CB 322-325;
(l)on 9 December 2014 Ms Dang applied to the Tribunal for merits review of the Delegate’s Decision: CB 387-397;
(m)on 18 November 2015 the Tribunal affirmed the Delegate’s Decision not to grant Ms Dang a Permanent Partner Visa: CB 528-536 (“2015 Tribunal Decision”). The 2015 Tribunal Decision concluded that Ms Dang and the Sponsor had not been in a genuine spousal relationship and therefore did not satisfy Sch 2, cl 100.221(4)(b), and the Tribunal did not find it necessary to make findings on Ms Dang’s family violence claim;
(n)Ms Dang applied unsuccessfully to this Court for judicial review of the 2015 Tribunal Decision: CB 547; see also Dang v Minister for Immigration and Border Protection [2016] FCCA 1299. On appeal to the Federal Court of Australia, the 2015 Tribunal Decision was set aside by consent and the matter was remitted to the Tribunal for reconsideration: CB 553. The Minister accepted that in making the 2015 Tribunal Decision the Tribunal had denied Ms Dang procedural fairness by failing to advise her of the existence of a notification under s 375A: CB 555;
(o)on 10 August 2018 and 23 August 2018 the Department revoked the certificates and notifications previously issued under s 375A: CB 239 and 386;
(p)on 16 August 2018 Ms Dang requested access to the material before the Tribunal under s 362A: CB 576 (“Section 362A Request”);
(q)on 24 August 2018 the Tribunal responded to the Section 362A Request: CB 585. As part of its decision, some documents were partially redacted and some were redacted in full: CB 585-586. The redactions related to personal information relating to persons other than the applicants. The Tribunal reasoned that the documents contained personal information about another person and it was not satisfied that disclosure was permitted under Australian Privacy Principle 6 (“APP 6”) as set out in Sch 1 to the Privacy Act 1988 (Cth) (“Privacy Act”). Documents produced by the Tribunal in response to the Section 362A Request appear at Annexure MC-1 to the Cai Affidavit;
(r)on 13 September 2018, and notwithstanding that it already had access to a copy of the Magistrates Court Judgment, the Tribunal requested, amongst other things, that Ms Dang provide a copy of the Magistrates Court Judgment to the Tribunal: CB 593. The Magistrates Court Judgment had been placed on the Department’s file and was the subject of a s 375A certificate dated 24 December 2014;
(s)on 24 October 2018 the reconstituted Tribunal conducted a hearing in relation to Ms Dang’s review: CB 596;
(t)on 1 November 2018 under s 359A the Tribunal invited Ms Dang to comment on and respond to the Magistrates Court Judgment and adverse information from the Sponsor and other persons: CB 685 (“Invitation to Comment”);
(u)on 15 November 2018 Ms Dang provided a response to the Invitation to Comment: CB 691 (“Invitation to Comment Response”);
(v)on 8 January 2019 the Tribunal conducted a further hearing: CB 701; and
(w)on 7 March 2019 the Tribunal Decision again affirmed the Delegate’s Decision not to grant Ms Dang a Permanent Partner Visa: CB 747 at [89]. The Tribunal noted:
(i)at CB 736 at [14] that the s 375A certificates, the existence of which had not been disclosed by the previously constituted Tribunal, had subsequently been revoked by the Department; and
(ii)at CB 737 at [20] that it had invited Ms Dang to comment on and respond to adverse information from the Magistrates Court Judgment and statutory declarations provided by the Sponsor and others.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)at CB 739 at [27] said that it “concurred” with the assessment in the Magistrate Court Judgment that Ms Dang “was an unimpressive witness, and her overt distress was an attempt to bolster her evidence”;
(b)set out and considered the factors in reg 1.15A at CB 740-746 at [34]-[83] and summarised its findings at CB 746 at [84]-[85] as follows:
84.Mrs Dang and Mr Nguyen did not merge their financial affairs in a way that supports them being in a spouse relationship. While I am satisfied Mr Nguyen lived with Mrs [D]ang for a little under a year in Vietnam and for a short period in Australia, I am not satisfied their living arrangements were at the time of the application consistent with them having a genuine and continuing relationship. They did not share housework. There is little independent evidence of the nature of the household and the social aspects of the relationship, with inconsistent evidence about the nature of the household. There is little independent evidence of them socialising in Vietnam, and any socialising had ceased by the time Mrs Dang arrived in Australia. I accept they represented themselves to others as a married couple. Mrs Dang and Mr Nguyen have been married to each other since 2010, however in this time Mr Nguyen stayed with Mrs Dang for approximately one year of that time. I do not accept they provided each other with companionship and emotional support or that Mrs Dang saw the relationship as long term.
85.Most significantly, I do not accept that Mrs Dang had a genuine commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.
(c)was not satisfied that Ms Dang was the spouse of the Sponsor for the purpose of s 5F: CB 747 at [86], and concluded that Ms Dang and the Sponsor had not been in a genuine spousal relationship and therefore did not satisfy cl 100.221 of Sch 2, and therefore the Tribunal did not go on to consider whether there had been family violence during the course of the relationship, as it did not arise: CB 747 at [87].
AMENDED JUDICIAL REVIEW APPLICATION
The Amended Judicial Review Application accepted for filing on 28 August 2023 has three grounds set out below at [11] (ground 1), [38] (ground 2), and [50] (ground 3):
CONSIDERATION
Ground 1
Ground 1 is as follows:
1.The second respondent (Tribunal) materially failed to comply with section 362A of the Migration Act 1958.
Particulars
Court Book at page 585
Ms Dang’s submissions
In relation to ground 1, and having referred to s 362A and the judgments in Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; (2001) 183 ALR 719 (“Carlos”) and Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (“Dhillon”), Ms Dang submitted as follows:
(a)Ms Dang requested access to written material before the Tribunal on 16 August 2018 and the Tribunal provided only partial access to the material before it on 24 August 2018. The documents produced by the Tribunal on 24 August 2018 are reproduced in full in the Cai Affidavit at Annexure MC-1. Like the Migration Review Tribunal (“MR Tribunal”) in Dhillon the Tribunal here proceeded on the erroneous basis that material containing personal information about another person was exempt from disclosure due to APP 6. And, though some of the documents redacted or withheld by the Tribunal had been the subject of the certificates and notifications under s 375A, both certificates under s 375A had been revoked prior to the Tribunal providing the Section 362A Response on 24 August 2018;
(b)some of the documents provided to Ms Dang in redacted form on 24 August 2018 have been included in the CB in unredacted form. They include adverse statements from named third parties which were disclosed to Ms Dang with addresses and other personal identifiers redacted: CB 346-361; Cai Affidavit at Annexure MC-1 at pp 599-614 (Department file CLF2014/143138 at folios 10-25). In her Invitation to Comment Response Ms Dang said that she was not familiar with the names of all but one of these witnesses and was therefore unable to specifically recall meeting them or the occasions they said they came to her home: CB 697 at [6]. In Ms Dang’s submission, as a matter of “reasonable conjecture”, it is possible that Ms Dang would have been able to identify and recall these witnesses, and therefore provide a meaningful response to the allegations contained in the statements if she knew the street or suburb, or had the benefit of other personal identifiers redacted by the Tribunal;
(c)a document which was not provided to Ms Dang on 24 August 2018 was the Sponsor’s movement details report (“Sponsor’s Movement Details Report”). Dated 2 July 2015 the Sponsor’s Movement Details Report records detail of the Sponsor’s arrivals in and departures from Australia, amongst other things. The Tribunal’s failure to disclose the Sponsor’s Movement Details Report was material because it contained adverse information that the Tribunal may have taken into account and supporting evidence to which the Tribunal may not have had regard. For instance, Ms Dang claimed she married the Sponsor on 7 October 2010 whereas the Sponsor’s Movement Details Report states the Sponsor flew out of Australia that day and the Tribunal proceeded on the basis of a marriage registration date of 24 May 2011: CB 746 at [78]. The Sponsor’s Movement Details Report also contradicts the Tribunal’s finding at CB 746 at [84], based on the dates the Sponsor was registered as living with Ms Dang in Vietnam CB 743 at [57]-[58], that Ms Dang and the Sponsor had only lived together in Vietnam for a year; and
(d)in further submissions in relation to APP 6 Ms Dang submitted as follows:
(i)in the Australian Privacy Principles guidelines (“APP Guidelines”), the Office of the Australian Information Commissioner (“OAIC”) explains “primary purpose” under APP 6 in the following terms:
B.101The purpose for which an APP entity collects personal information is known as the ‘primary purpose’ of collection. This is the specific function or activity for which the entity collects the personal information. If an APP entity uses or discloses the personal information for another purpose this is known as a ‘secondary purpose’ …
B.102Where an APP entity collects personal information directly from an individual, the context will help in identifying the primary purpose of collection. For example, the individual may provide the personal information for a particular purpose, such as buying a particular product or receiving a particular service. This is the primary purpose of collection, even if the entity has additional secondary purposes in mind.
B.103Where an APP entity receives unsolicited personal information or collects personal information about an individual from a third party, the context will again be relevant in identifying the primary purpose of collection. It will also be relevant to consider the function or activity which the personal information is reasonably necessary for, or to which it directly relates. …
(ii)and in relation to how the primary purpose is to be described, the OAIC says:
B.104How broadly a purpose can be described will depend on the circumstances and should be determined on a case-by-case basis. In cases of ambiguity, and with a view to protecting individual privacy, the primary purpose for collection, use or disclosure should be construed narrowly rather than expansively.
B.105The primary purpose may nevertheless be described in general terms, as long as the description is adequate to inform an individual of how the APP entity may use or disclose their personal information. A description – the information will be used ‘for the functions of the entity’ – would generally be considered too broad. Instead, the primary purpose of collection could be described as to:
·provide a particular banking service
·market particular goods or services , or types of goods or services, to the individual
·assess an applicant’s suitability for a job
·assess an applicant’s eligibility for a loan
·resolve a complaint
·provide further information about a particular service
·enable an agency to give someone a particular benefit or service.
(iii)an example of how these principles apply in the context of personal information collected by the Minister can be found in 'OJ' and Department of Home Affairs (Privacy) [2018] AICmr 35 at [31] where the Information Commissioner characterised information regarding the complainant’s immigration status as having been collected for the primary purpose of “administration of immigration laws” and found at [36] that the disclosure of that information to a television show was not consistent with that primary purpose and therefore for a secondary purpose;
(iv)in relation to the adverse witness statements, Ms Dang submitted at hearing that the redacted personal information had been provided to the Department for the primary purpose of assessing Ms Dang’s Partner Visas applications and that this was the same purpose for which disclosure was sought from the Tribunal. Disclosure of material was sought by Ms Dang under s 362A so that she could comment on and respond to adverse information as part of the process of assessing Ms Dang’s Partner Visa applications. It was also submitted, in the alternative, that even if the use of the personal information by the Tribunal was for another purpose, the relevant individuals would have implicitly consented to such use (APP6 at [6.1(a)]). The witnesses who had provided statements to the Department could only have expected that their information could be used in the appeal process. In Ms Dang’s submission this characterisation of the primary purpose is consistent with the APP Guidelines set out at [12(d)(i)] above;
(v)the Minister submits that the personal information in the adverse statements was collected for the purpose of “the delegate … assess[ing] the applicants’ applications for visas” and then provided to the Tribunal for the purposes of “it conducting a review of the delegate’s decision under Part 5 of the Act”. However such a characterisation is too narrow and asks the Court to focus on each person undertaking each step in fulfilling the function of assessing visa applications, rather than focusing on the function itself. If the Minister’s characterisation of “primary purpose” were to be adopted, it would mean that the Department is required under APP 5 to notify the relevant individual of everyone who would use the information at every step in the visa application process. Further, in relation to each person taking a step in the process, the Department would have to implement procedures to ensure the accuracy and relevance of the information under APP 10 and APP 13;
(vi)in relation to the Sponsor’s Movement Details Report, this again was information collected by the Tribunal for the purpose of assessing Ms Dang’s Partner Visas applications and it was for this same purpose that disclosure was sought by Ms Dang under s 362A. The information was sought so that Ms Dang could make comments or submissions for consideration by the Tribunal in assessing the Permanent Partner Visa application;
(vii)contrary to the Minister’s submissions the Tribunal had “collected” the information for the purposes of APP 6 because it collected the personal information “for inclusion in a record …”, namely the Tribunal file: Privacy Act, s 6(1) definitions of “collects” and “record”), and APP Guidelines at [B.29]; and
(viii)further even if, as the Minister submits, the adverse witness statements and the Sponsor’s Movement Details Report were sought for the purpose of “mak[ing] submissions to the Tribunal on the application for review”, this was a secondary purpose which was “reasonably expected” and “related to the primary purpose” for which they were collected: APP 6 at [6.2](a)(ii).
(e)it is not necessary for Ms Dang to adduce evidence as to what she would have said had the Tribunal provided full disclosure of the material before it: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 (“Nathanson”) at [39] per Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ. It is sufficient that Ms Dang can, as an “undemanding” matter of “reasonable conjecture”, say that she was denied the possibility of a favourable outcome. It is enough that Ms Dang was denied the opportunity to make submissions based on the evidence full access to which was not given: Nathanson at [11] per Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ.
Minister’s submissions

In relation to ground 1 the Minister submitted as follows:
(a)ground 1 concerns the Tribunal Decision under s 362A which refused access to certain documents, or parts of documents, because it contained personal information about another person, referring to APP 6;
(b)under s 362A(1) applicants are entitled to have access to any written material given or produced to the Tribunal for the purposes of the review, subject to s 362A(2) which provides that the section does not override any requirements of the Privacy Act and is not to be taken, for the purposes of the Privacy Act, to require or authorise the disclosure of information;
(c)Ms Dang asserts that the situation here is the same as appeared in Dhillon, further asserting that:
(i)at [11]-[12] per Allsop CJ, Murphy and Pagone JJ, the Full Court of the Federal Court held that APP 6 does not apply to a request under s 362A; and
(ii)like the MR Tribunal in Dhillon, the Tribunal here proceeded on the erroneous basis that material containing personal information about another person was exempt from disclosure due to APP 6;
(d)Ms Dang’s submissions misunderstand Dhillon. In Dhillon the MR Tribunal refused access to documents which contained personal information of people other than the applicant, and not personal information about the applicant. It did so purporting to rely on Information Privacy Principle 6 (“IPP” and “IPP 6” respectively), where IPP 6 was directed only to the personal information of the person seeking access to the documents: see the text of IPP 6 at Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ, as contained in s 14 of the Privacy Act (as at 18 March 2013). Ms Dang’s confusion may arise from the fact that the judgment in Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ also refers to the APPs, but the APPs did not replace the IPPs until 12 March 2014. The extract from the MR Tribunal decision in Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ, also plainly refers to the IPPs as set out in s 14 of the Privacy Act. In Dhillon at [11]-[12] per Allsop CJ, Murphy and Pagone JJ the Full Court of the Federal Court found that IPP 6 did not apply because it was simply not engaged in the circumstances of that case;
(e)since the decision in Dhillon and at the time of the Tribunal Decision, the IPPs have been replaced with the APPs. The content of APP 6 was not directed to the personal information of the person seeking access to the documents, it was directed to a situation where an applicant is seeking documents that contain the personal information of others: see Sch 1 – Australian Privacy Principles to the Privacy Act (compilation No. 78 dated 1 July 2018). Dhillon is plainly distinguishable;
(f)APP 6 was a relevant consideration to the Tribunal Decision under s 362A and the Tribunal did not proceed on an erroneous basis;
(g)in the alternative, in the event that an error with respect to s 362A is demonstrated, this Court will need to consider if it was a material, and therefore a jurisdictional, error;
(h)there is no need for an applicant to establish the nature of additional evidence or submissions where they were the matter of reasonable conjecture: Nathanson at [39] per Kiefel CJ, Keane and Gleeson JJ. However, where the information is only of marginal significance, it may be that it is not reasonable to conjecture that considering the information could have realistically made a difference to the decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”) at [72] per Bell, Gageler and Keane JJ;
(i)Ms Dang in this case relies on two sets of documents, the redaction of which is alleged to have caused material error;
(j)the first is the redaction of the addresses (and in one instance a mobile phone number) in statutory declarations obtained by the Sponsor, as part of his withdrawal of sponsorship: Cai Affidavit, Annexure MC-1, pp 599-614. The statutory declarations essentially contain statements about observations made by the declarants about Ms Dang and the Sponsor and their relationship in Australia that are adverse to Ms Dang;
(k)on 1 November 2018 Ms Dang was invited to respond to the content of these statutory declarations: CB 685. Ms Dang responded by way of submissions, in particular regarding the weight to be given to these statutory declarations: CB 692, and a statement from Ms Dang: CB 697 at [4]-[9]. At CB 697 at [6] Ms Dang stated that:
(i)only the name of one declarant was familiar;
(ii)she did not recall meeting any of the other people;
(iii)she believes she would recall them if they spent time with the family, and
(iv)it is possible they came to the house but only spent time with the Sponsor in the garage;
(l)Ms Dang’s response to the statutory declarations extended beyond this in her own statement and the related submission, addressing the veracity of the content of the statements and the weight to be given to them;
(m)Ms Dang submits that it is a matter of “reasonable conjecture” that she would have been able to identify and recall these witnesses and therefore provide a meaningful response to the allegations if she knew their street, suburb, or other personal identifiers redacted (presumably meaning the mobile number);
(n)this submission ought not be accepted. Ms Dang gave a meaningful response to the allegations and on multiple bases. Her position was further that, with one exception, she did not believe the declarants visited or spent time with her family. It is not a matter of “reasonable conjecture” that somehow knowing the addresses (or mobile number) of the declarants could have enabled her to identify or recall the witnesses and therefore provide a meaningful response. At best, it is unsupported speculation that she could have provided a further response to the allegations. The redacted information was of marginal, if any, significance;
(o)the second document Ms Dang relies on is the redacted Sponsor’s Movement Details Report: SCB at 9-11. Ms Dang contends that the Sponsor’s Movement Details Report contains both adverse information that may have been taken into account by the Tribunal, and supporting evidence it may not have had regard to. With respect to Ms Dang’s contention that the document may contain adverse information because it shows the Sponsor flew from Australia on 7 October 2010, whereas Ms Dang said that they were married on 7 October 2010:
(i)there is no evidence the Tribunal treated that as adverse information;
(ii)Ms Dang was already aware of this information and how it conflicted with her evidence regarding the date of her marriage because it was considered in the 2015 Tribunal Decision: CB 535 at [60]-[61]; and
(iii)there was other evidence supporting that the Sponsor left Australia and/or arrived in Vietnam on 7 October 2010. For example, both Ms Dang and the Sponsor had described elsewhere that the Sponsor arrived in or travelled to Vietnam on 7 October 2010 to prepare for marriage or for the wedding, and was further recorded on the Department files: Cai Affidavit, Annexure MC-1 at pp 111-113 and 176;
(p)with respect to the contention that the travel dates “contradicted” the Tribunal’s findings as to when Ms Dang and Sponsor had been living together in Vietnam, which was based on the periods the Sponsor had formally registered his residence with Vietnamese authorities at Ms Dang’s address, this contention cannot be made out where it was never contended that the Sponsor stayed with Ms Dang during the whole time he was in Vietnam or in the absence of recollection of the specific periods the Sponsor resided at Ms Dang’s home in Vietnam. Again, this document is of marginal significance.
(q)in relation to APP 6 the Minister submitted as follows:
(i)at hearing Ms Dang effectively abandoned ground 1 as previously cast, and instead submitted that the Tribunal erred in applying APP 6 as it did, to not provide or redact the personal information of persons who were not the applicants, in response to the Section 362A Request;
(ii)the Tribunal’s decision relating to the Section 362A Request excluded or partially excluded access to certain documents, or parts of documents: CB 585:
… from disclosure under Australian Privacy Principle 6 (APP 6) set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about another person and the tribunal is not satisfied that disclosure is permitted under APP 6. Edited versions of these folios have been released to you and the information relating to another person has been deleted
…
If you are dissatisfied with this decision and wish to discuss it further, please do not hesitate to contact me.
There is no formal right under the Migration Act (the Act) to review this decision however you can lodge a request for access to documents under the Freedom of Information Act or make a further request under s.362A of the Act.
(iii)Ms Dang submitted that the Tribunal erred in relying on APP 6 as it did, because it would be supplying the information to Ms Dang for the “primary purpose” for which it had been collected, which does not come within the prohibition in APP 6.1;
(iv)Ms Dang’s characterisation casts the primary purpose far too broadly;
(v)the statutory declarations were material collected by the Department and contained in the Department’s file: Cai Affidavit, Annexure MC-1 at pp 599-614, the purpose of the collection being for the Delegate to assess Ms Dang’s Partner Visa applications. This was the “primary purpose”;
(vi)this material was then produced to the Tribunal as required by s 352(4) for the purpose of the Tribunal conducting a review of the Delegate’s Decision under Pt 5 (disclosure to, and use by, the Tribunal was permitted by reason of s 352(4) and APP 6.2 which provides an exception for the use and disclosure of personal information where it is required or authorised by or under an Australian law);
(vii)Ms Dang sought disclosure for a different purpose again: in order to make submissions to the Tribunal about the review of the Delegate’s Decision under Pt 5, and while this may arguably have constituted a secondary purpose directly related to the primary purpose, it is not for the primary purpose itself;
(viii)the Sponsor Movement Details Report does not appear on the Department file, but rather the Tribunal file, and given its date, it is open to conclude that it was obtained by the Tribunal as part of the process leading to the making of the 2015 Tribunal Decision to hear the earlier review of this matter, and was sought pursuant to s 359(1) which permits the Tribunal in conducting the review to get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. It is plain that in the 2015 Tribunal Decision the Tribunal had regard to the Sponsor Movement Details Report, and Ms Dang must have been aware of it and at least part of its contents, as it is referred to in the 2015 Tribunal Decision: CB 530 at [11]. There is no transcript of the earlier Tribunal proceeding before the Court so it is not possible to know if it was referred to in the course of the hearing;
(ix)the Sponsor Movement Details Report appears to have been obtained by the Tribunal, but was collected by the Department for its own purposes (for example, ranging from border security to law enforcement) under s 489: Gazette notice No. GN 34, 31 August 1994, declares the Movement Data Base to be a notified database for the purposes of s 489;
(x)that it is the initial collection that informs the primary purpose is consistent with APP 5 which provides that an APP entity that collects personal information about an individual must take reasonable steps either to notify the individual of certain matters or to ensure the individual is aware of those matters, including the purpose of collection. Where that information is then required by law to be disclosed to another APP entity, there is no requirement on that entity to take similar steps; and
(xi)however, the purpose of disclosure to Ms Dang would have been at Ms Dang’s request in order to make submissions to the Tribunal on the application for review. This is plainly a secondary purpose.
Consideration – ground 1
The question now to be considered under ground 1 is whether certain information produced by the Tribunal to Ms Dang in response to the Section 362A Request ought to have been redacted. The answer to that question is to be determined by the interaction of the provisions of s 362A and APP 6.
The information sought to be produced in the Section 362A Request and which was produced but which contained information which was redacted comprised:
(a)addresses contained in statutory declarations and statements obtained by the Sponsor to support his withdrawal of sponsorship of the Partner Visa applications;
(b)a mobile telephone number contained in a statement obtained by the Sponsor to support his withdrawal of sponsorship of the Partner Visa applications; and
(c)movement details of the Sponsor in the Sponsor’s Movement Details Report.
Section 362A provides as follows:
(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2)This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3)This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
APP 6 relevantly provides as follows:
Use or disclosure
6.1If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:
(a)the individual has consented to the use or disclosure of the information; or
(b)subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
In Carlos the Federal Court said at [38] per Merkel J:
The specific obligations imposed upon the MRT [the former Migration Review Tribunal] by ss 359A and 362A may fairly be characterised as “leading” provisions designed to give effect to the underlying legislative policy that applicants in matters before the MRT are to be afforded an opportunity to address and deal with information and material before the MRT upon which it will, or may, act in making its decision. Section 362A ensures that an applicant is made aware of the written material given or produced to the MRT member conducting the review. The applicant is then able to address and deal with the written material in so far as it is appropriate to do so. Section 359A is concerned with information irrespective of whether or not it is in written form. Often information will only fall within s 359A after an applicant has been afforded an opportunity to address and deal with written material that has been disclosed under s 362A, as it may only be at that point that the MRT has concluded that the information will form part of its reasons for affirming the decision under review.
An appeal to the Full Court of the Federal Court from Carlos was dismissed: Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087; (2001) 113 FCR 456 (“Carlos Appeal”). In Carlos Appeal at [39] per Wilcox, Von Doussa, and Finkelstein JJ, the approach in Carlos was endorsed, and the Full Court of the Federal Court further observed that:
…It construes s 362A(1) in a manner consonant with well-developed principles of general administrative law and provides a result consistent with ordinary notions of fairness. The approach ensures that the applicant is informed of any factual material that is put before the tribunal member, whether that material emanates from within the tribunal or outside it, but it does not require the tribunal member to disclose to the applicant the nature or content of any advice or assistance the member may receive from persons within the tribunal in resolving a particular case. An applicant needs to know about the former, but not the latter…
In Dhillon the Full Court of the Federal Court dealt with a decision of the then MR Tribunal in relation to disclosure of material in response to a request under s 362A where the MR Tribunal refused access to certain documents. Mr Dhillon had made a request for certain documents under s 362A. The MR Tribunal, under a misapprehension as to the law, did not provide all of the requested documents. The Full Court of the Federal Court held that the MR Tribunal’s decision that Mr Dhillon did not meet Public Interest Criterion 4020 could not be supported where that aspect of the MR Tribunal’s decision was based on an improper refusal of the request under s 362A. Nevertheless, the Minister’s appeal was allowed, the Full Court of the Federal Court holding that the MR Tribunal’s decision in that case could be supported on other grounds.
In Dhillon Mr Dhillon had contended that the refusal to provide the redacted material was a breach of s 362A(1) and that the Tribunal decision should be set aside because the redactions were not justified by s 362A(2). The Full Court of the Federal Court agreed, observing at [15] per Allsop CJ, Murphy and Pagone JJ that:
… The Tribunal’s decision to the extent that it is based on the acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground.
and at [25] per Allsop CJ, Murphy and Pagone JJ that:
…However, whilst it may be accepted, as the Minister contended, that the Tribunal had no obligation under s 359A(1) to give Mr Dhillon particulars of the information in the redacted material to the extent that it was not adverse, the Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal’s decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act1958 (Cth).
In Sandhu v Minister for Immigration and Border Protection [2015] FCA 987; (2015) 236 FCR 63 (“Sandhu”) at [31]–[37] per Logan J (from which the High Court refused to grant special leave to appeal: Sandhu v Minister for Immigration and Border Protection [2016] HCATrans 90) the Federal Court observed that:
31.I turn then to the other principal appeal ground, namely: was there compliance by the Tribunal with s 362A of the Act? And if not, what are the ramifications of that? It is a feature of s 362A(2) that the section does not “override any requirements of the Privacy Act 1998”.
32.As noted, the requirement in Privacy Principle 11, made under the Privacy Act, was thought by the Tribunal to provide a reason why the nominated documents could not be disclosed in full. A difficulty about that is that exposed by Dhillon, at paragraph 13, where the Full Court observed:
Another reason for the engagement of privacy principle para 11(1)(d) was that the law (being the proper application of the principles of procedural fairness) required and thus authorised the disclosure of the information.
33.To understand the point there made it is necessary to set out Privacy Principle number 11:
11.      Australian Privacy Principle 11 – security of personal information
11.1If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information:
(a)       from misuse, interference and loss; and
(b)       from unauthorised access, modification or disclosure.
11.2     If:
(a)an APP entity holds personal information about an individual; and
(b)the entity no longer needs the information by any purpose for which the information may be used or disclosed by the entity under this Schedule; and
(c)the information is not contained in a Commonwealth record; and
(d)the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information;
the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.
34.As soon as one of the exceptions found in Privacy Principle 11 is engaged, as it was in this case, the basis for the Tribunal’s refusal to provide particular nominated documents in full disappears. The Tribunal also erroneously considered that folio 244 was covered by the s 375A certificate. It was not.
35.Thus, there were two classes of document, namely, one thought to have been excluded by a s 375A certificate and the others thought to have been excluded by Privacy Principle 11, which were not disclosed to Mr Sandhu in response to his request, as s 362A required. It has not been necessary, as it would not have been necessary for the Federal Circuit Court, to have regard to those documents in order to reach that conclusion. The conclusion flows necessarily from a true construction of s 362A and Privacy Principle 11, as set out in the passage quoted from Dhillon. To this extent, there was no utility in production pursuant to the notice to produce. Seeing the documents was not at all necessary to reach the conclusion as to a failure on the part of the Tribunal to comply with the mandatory requirements of s 362A.
36.It is true that in Dhillon, as result of the documents in that case having been produced, the Full Court had occasion to consider the materiality of redacted material. That though seems to have been because it was necessary in that case to decide whether the Court ought to permit to be raised on appeal the question as to compliance or otherwise by the Tribunal with s 362A. That particular issue was always one before the Federal Circuit Court and a ground that Mr Sandhu was entitled further to pursue, without any grant of leave by his notice of appeal, to this Court.
37.It is not necessary to determine the appeal to do other than make the observations just made in relation to the notice produce before the Federal Circuit Court. Another reason for that is that the case is not one for sending back to the Federal Circuit Court for hearing afresh. If the appeal succeeded, it would go back to the Tribunal for a hearing on the merits.

The Federal Court further observed in Sandhu at [41]-[43] per Logan J as follows:
41.As to the ramifications of a failure on the part of the Tribunal to comply with s 362A, it is instructive to recall observations made by Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332 at [59] - [61]:
59A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
60The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.
61Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture (140) and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
42.In the passage quoted, their Honours make particular reference to s 360. Section 360 of the Act is, as their Honours observe, central to Division 5 and the conduct of the review for which the division provides. Section 362A complements that and gives meaning to that centrality by equipping an applicant with material which will necessarily be before the Tribunal when the Tribunal comes to conduct the hearing for which s 360 provides. It is one means chosen by Parliament to afford an applicant procedural fairness.
43.Another is the requirement found in s 359A for the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. Section 359A performs, in respect of the Migration Review Tribunal, a like role to that which s 424A performs in relation to the Refugee Review Tribunal. As was said by Gleeson CJ and Gummow, Callinan, Heydon and Crennan in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [13] in respect of s 424A:
A majority of this court in SAAP determined two points about the operation of s 424A: first, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; and second, that its temporal effect was not limited to the prehearing stage.
For like reasons, a breach of s 362A constitutes a jurisdictional error and its temporal effect is not limited to the pre-hearing stage.
The first issue to be determined is whether the redacted information (addresses and a mobile telephone number) is “personal information” for the purposes of APP 6.1.
The words “personal information” are defined in s 6(1) of the Privacy Act to mean:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.
There is no doubt that the addresses and mobile telephone number of a declarant of the relevant statutory declarations or statements is information about identified individuals (the individuals being identified by name in the unredacted portions of the statutory declarations) and is therefore “personal information” for the purposes of APP 6.1.
Critical to the determination of this issue is the nature of the “particular purpose” for which the personal information was collected by the Department, and ultimately also by the Tribunal.
In this case the personal information was collected by the Department in late 2013 as a result of it being provided to it by the Sponsor approximately ten months after he had withdrawn his sponsorship of Ms Dang in December 2012. The particular purpose (and therefore the primary purpose: APP 6.1) of the Department in collecting the personal information was to determine whether or not Ms Dang was the spouse of the Sponsor, or, put slightly differently, to determine if Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
The task upon which the Tribunal was engaged was a review of the Delegate’s Decision, but the particular purpose of that task, and the particular purpose of the task of the Delegate also, was that identified by the Tribunal at CB 735 at [7], namely to determine whether or not Ms Dang was the spouse of the Sponsor, which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa (see the Delegate’s Decision at CB 322 where the Delegate refers to having “assessed the application by” Ms Dang and its “find[ing] that the criteria for the grant of a … [Permanent Partner Visa] are not met by the applicant”).
The Department, in providing the personal information to the Tribunal, was providing the personal information for the same particular purpose for which it had collected the personal information, and the Tribunal in collecting the personal information was collecting it for the same particular purpose, namely, to determine whether or not Ms Dang was the spouse of the Sponsor which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
In the above circumstances the failure to provide the redacted addresses of the declarants (and in one instance a redacted mobile phone number) to Ms Dang was an error because that information would have been provided to her for the particular purpose of assisting the Tribunal to determine if Ms Dang was the spouse of the Sponsor which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
In the circumstances the Tribunal committed error. The question becomes then whether this error was material.
The redaction of the details of the Sponsor’s Movement Details Report could, in a similar manner to that outlined above, have affected Ms Dang’s capacity to respond to relevant issues relating to when the Sponsor was in Vietnam and how much time he spent there with Ms Dang, and when. The movement details were not however collected for the purpose (primary or otherwise) of determining whether Ms Dang was the spouse of the Sponsor (or vice versa). There was therefore no error in not providing the Sponsor’s Movement Details Report to Ms Dang.
The concept of materiality has developed over time, with different modes of emphasis and expression adopted by individual Justices of the High Court. More recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321; (2024) 98 ALJR 610; (2024) 418 ALR 152 (“LPDT”) the High Court set out the following relevant principles:
(a)the requirements of materiality will depend on the nature of the statutory framework and the nature of the error identified in the decision subject to review: LPDT at [5]-[7] per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ:
(i)some errors are so fundamental to the nature of the decision-making task that it will be unnecessary to establish their materiality in order to properly characterise those errors as jurisdictional;
(ii)some errors are such that their materiality will be inherent within their very nature. For instance, legal unreasonableness with respect to a decision will, by definition, be material to the ultimate outcome; and
(iii)other errors are such that it will be necessary for an applicant for judicial review to establish (on balance of probabilities) that, but for the error, a different ultimate outcome could (not would) have been reached had that error not been made (classic materiality); and
(b)where an applicant is erroneously denied an opportunity to make a submission or provide evidence, it is not necessary for that applicant to establish how, if they had that opportunity, they may have used it. It suffices for that applicant to show that there might have been matters the applicant might have advanced using that opportunity that might have assisted their case in a manner that might have led to a different result. This is not an onerous task: Nathanson at [127] per Edelman J, as cited by the plurality in LPDT at [15] and fn 24 per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.
As the Court observed in transcript: Court Hearing Transcript, p 16, the redaction of addresses from the statutory declaration may have deprived Ms Dang of an opportunity to be prompted about something which the names of the Sponsor’s friends (which were not omitted from the statutory declarations and statements) alone did not. A person who might not remember a name might however remember seeing the address written or hearing it spoken, or visiting people at an address, and thereby trigger memories which facilitate a response (or in this case a fuller response) to the material in the statutory declarations and statements. Likewise, the provision of a mobile number might trigger a check to see if the number is in a contacts list, or is a number from which a call or SMS has been received, thereby again possibly triggering memories which facilitate a response (or in this case a fuller response) to the material in the statutory declarations and statements. There is much to be said for the observation that “Memory is a picture”: L Cumming, Thunderclap. A memoir of art and life & sudden death (Chatto & Windus, 2023) p 107.
The failure to provide the requested information pursuant to the Section 362A Request as to addresses and a mobile phone number redacted from the statutory declarations and statements is in the Court’s view a fundamental error, at the very least it is one in respect of which the opportunity to provide a fuller response could (not necessarily would) have resulted in a different ultimate outcome if the opportunity to provide it had been afforded because of the possible triggering of recollection of requisite detail in relation to the material provided in the statutory declarations and statements, all of which went to matters referred to in the reg 1.15A(3) factors.
It follows that the error made by the Tribunal was material, and therefore jurisdictional, and that ground 1 is made out.
Ground 2
Ground 2 is as follows:
2. Further or in the alternative, the Tribunal misconstrued and misapplied the subclause 100.221(4) of the Regulations.
Ms Dang’s submissions
In relation to ground 2 Ms Dang submitted as follows:
(a)clause 100.221(4)(b) of Sch 2 required the Tribunal to ask itself whether at the time of decision Ms dang “would” meet the requirement that she continue to be the Sponsor’s spouse “except that the relationship … has ceased … and … the applicant … has suffered family violence …”. It is accepted that, in order to satisfy this paragraph, Ms Dang was required to establish that she had at some point been in a genuine spousal relationship with the Sponsor: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307 (“Gupta”) at [44] per Farrell, Snaden and Abraham JJ;
(b)in determining whether a genuine relationship existed at any particular point, the Tribunal was required to make findings as to each of the subparagraphs of reg 1.15A(3): He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 (“He”) at [76] per Siopis, Kerr and Rangiah JJ. As the Tribunal itself acknowledged at CB 740 at [34], each of the specific matters in reg 1.15A(3) are questions that need to be answered. At any point in time, each of the matters in reg 1.15A(3) had to be assessed collectively and no individual matter could be independently decisive;
(c)what the Tribunal was not permitted to do was find that Ms Dang and the Sponsor had not been in a genuine relationship based on different circumstances at different points in time. This is especially so when Ms Dang had claimed to have suffered family violence and it is possible the relationship was no longer genuine and continuing because of the violence. The underlying legislative policy is that Partner Visa applicants should not have to remain in violent domestic relationships in order to remain in Australia: Explanatory Statement to the Migration Amendment Regulations 2009 (No.12) Select Legislative Instrument 2009 No. 273, Attachment B; Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170; (2010) 114 ALD 211 at [34] per Moore J, and yet that is precisely what the Tribunal in the present case did. Ms Dang said that as soon as she arrived in Australia the relationship changed and she was subjected to violence in the second week: CB 266 at [27]. The Tribunal however asked Ms Dang at the hearing and ultimately made findings based on the circumstances of the relationship prior to and after her arrival in Australia. The Tribunal made no finding as to the date the relationship ended and no finding as to whether acts of family violence had occurred.
Minister’s submissions
In relation to ground 2 the Minister submitted as follows:
(a)ground 2 appears to assert that the Tribunal erred in its construction of cl 100.221(4) of Sch 2 because when determining whether there had ever been a spousal relationship, it impermissibly considered “different circumstances at different points in time” which was especially so given the allegation of family violence and because it was possible the relationship was no longer genuine and continuing because of the violence;
(b)if Ms Dang is asserting that the Tribunal, when considering the criteria under reg 1.15A(3), had to consider separately each stage of Ms Dang’s relationship with the Sponsor only by reference to the known circumstances at that particular point in time, that submission ought to be rejected. The Tribunal was not required to look at each period of time in isolation but to look at all of the circumstances; and
(c)if Ms Dang is contending that the allegations of abuse and violence necessarily supported a contention that there was a spousal relationship within the meaning of the Migration Act, that also ought not be accepted: Chao vMinister for Immigration and Border Protection [2018] FCA 858 at [29] per Allsop CJ. The Tribunal was also not required to form a view as to the cessation of a relationship as genuine and continuing where it found there was never a spousal relationship to begin with.
Consideration – ground 2
It is uncontroversial that:
(a)Ms Dang first entered Australia as the holder of a Provisional Partner Visa and continued to hold the Provisional Partner Visa;
(b)cl 100.221(4)(b) of Sch 2 requires, for the decision-maker to be in a position to determine that a relationship meeting the requirements of cl 100.221(2)(b) or cl 100.221(2A)(b) of Sch 2 has “ceased”, the decision-maker must first be satisfied that it existed: Gupta at [48] per Farrell, Snaden and Abraham JJ. That is, a decision-maker is to make an assessment of whether there was a spousal relationship prior to the cessation of the relationship: Gupta at [44] per Farrell, Snaden and Abraham JJ; Hanna v Minister for Immigration and Border Protection [2016] FCA 282; (2016) 150 ALD 299 at [23] per Jagot J.
Clause 100.221(2) of Sch 2 relevantly provided as follows:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; and
(b)the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) … at least 2 years have passed since the application was made.
Clause 100.221(2) of Sch 2 therefore required that, as a criterion for the grant of the Permanent Partner Visa, at the time of decision, Ms Dang continue to be sponsored by the Sponsor.
Clause 100.221(4) of Sch 2 sets out an alternative criterion for the grant of the Permanent Partner Visa, namely that:
(4) The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b)the applicant would meet the requirements of subclause (2) … except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) … :
(i) …:
(A) the applicant;
…;
has suffered family violence committed by the sponsoring partner;
Section 5F(1) defines “spouse” to mean that a person is the spouse of another person if, under s 5F(2), they are in a “married relationship”. Under s5F(2), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c)       the relationship between them is genuine and continuing; and
(d)they:
(i)        live together; or
(ii)       do not live separately and apart on a permanent basis.
Section 5F(3) provides that the Migration Regulations may make provision in relation to determination of whether one or more of the conditions in s 5F(2)(a), (b), (c) and (d) exist.
Regulation 1.15A(3) provided that when considering an application for the Permanent Partner Visa the Minister must consider all of the circumstances of the relationship, including:
(a)       the financial aspects of the relationship, including:
(i)        any joint ownership of real estate or other major assets; and
(ii)       any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)       the basis of any sharing of day-to-day household expenses; and
(b)      the nature of the household, including:
(i)        any joint responsibility for the care and support of children; and
(ii)       the living arrangements of the persons; and
(iii)      any sharing of the responsibility for housework; and
(c)       the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)      the nature of the persons’ commitment to each other, including:
(i)        the duration of the relationship; and
(ii)       the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)      whether the persons see the relationship as a long-term one.
(c)regulation 1.15A(2) requires that all aspects of a relationship are to be considered in determining whether a person is a “spouse”, and reg 1.15A(3) lists a number of matters upon which the Tribunal is required to consider and to make findings, including in relation to each placita of each sub-paragraph: He at [76]-[78] per Siopis, Kerr and Rangiah JJ, where it was said that:
76.In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i)whether there are children and whether there is any joint responsibility for their care and support;
(ii)       what the living arrangements of the persons are; and
(iii)whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf [Paerauv Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504; (2014) 63 AAR 164l (2014) 140 ALD 531] at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
77.So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
78.The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.

As required by reg 1.15A(2) and the Federal Court judgment in He the Tribunal considered and determined each of the reg 1.15A(3) factors comprehensively at CB 740-746 at [34]-[83] and 747 at [86]. In so doing the Tribunal had regard to all the circumstances relevant to the relationship between Ms Dang and the Sponsor and found that it was not satisfied Ms Dang was the spouse of the Sponsor “as defined” by the Migration Act and Migration Regulations, and specifically that the criteria in cl 100.211 of Sch 2 was not met: CB 747 at [87]. That was a decision open to be made by the Tribunal on its consideration of all of the evidence before it, and as the Tribunal further found because “the requirement to have been the spouse” of the Sponsor “before the relationship ceased” was not met “the question of whether … [Ms Dang] suffered family violence does not arise”: CB 747 at [86] (the Tribunal having found that the “relationship broke down by 21 December 2012”: CB 735 at [2]).
It follows that the question of the misapplication of cl 100.221(4) of Sch 2 does not actually arise in these proceedings, and that ground 2 is not made out.
Ground 3
Ground 3 is as follows:
3.Further or in the alternative to 1 and 2, the Tribunal’s decision was affected by reasonable apprehension of bias.
Ms Dang’s submissions
In relation to ground 3 Ms Dang submitted as follows:
(a)it is well-established that the test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question the [Tribunal] is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 (“Ebner”) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ;
(b)in Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145 (“Asif”) the Full Court of the Federal Court of Australia found that a decision of the then Immigration Review Tribunal (“IR Tribunal”), refusing to grant a spouse visa based upon a rejection of the applicant’s credibility, had been affected by actual bias. The applicant had applied for a Partner Visa and reg 1.15A(1)(b) made it a requirement to satisfy the Minister that the applicant and sponsor at the time of application had a “mutual commitment to a shared life as husband and wife to the exclusion of all others” and that “the relationship …[was] genuine and continuing”. Just as the Tribunal in the present case found Ms Dang to be an “an unimpressive witness”, whose “overt distress was an attempt to bolster her evidence” the IR Tribunal in Asif held (as reproduced at [6] per Drummond, North and Madgwick JJ):
“As stated earlier, having considered the evidence, I am not satisfied that the Visa Applicant had a genuine commitment as at the date of application. This is because within four weeks of entering into a marriage he denied to a Departmental Officer that he was married. At the hearing before me, he stated that he never lied to the Department. As may be seen from the chronology set out earlier, throughout his period of stay in Australia, the Visa Applicant had lied, presented forged documents and changed evidence, all designed to secure permanent residence. Truth had no relevance to him.
As stated earlier, it is possible that, irrespective of his lies, his commitment to the marriage could be genuine. However, there is insufficient evidence to persuade me that this was the case at the date of primary application …
Having made the above finding, it is not necessary for me to determine his commitment at the date of this decision. Suffice to say, and after his Class 816 was rejected, and having lived with his spouse since November 1995, he may now have formed a genuine commitment to her. However, this was not the case at the date of primary application.”
(c)in Asif the Full Court of the Federal Court held that it was understandable, given the applicant’s history, that the IR Tribunal approached the applicant’s evidence with considerable scepticism, but continued at [19] per Drummond, North and Madgwick JJ as follows:
But … rejection of the [visa applicant]'s own evidence that he had a genuine commitment to the marriage at its inception, ie, at about the date of his application for the visa now in question, could not, of itself, conclude the case against the [visa applicant]; yet that is how the Tribunal disposed of the case.
(d)when a Tribunal has to assess whether a Permanent Partner Visa applicant meets the primary criteria of being “the spouse of an Australian citizen” and, in particular, whether it is satisfied, in terms of the definition of spouse in reg 1.15A(1)(b), that the two persons have a mutual commitment to a shared life as husband and wife and that the relationship between the two persons is genuine and continuing at both visa application date and date of decision, the credibility of the visa applicant, in asserting the existence of such a commitment and such a relationship, is of very considerable importance. But it is not necessarily decisive on either of these issues. Depending on the nature and extent of evidence coming from sources other than the applicant from, for example, a partner, relatives and acquaintances, a decision-maker adopting a proper approach to the Permanent Partner Visa claim may determine that the claim should succeed even though it rejects the evidence of the visa applicant as lacking credibility; and
(e)like the present case, the IR Tribunal in Asif had a significant volume of material from sources external to the applicant which supported the existence of a genuine relationship yet, like the IR Tribunal in Asif, the Tribunal in the present case “entirely ignored the significance of this evidence as probative … because the Tribunal was not prepared to look beyond the [visa applicant]’s own testimony”: Asif at [24] per Drummond, North and Madgwick JJ. In the present case, the Tribunal said at CB 739 at [28] that it could not rely on the evidence of the applicant’s witnesses “where they were prompted by Ms Dang” but did not deal with the balance of the oral witnesses’ evidence or refer to any of the statements provided in support of Ms Dang in its reasons. The Tribunal also only made perfunctory reference to the evidence of Ms Dang’s children at CB 739 at [29].
Minister’s submissions
In relation to ground 3 the Minister submitted as follows:
(a)ground 3 concerns an allegation of a reasonable apprehension of bias by the decision-maker. Uncontroversially, the relevant test is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, confirmed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352; (2006) 231 ALR 663; (2006) 70 IPR 468 and Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; (2021) 95 ALJR 824; (2021) 393 ALR 389; (2021) 64 Fam LR 94 (“Charisteas”) at [11] per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ;
(b)Ms Dang’s primary allegation in support is that, similar to the decision-maker in Asif, the Tribunal ignored corroborative probative material in support of a genuine spousal relationship and was not prepared to look beyond Ms Dang’s testimony;
(c)in Asif the Full Court of the Federal Court held that the Tribunal approached the case on the basis that, only if it were to accept the evidence of the applicant himself that the marriage relationship was a real and genuine one at any relevant date, would it make a finding in the respondent's favour and was not prepared to consider the probative value of any other evidence put before it: Asif at [30] per Drummond, North and Madgwick JJ. In effect, it engaged in a steadfast refusal to evaluate the probative force of any of the evidence from sources other than the respondent himself that was relevant to the issue on which it based its decision and “once it became convinced that the respondent was a wholly untruthful witness the case was over”: Asif at [32] per Drummond, North and Madgwick JJ;
(d)this decision is plainly distinguishable from Asif:
(i)first, in contrast to Asif, the Tribunal here engaged in a detailed analysis of the issues raised by reg 1.15A(3);
(ii)second, in so doing, the Tribunal plainly did not reduce its consideration of the issue of whether there was a genuine spousal relationship to whether it considered Ms Dang to be a credible witness. The Tribunal referred to a range of material when determining the issue. For example, when considering the financial aspects of the relationship alone, the Tribunal:
(A)referred to the difficulty in determining what occurred financially in a situation where Ms Dang gave inconsistent responses to the same question: CB 742 at [45];
(B)appeared to be willing to accept Ms Dang’s evidence regarding some aspects of what occurred financially: CB 742 at [46]-[50];
(C)addressed documentary evidence produced by Ms Dang in the form of a joint bank account confirmation: CB 742 at [52]; and
(D)had before it, and considered, evidence from other sources that were adverse to a finding of the existence of a genuine spousal relationship: CB 744 at [64]-[66];
(iii)third, the Tribunal did not ignore the evidence of Ms Dang’s children and Ms Dang’s other witnesses nor demonstrate an unwillingness to look beyond Ms Dang’s testimony. Rather it found, the evidence was not independent or impartial and that affected its consideration of the weight of that evidence: CB 739 at [28]-[29] and 745 at [74]- [75]. The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J. Further, not all evidence needs to be referred to by the Tribunal in its reasons and the fact that some evidence may not have been expressly noted, does not mean it was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 22; (2011) 119 ALD 1 at [31] per French CJ and Kiefel J; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34] per Katzmann, Griffiths and Wigney JJ;
(e)Ms Dang’s submissions also raise various other matters which it says supports the inference of a reasonable apprehension of bias, and addressing each of those matters in turn:
(i)the matters raised at CB 739 at [23]-[26] were relevant considerations to the credit of Ms Dang and the witnesses she prompted;
(ii)the Tribunal’s assessment of Ms Dang as a witness was not merely reduced to an acceptance of the view of the Magistrate Court, but rather was “in light of having spent considerable time hearing [the] matter” and supported by the Tribunal’s observations at CB 739 at [23]-[28] and its observations regarding the inconsistency of her evidence on various issues (for example, at CB 741-742 at [40]-[45], 742 at [46]-[48] and 743-744 at [60]-[61]), lack of specificity (for example at CB 746 at [81]) and the inherent difficulty in accepting some aspects of her evidence (for example at CB 746 at [82]);
(iii)Ms Dang’s speculation as to why the Tribunal requested a copy of the Magistrate’s Court Judgment when a copy was presumably on the Authority file is purely speculative and the reason for the request is unknown and may have been prompted by a number of other reasons; and
(iv)the fact a submission was not expressly referred to does not mean it was overlooked and the Tribunal was not required to refer to every contention made by Ms Dang in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ, and
nor do these matters collectively suffice to give rise to a reasonable apprehension of bias.
Consideration – ground 3
The test for apprehended bias is as set out in Ebner as reflected in the submissions of the parties set out above: see too Charisteas at [11(fn 3)] per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ.
Ms Dang places much reliance on the judgment in Asif. That reliance is misplaced. In Asif the Full Court of the Federal Court dealt with a case in which an applicant had lied to a Departmental officer about his marital status (saying he was single) just four weeks after he had been married, and the IR Tribunal fastened upon that falsehood to deny the applicant a spouse visa on the basis that the applicant’s own evidence, on the occasion of the falsehood, indicated he was not married. The IR Tribunal was found, both at first instance and on appeal, to have been actually biased, principally because of its refusal to have any regard to a considerable body of evidence indicating that there was a genuine marriage to which both spouses were committed: Asif at [20]-[26] per Drummond, North and Madgwick JJ. Although a case which turned on the issue of actual bias the Full Court of the Federal Court in Asif made a number of pertinent observations concerning the proper approach to determining partner visa cases in the context of reg 1.15A(3), and in particular that:
(a)reg 1.15A(3) “identifies classes of evidence from sources other than the applicant which are logically relevant to proving” an applicant’s state of mind, and to which the Tribunal must have regard: Asif at [22] per Drummond, North and Madgwick JJ;
(b)“the significance” of a “mass of material” put to the Tribunal, and noted by it, for the purposes of reg 1.15A(3) of the Migration Regulations, was “entirely ignored … as probative of the … commitment to the marriage when he entered into it because the [T]ribunal was not prepared to look beyond the respondent’s [applicant before the Tribunal] own testimony”: Asif at [24] per Drummond, North and Madgwick JJ, and the Tribunal “ignored its probative significance”: Asif at [26] per Drummond, North and Madgwick JJ; and
(c)there was an “unexplained failure to comply with the statutory direction in reg 1.15A(3) to have regard to all the evidence relevant to … [satisfaction of] the primary criterion in para 820.211(2) from sources other than the respondent [applicant before the tribunal] that was put before it”: Asif at [30] per Drummond, North and Madgwick JJ.
In Asif at [20] per Drummond, North and Madgwick JJ the Full Court of the Federal Court also observed that the credibility of a visa applicant was “of very considerable importance”, but that, dependent upon the nature and extent of evidence coming from other sources (for example, children and other relatives) it was possible for a visa applicant to succeed even though the visa applicant lacked credibility.
Asif is distinguishable as it was a case dealing with actual and not apprehended bias and because there was a failure by the IR Tribunal to engage with and properly apply reg 1.15A, which is not the case here. Further, the Tribunal here did not ignore the evidence of witnesses other than Ms Dang. As is evident from the Tribunal Decision the Tribunal had regard to the evidence of other witnesses called before the Tribunal by Ms Dang, but:
(a)found it could not rely on their evidence where they were prompted by Ms Dang: CB 739 at [28], the Tribunal having given, at CB 739 at [24], a forthright description of the type of witness prompting engaged in by Ms Dang on at least one occasion during a Tribunal hearing; and
(b)insofar as the other applicants (Ms Dang’s adult children) were concerned, noted their “strong interest in remaining in Australia and supporting their mother”, and that it therefore “prefers to rely on their oral evidence only where it is supported by other evidence”: CB 739 at [29],
these being matters, and an approach to them, which is relatively orthodox.
This is a case in which there was a considerable body of evidence, both oral and documentary, and the Tribunal had at least two separate hearings on the remitted application: CB 736-737 at [15]-[19]. The CB runs to 747 pages and the SCB a further 12 pages. In its lengthy assessment of the reg 1.15A factors the Tribunal had regard to the evidence both oral and documentary and also to the lack of evidence in relation to some issues: see, for example:
(a)Ms Dang’s oral evidence of a lack of evidence of “major purchases together “: CB 741 at [38];
(b)Ms Dang’s evidence in her statutory declaration as to money sent, or given, to the Sponsor: CB 741 at [39];
(c)inconsistencies between the written evidence in the statutory declaration and Ms Dang’s oral evidence to the Tribunal and her evidence recorded in the Magistrates Court Judgment as to money transfers and the availability of a rental property on arrival in Australia: CB 741-742 at [40]-[46];
(d)a lack of documentary evidence as to her alleged purchase of a ticket for the Sponsor to travel to Vietnam: CB 742 at [49];
(e)a lack of transactions in the joint bank account opened in the name of Ms Dang and the Sponsor: CB 742 at [52];
(f)there being no documentary evidence as to the payment of rent or household expenses in Australia: CB 743 at [54];
(g)the oral evidence of Ms Dang and her children as to the Sponsor’s interaction with Ms Dang’s adult children: CB 743 at [56];
(h)the Vietnamese household registration book which the Tribunal accepted as showing the Sponsor was registered as living with Ms Dang for certain periods in Vietnam: CB 743 at [57]-[58];
(i)in relation to the nature of the household in Vietnam and in Australia, the oral evidence of Ms Dang’s children and Ms Dang (and differences in Ms Dang’s oral evidence at two Tribunal hearings), a statutory declaration from Ms Dang’s niece, and various witness statements provided by the Sponsor: CB 743-744 at [59]-[65];
(j)in relation to the social aspects of the relationship, to Ms Dang’s statutory declaration and to six statements from Ms Dang’s family and friends, a statement from a friend of the Sponsor, and oral evidence from a friend of the Sponsor: CB 745 at [70]-[74]; and
(k)in relation to the nature of the commitment between Ms Dang and the Sponsor, to a statutory declaration by the Sponsor as to when he first met Ms Dang in person and that he stayed in Vietnam before returning to Australia, and to Ms Dang’s oral evidence as to the Sponsor staying with her in Vietnam, the nature of their relationship in Vietnam, and the Sponsor’s consumption of alcohol: CB 745-746 at [77]-[82].
In the circumstances it is evident that the Tribunal had regard to the significant volume of evidence and material, both oral and documentary, that was before it and that this is far from a case, like Asif, where the Tribunal ignored relevant evidence or failed to look beyond the testimony of a single witness. Moreover, the Court observes that the Tribunal considered relevant probative evidence and materials and the Tribunal’s reasoning in relation to, and consideration of, the evidence and materials was rational, reasonable and open to it. In that regard the Court also observes that the Tribunal was not required to uncritically accept all or any of the claims made by Ms Dang, or to have rebutting evidence before it could decide not to accept Ms Dang’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347, ALD at 348 per Heerey J).

In the above circumstances, ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
THE INDEPENDENT EXPERT’S OPINION
At the hearing of the Amended Judicial Review Application a further matter also arose with respect to: the independent expert’s opinion [re] (“Independent Expert’s Opinion”): see Court Hearing Transcript pp 10. Pursuant to the Court’s orders of 22 April 2024 Ms Dang’s Further Submissions and the Minister’s Further submissions were filed concerning this matter. Having further considered the issue the Court considers that it is unnecessary to decide as the issue did not arise before the Tribunal given its conclusion that there was no spousal relationship.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)ground 1 has been made out and establishes jurisdictional error in the Tribunal Decision; and
(b)grounds 2 and 3 have not been made out and do not establish jurisdictional error in the Tribunal Decision.
It follows, therefore, that writs of certiorari and mandamus will issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 27 November 2014 and determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
The Court will hear the parties as to costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 16 July 2025
SCHEDULE OF PARTIES

ADG123/2019

Applicants

Fourth Applicant:

HUY HOANG NGUYEN

File number(s):	ADG123/2019
Judgment of:	JUDGE LUCEV
Date of judgment:	16 July 2025
Catchwords:	MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – Partner visa – whether applicants given access to written material before the Tribunal – application of Australian Privacy Principle 6 – whether Tribunal misconstrued and misapplied provision concerning family violence exception to Partner visa criteria – where Tribunal did not wish to go behind the findings of the Magistrate – whether reasonable apprehension of bias – whether jurisdictional error – writs issued
Legislation:	Migration Act 1958 (Cth) Pt 5, ss 5F, 140, 352, 359, 359A 362A, 375A, 476, Privacy Act 1988 (Cth) ss 6, 14, Sch 1 Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) rr 11, 12 Migration Regulations 1994 (Cth) regs 1.15A, 1.23, Sch 2, cl 100.211, 100.221 Migration Amendment Regulations 2009 (No. 12) Select Legislative Instrument 2009 No. 273 (Cth) Explanatory Statement
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; (2001) 183 ALR 719 Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087; (2001) 113 FCR 456 Chao vMinister for Immigration and Border Protection [2018] FCA 858 Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; (2021) 95 ALJR 824; (2021) 393 ALR 389; (2021) 64 Fam LR 94 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352; (2006) 231 ALR 663; (2006) 70 IPR 468 Dang v Minister for Immigration and Border Protection [2016] FCCA 1299 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 Hanna v Minister for Immigration and Border Protection [2016] FCA 282; (2016) 150 ALD 299 He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321; (2024) 98 ALJR 610; (2024) 418 ALR 152 Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 22; (2011) 119 ALD 1 Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228; (2000) 60 ALD 145 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307 Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170; (2010) 114 ALD 211 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80;(2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 'OJ' and Department of Home Affairs (Privacy) [2018] AICmr 35 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619 Sandhu v Minister for Immigration and Border Protection [2015] FCA 987; (2015) 236 FCR 63 Sandhu v Minister for Immigration and Border Protection [2016] HCATrans 90 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 L Cumming, Thunderclap. A memoir of art and life & sudden death (Chatto & Windus, 2023)
Division:	Division 2 General Federal Law
Number of paragraphs:	63
Date of last submission/s:	7 June 2024
Date of hearing:	22 April 2024
Place:	Perth
Counsel for the Applicants:	Mr R Chia
Solicitor for the Applicants:	Challenge Legal
Counsel for the First Respondent:	Ms J Battiste
Solicitor for the Respondents:	Australian Government Solicitor
Second Respondent:	Submitting appearance, save as to costs

ADG123/2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	TRANG PHUONG DANG First Applicant THI MINH TRANG THAI Second Applicant THI THUY TRAN NGUYEN (and another named in the Schedule) Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	16 JULY 2025

ADG123/2019
Applicants
Fourth Applicant:	HUY HOANG NGUYEN