Dau v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 413
•9 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dau v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 413
File number(s): PEG 198 of 2020 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 9 May 2024 Catchwords: MIGRATION – Partner Visa – adverse information – discretionary relief – writs issued Legislation: Migration Act 1958 (Cth) ss. 5F, 359A, 359AA, 376, 424A, 476
Migration Regulations 1994 (Cth) cl.820.211
Cases cited: AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309
Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717
Minister of Immigration, Local Government and Ethnic Affairs vDhillon [1990] FCA 200
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of last submissions: 23 October 2023 Date of hearing: 4 April 2023 Place: Melbourne (via Microsoft Teams) Counsel for the Applicant: Mr Chia Solicitor for the Applicant: JLE Lawyers Counsel for the First Respondent: Ms McKay Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting an appearance save as to costs ORDERS
PEG 198 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAU THI THU HUONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari be issued quashing the decision of the second respondent made on 4 June 2020.
3.A writ of mandamus be issued directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 7 May 2018 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
CHIEF JUDGE ALSTERGREN:
The applicant filed an application in this Court seeking judicial review, pursuant to s. 476 of the Migration Act 1958 (Cth) (‘Act’), of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 4 June 2020. The Tribunal’s decision affirmed a decision of the delegate of the first respondent (‘Minister’) to refuse to grant the applicant a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa (‘visa’).
For the below reasons, I have concluded that the Tribunal’s decision should be set aside and remitted for reconsideration.
Background
The applicant is a citizen of Vietnam. She arrived in Australia in 2014 to study (Court Book (‘CB’) 98). On 18 May 2017, the applicant married the sponsor. On 19 May 2017, she applied for the visa (CB 1-42).
Following a request from the Minister’s Department on 7 April 2018, the applicant provided supporting documents and information to the Department including bank statements and photographs (CB 44-93).
On 7 May 2018, the delegate refused to grant the applicant the visa (CB 94-101). The delegate was not satisfied that the applicant was the “spouse” of the sponsor as that term is defined in s. 5F of the Act and determined that the applicant did not meet cl. 820.211 of the Migration Regulations 1994 (Cth) (‘Regulations’).
The applicant sought review of the delegate’s decision at the Tribunal on 16 May 2018 (CB 102-103).
On 7 August 2018, the Tribunal requested that the applicant provide further information in relation to her relationship (CB 110-112). The applicant forwarded various supporting documents on 16 August 2018 (CB 123-210).
The applicant attended a hearing before the Tribunal on 9 August 2018 (CB 216-218). Shortly prior to the hearing, the applicant handed up a large volume of various documents (CB 219-310). The hearing was adjourned to a further date as the applicant had not provided the supporting documents with sufficient time for the Tribunal to review their content. The applicant was allowed additional time to provide supporting evidence.
Further information was forwarded to the Tribunal on 7 October 2019 (CB 335-349).
The applicant attended a further hearing before the Tribunal on 23 October 2019 (CB 350-352).
On 28 October 2019, the Tribunal invited the applicant to provide the following information (CB 355-357):
Further information and comments surrounding the timing of your engagement and subsequent marriage with relation to the dates of your Student Visa Subclass 573 Visa cancellation. You provided evidence that you were not meeting your requirements to maintain your Student Visa in December 2016 and that you had become engaged in March 2017. The Tribunal notes that the notice of intention to consider cancellation of your Student Visa was sent via registered mail on 2 May 2017. The Tribunal also notes that the notification of the cancellation of your Student Visa was sent via email on 26 May 2017. In addition to the dates of the Student Visa cancellation, your visa application for a UK 820 Visa was submitted only a week before your Student Visa cancellation.
The applicant provided a response on 15 November 2019 (CB 358-380). Further supporting documentation was provided on 29 January 2020 (CB 392-408).
A further hearing was attended by the applicant on 17 February 2020 (CB 409-411).
On 21 February 2020, the applicant requested a copy of the audio from the previous Tribunal hearings (CB 412-413). The Tribunal advised that the recordings would not be released at the time (CB 415). The applicant’s agent responded that he was “astonished” by this and requested that the Tribunal reconsider (CB 416-417). The Tribunal provided the applicant with the recording on 24 February 2020 (CB 418).
On 4 March 2020, the applicant forwarded further information and written submissions dated 3 March 2020 (CB 419-427).
On 4 June 2020, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 431-439) (‘the Tribunal’s Decision’).
Tribunal’s Decision
The Tribunal made a brief introduction outlining the type of visa under review and explaining why the delegate refused the visa (at [1]-[3]). The Tribunal then summarised that the applicant had been represented throughout the proceeding (at [4]-[6]).
A certificate issued under s. 376 of the Act was noted to be in the Department’s file and the Tribunal formed the view that the certificate was valid. It put the “gist” of the information to the applicant under s. 359AA of the Act. The information was that the applicant paid the sponsor the sum of $80,000 for a fake marriage, that the parties do not reside together and that the parties only take photographs of themselves for the purpose of obtaining evidence to support the application (at [7]-[8]). The Tribunal noted that the applicant and the sponsor denied the suggestion that was put to them under s. 359AA. As the allegation could not be tested, the Tribunal placed no weight on the information covered by the s. 376 certificate (at [9]).
The Tribunal identified that the issue in the present case was whether the applicant was the spouse of the sponsor (at [11]).
The Tribunal then detailed that it had a copy of the Department’s file and the delegate’s decision (at [12]-[13]). The information in those documents revealed that the applicant arrived in Australia in 2014 on a student visa, she was advised that the student visa would be cancelled on 26 May 2017 and that she applied for the visa on 19 May 2017 (at [14]). After noting the age of the applicant and the sponsor, it was explained that the applicant commenced studying in Victoria, she travelled to Perth in August 2016 where she met the sponsor and commenced dating him before returning to Victoria, the sponsor proposed in Victoria on 8 March 2017, the applicant and sponsor were married on 18 May 2017 and the visa application was lodged the following day (at [15]-[17]).
The Tribunal noted that there was some confusion about what evidence had been provided to the delegate (at [18]). The Tribunal identified an error that the delegate may have made (stating no further evidence was provided when it was) and confirmed that it had considered all of the evidence provided to the Department and the Tribunal (at [19]-[20]). The Tribunal then itemised a list of some 50 documents that had been provided (at [21]).
After summarising the relevant legislative provisions and principles (at [22]-[23]), the Tribunal accepted that the applicant and the sponsor were validly married as required by s. 5F(2)(a) (at [24]). The Tribunal again confirmed it had considered all of the evidence including the oral evidence provided at the hearing separately by the applicant and the sponsor (at [25]).
In relation to the financial aspects of the relationship:
·The Tribunal referred to the fact that the applicant and the sponsor share a joint bank account and that the applicant’s income is paid into that account. It was noted that a number of cash deposits and withdrawal transactions on the account were unexplained and the Tribunal therefore placed little weight on the joint bank account as evidence in support of pooling of financial resources (at [26]). In terms of joint ownership of assets or joint liabilities, or legal obligations owed to each other, no evidence was provided (at [27]).
·The utility bills that were provided were only addressed to the sponsor at the address the couple claimed to live at. Apart from the joint bank account, the Tribunal noted that no accounts were addressed to the applicant. The utility accounts were given little weight as evidence of the sharing and pooling of financial resources (at [28]).
·The Tribunal referred to receipts for a wedding reception and wedding rings which were made in the names of the applicant and the sponsor. This was, in the Tribunal’s view, a one-off occasion and did not indicate continual sharing or poling of financial resources. Little weight was placed on this (at [29]).
·The tax returns that were provided indicated that the applicant and the sponsor had nominated one another as a “spouse”. It was noted that the sponsor’s tax return was retrospectively amended after the first financial year the couple spent married. Whilst the Tribunal accepted that this could be considered an oversight at the time of lodgement by the party’s tax accountant, without explanation it was stated that it could also be considered an action in order to gather evidence for the purpose of submission for this review (at [30]).
In relation to the nature of the household, the sponsor had an adult child but that child did not reside with them (at [32]). The Couple lived in a house with other friends and housework was shared among all in the household (at [33]) and none of the utility bills bore the applicant’s name so as to suggest that she did actually reside at the address (at [34]). The Tribunal placed only limited weight on the nature of the household as evidence of a genuine relationship (at [35]).
The Tribunal then considered the social aspects of the relationship. It accepted that family members and friends in Vietnam are aware of the relationship however the supporting statements that were provided were from individuals who had had limited or no opportunity to observe the parties together and they provided information that is similar and general in nature (at [37]). Little weight was placed on the degree to which the applicant and sponsor represented themselves as being married. The Tribunal further stated:
38. The Tribunal was provided with some photographs of the parties in various settings without descriptions or dates. The Tribunal finds that while the parties may portray their relationship to others in a limited capacity, the evidence provided is inconsistent with what would be reasonably available for a couple that had been together for over three years and therefore places little weight on how they represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and the basis on which the parties plan and undertake joint social activities.
The Tribunal then considered the nature of the couple’s commitment to one another, the Tribunal:
·Accepted that some friends and family members in Vietnam claimed to be aware of the relationship. However, the Tribunal again noted that all the individuals that had submitted witness statements have had limited opportunity to observe the parties together and they provided information that is similar and general in nature (at [39]).
·Accepted that the parties first met on 6 August 2016 at a party in Perth but was concerned that there was insufficient evidence or explanation as to the development of the relationship after the parties met (at [40]).
·Noted that during the hearing the couple confirmed that the timing of their wedding was to enable the applicant to apply for the visa and therefore remain in Australia. The Tribunal considered that it was plausible that a couple in a genuine relationship may get married in order to apply for a visa to remain in Australia because they do not wish to live apart and may otherwise be forced to do so by the expiration of one party’s visa. However, the plausibility depends on an assessment of all the circumstances of the relationship. The Tribunal considered that it was also plausible that such actions may be driven by someone who is not in a genuine relationship but who may be seeking arrangements to remain in Australia for their own personal reasons (at [41]).
·Was not satisfied that the limited evidence regarding the nature of the commitment between the parties was indicative of a genuine and continuing married relationship (at [41]).
On the basis of the Tribunal’s discussion, it was not satisfied that the applicant met the requirements of s. 5F(2) of the Act and she therefore did not meet cl. 820.211 of the Regulations and could not be granted the visa (at [42]-[46]).
Judicial Review Application
The applicant was legally represented when she commenced these proceedings. She raised a single ground of review as follows:
1. The Second Respondent (the Tribunal) erred by failing to consider relevant evidence given by the Applicant at the hearing.
Particulars
a. At the hearing held on 23 October 2019, the Applicant gave evidence to the effect that the primary reason for choosing 18 May 2017 as the date on which to get married to her sponsor was because she had spoken to her parents in Vietnam who had gone and picked a ‘good’ or auspicious date for the wedding based on her and her sponsor’s star signs.
b. The Tribunal at [40] of its decision, stated that it had concerns about there being insufficient evidence or explanation of the development of the parties’ relationship. It then went on to find at [41] that the limited evidence regarding the nature of their commitment was not indicative of a genuine and continuing relationship.
c. In making the findings at [40]-[41] of its decision, the Tribunal did not have any regard to the evidence given by the Applicant at the hearing, as referred to above at (a). This evidence was about a matter relevant to an issue that was ultimately dispositive to the Tribunal’s findings as to the genuineness of the Applicant and her sponsor’s relationship, and consequently the outcome of the review. As such, the Tribunal’s decision was affected by jurisdictional error.
In support of the single ground of review was the affidavit of Susanne Gloria Jacobs affirmed 15 March 2021 and filed by the applicant on 18 March 2021 (‘Jacobs Affidavit’). That affidavit annexes a copy of the Tribunal hearing on 23 October 2019. I note that that affidavit was filed outside of the time allowed by orders of a Registrar of this Court. I made orders at the hearing granting leave to rely on the affidavit and it was read into evidence without objection from the Minister.
The affidavit of Georgina Roberta Ellis affirmed 4 September 2020 which was filed by the Minister on 7 September 2020, contains case notes from the Departmental file and the Tribunal file. I do not consider them to have any significance to the matters raised in the application but for completeness I read them into evidence.
After obtaining new representation, the applicant sought to rely on an amended application which was annexed to her outline of submissions filed 7 March 2023. The amended application included a second ground of review as follows:
2. Further or in the alternative to 1, the Tribunal materially failed to comply with the requirements of section 359A of the Act.
Particulars
a. The Tribunal failed to give information and invitation in accordance with section 359AA of the Act in relation to the information the subject of the section 376 certificate.
b. The Tribunal failed to give information and invitation in relation to the oral evidence of the sponsor at the Tribunal hearing.
I note that the applicant provided no explanation as to why the ground identified in the amended application was not pleaded in the initial judicial review application. I can only infer it was because there had been a change in legal representation. That, itself, is not reason to grant leave. Certainly, the new ground did not, so far as I am aware, raise a point which could not have been raised earlier (for example, it was not the case that the new ground arose because of a change in the law).
Nevertheless, in circumstances where the Minister did not oppose the application being amended, and was able to properly respond, I decided to grant leave for the applicant to rely on the amended application.
Following the hearing of this matter, my Chambers wrote to the parties on 1 September 2023, noting that the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717 (‘Antoon’) may have some relevance to the parties’ positions in relation to ground 2. The parties were asked to confer and advise whether further submissions should be filed and if so, provide an agreed minute with an appropriate timetable for the filing of further submissions.
The parties sought to provide further submissions in relation to the relevance of the judgment in Antoon and on 6 September 2023 orders were made by consent providing for the filing of these further submissions. Outlines of submissions were filed by the applicant on 27 September 2023, by the Minister on 11 October 2023 and submissions in reply were filed by the applicant on 23 October 2023.
Ground 1
The nub of the applicant’s claim in ground 1 was concisely put in the applicant’s written submissions dated 5 May 2021 as follows:
12. The Tribunal at [40] of its decision, stated that it had concerns about there being insufficient evidence or explanation of the development of the parties’ relationship. It then went on to find at [41] that the limited evidence regarding the nature of their commitment was not indicative of a genuine and continuing relationship. However, in making the findings at [40]-[41] of its decision, the Tribunal did not have any regard to the evidence given by the Applicant at the hearing about the reasons surrounding the date of her and her sponsor’s wedding. As shown in the extracts of the transcript of the hearing held by the Tribunal above, the Applicant had given evidence about engaging her parents’ assistance in a cultural practice of choosing an auspicious date for the wedding based on her and her sponsor’s star signs.
13. While the Tribunal noted at [41] that the Applicant and her sponsor had also given evidence at the hearing to the effect that their wedding was held shortly before the cancellation of the Applicant’s Student visa so that she could apply for a Partner visa and therefore remain in Australia, this did not absolve the Tribunal of its obligation to otherwise consider all relevant evidence given by the Applicant in relation to the review. In any event, the fact that a party may benefit from a particular migration outcome as a result of entering in to a marriage is not necessarily inconsistent with the presence of a genuine spouse relationship as between the relevant parties: Re Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 200 at [11] per Northrop, Wilcox and French JJ.
14. The additional oral evidence given by the Applicant at the hearing about the timing of the Applicant and sponsor’s wedding in the present case was about a matter relevant to an issue that was ultimately dispositive to the Tribunal’s findings as to the genuineness of the Applicant and her sponsor’s relationship, and consequently the outcome of the review. As such, the Tribunal’s decision was affected by jurisdictional error. The Tribunal’s error was material to the outcome of the Tribunal’s decision because had the Tribunal taken into account and properly considered the evidence given by the Applicant as referred to above, it may have made a difference to the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [48].
Ground one turns on what is stated at [40]-[41] of the Tribunal’s decision which provides:
40. The Tribunal accepts the parties first met on 6 August 2016 at a party in Perth. The Tribunal is concerned that there was insufficient evidence or explanation as to the development of the relationship after the parties met.
41. The Tribunal notes the parties, during the hearing, confirmed the timing of their wedding, shortly before the cancellation of the applicant’s student visa, was such as to provide for the for the visa applicant to apply for a spouse visa and therefore remain in Australia. While it is plausible that parties in a genuine relationship may get married in order to apply for a visa to remain in Australia because they do not wish to live apart and may otherwise be forced to do so by the expiration of one party’s visa, the plausibility of that explanation depends, in the Tribunal’s view, on an assessment of all the circumstances of the relationship and of the credibility of the party’s claims and evidence regarding that relationship. It is also plausible in the Tribunal’s view that such actions may be driven by someone who is not in a genuine relationship but who may be seeking arrangements to remain in Australia for their own personal reasons. Again, this will depend upon an assessment of all the circumstances of the application and the credibility of the parties’ evidence. In the present matter, I am not satisfied that the limited evidence regarding the nature of the commitment between the parties is indicative of a genuine and continuing married relationship.
The applicant’s argument is that, in making these statements, the Tribunal overlooked the evidence that had been provided at the hearing. At the hearing before this Court, Counsel for the applicant drew attention to various passages of the transcript (which I set out below). Counsel explained that there was a difference between the evidence that the applicant gave about why there was a ‘rush’ to get married, and about why the applicant chose a ‘specific date’ to get married. Counsel emphasised that the applicant’s evidence was that the expiry of her student visa was the second and unimportant reason for the applicant and the sponsor marrying when they did. It was submitted that the first reason, the explanation as to why she got married on the particular date, was overlooked or the Tribunal failed to consider it (i.e., that the date of the marriage was picked by her family). This, Counsel submitted, was a jurisdictional error.
The exchanges between the applicant and the Tribunal on the particular issue that is in contention is as follows (see Jacobs Affidavit):
MEMBER: What I’m asking is, surely you were aware that had you not got married at that time, you would have had to leave Australia.
INTERPRETER: Because before I received the letter saying that my visa would be cancelled, when I married, the visa was not yet cancelled.
MEMBER: You would have been aware that the Department was going to cancel your visa?
INTERPRETER: Yes, yes, I was aware of it.
MEMBER: So was it a consideration in you getting married so quickly?
INTERPRETER: We really loved each other and it was a genuine marriage.
MEMBER: I’m not asking that. I’m asking, was it a consideration – how did you set your wedding date?
INTERPRETER: In Vietnamese culture the families would try to get a good day for the wedding and after I talked to my family about our plan to get married, they were looking at the calendar, they chose a good day for us to get married. That’s what happened. My husband had proposed to me to marry him two months before the wedding date.
MEMBER: I’ll come back to the proposal. So why did you choose the 18th of May?
INTERPRETER: The l8th of May was the day that we got married. My parents in Vietnam had searched information and they told me that it was a very good day for my marriage.
MEMBER: What was so good about that day?
INTERPRETER: It was, according to the Vietnamese culture, it was the date that we – our star signs got aligned. It meant that we would be living together for the rest of our life.
…
MEMBER: Tell me, so you had your legal wedding that took place in the registry office?
INTERPRETER: Yes.
MEMBER: And then you had another wedding ceremony?
INTERPRETER: Yes. We had a celebration in Perth.
MEMBER: Why didn’t you just have it all at the same time?
INTERPRETER: I was living in Melbourne then. My husband was living here. He had friends here and my adopted parents were in Perth, so I wanted to come to Perth to organise the ceremony.
MEMBER: I put it back to you again, what was the rush to have the wedding ceremony in the registry office?
INTERPRETER: The reason why I was in a hurry because I knew that my student visa would be cancelled and I just wanted to complete the application and paperwork before the cancellation of my visa, so it would be legally [submitted].
MEMBER: I’ve asked you that at least twice already this morning, and that’s not the answer you provided.
INTERPRETER: I was very nervous, so I could not understand the question.
MEMBER: I said at the start, if you’re unsure on any questions, you let me know. Could I suggest then, perhaps you chose your wedding date because you knew your visa was going to expire and you had to lodge an application for a spouse visa?
INTERPRETER: The reason why we married each other was because we were in love-----
MEMBER: That’s not what I’m asking. That’s not what I’m asking there…
…
MEMBER: Okay. So, I don’t want to dwell on it, but I just want to be clear, that the fact that your student visa was going to expire had an influence on why you chose the day you got married in the registry office.
INTERPRETER: Can you please say it again?
MEMBER: I’ll just take you back to your last answer. The fact that you knew your student visa was going to expire influenced the reason why you rushed into a registry marriage.
INTERPRETER: I had accepted my husband’s proposal two months prior the day we married, and the point is my student visa would expire soon, I knew it, and it was the second reason why I got married with my husband on that very day.
MEMBER: So it was something that you considered?
INTERPRETER: The main reason for that day, it was my parents chose the day as a very good day for our marriage. And the expiry date after my student visa was another reason, but unimportant.
The emphasised portion in the passage above is what the applicant claims was not considered by the Tribunal. I accept that this evidence was not identified in the Tribunal’s decision.
A failure to refer to a piece of evidence does not necessarily mean that the evidence was not considered: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]. A failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]. The question is whether the failure to refer to the evidence can be sensibly understood as the Tribunal not considering the particular evidence as material to its conclusion (or finding of fact): Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31]; s. 368 of the Act.
I do not accept that the failure to consider this evidence was a matter relevant to an issue that was ultimately dispositive to the Tribunal’s findings as to the genuineness of the applicant and her sponsor’s relationship.
I note that the Tribunal expressly states at [41] of its decision that:
… it is plausible that parties in a genuine relationship may get married in order to apply for a visa to remain in Australia because they do not wish to live apart and may otherwise be forced to do so by the expiration of one party’s visa”. The Tribunal then noted that it is also “plausible…that such actions may be driven by someone who is not in a genuine relationship but who may be seeking arrangements to remain in Australia for their own personal reasons.
This was consistent with what the applicant’s own Counsel advanced at the hearing before the Tribunal (see Jacobs Affidavit):
MR BLADES: Yeah. The submission I would make is that the desire to regularise her visa status is not necessarily inconsistent with the existence of the genuine relationship. I mean that’s for you to determine.
MEMBER: I’m not suggesting it is, but it does allow me to consider therefore the motivation of entering into the relationship.
MR BLADES: Yes, that’s part of your fact finding role.
MEMBER: So I just want to be clear that we-----
MR BLADES: I mean I suppose - sorry (indistinct), it’s not necessarily an either/or situation.
MEMBER: No.
MR BLADES: Although, as, you know, it’s for you to make the fact finding perform the fact-finding role, but she may have had mixed motivations for what happened.
Clearly, the Tribunal was aware of the statement in Minister of Immigration, Local Government and Ethnic Affairs vDhillon [1990] FCA 200 at [11] which the applicant cites in her written submissions.
Had the Tribunal found that the applicant fell into the latter category (i.e., that the timing of the marriage and the applicant’s evidence was such that it reflected she was only seeking arrangements to remain in Australia for her own personal reasons and not in a genuine relationship), then the failure to consider the evidence would be critical. However, that was not what occurred here.
The “ultimately dispositive” issue in relation to the Tribunal’s assessment of the nature of the applicant and the sponsor’s commitment to one another was that the applicant had provided only “limited evidence”.
As the Tribunal noted at the hearing, the timing of the marriage may well have some relevance to the motivation of the parties for marrying. The importance of [40] must not be overlooked. At [40], the Tribunal noted that there was insufficient evidence or explanation as to the development of the relationship after the parties met. The Tribunal then discussed the timing of the marriage. The “note” about the timing of the marriage must be considered in the context that the applicant had provided limited evidence about the development of the relationship prior to the parties marrying.
Read fairly, what the Tribunal can be understood as stating is that the circumstances of the relationship and the credibility of the party’s claims and evidence regarding that relationship was limited because the applicant had failed to explain the development of the relationship (which led to the parties being married).
Whether or not a part of the reason the applicant got married when she did was because her parents chose the day, and/or because her visa was expiring, the dispositive issue for the Tribunal was that the applicant had provided limited evidence in support of the nature of the relationship (and its development). As the Minister submits, the timing of the marriage (i.e., why the date was chosen) was not ‘sufficiently germane’ to its ultimate finding.
Ground 1 is dismissed.
Ground 2
The applicant contends that there were two material breaches of s. 359A or s. 359AA of the Act by the Tribunal.
Those sections provide as follows:
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method rescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;
or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
If the Tribunal complies with s. 359AA, it is not required to put information to the applicant under s. 359A. Applied to the current circumstances, where it is accepted that no invitation under s. 359A was given, the question is whether s. 359AA was complied with.
Before I turn to the alleged breaches, I note that during the hearing both the parties and the Court referred to materiality. In the course of preparing my reasons, I provided the parties with an opportunity to address the Court on the relevance of Antoon (see [35]-[36] above). In Antoon, the Federal Court held at [95]:
…His Honour was in fact bound by SAAP to conclude that the breach of s 424A constituted a jurisdictional error with the result that the Tribunal’s decision was invalid. That was so despite his Honour’s finding that the “error” on the part of the Tribunal would have made no difference to the outcome of the review…
Relevantly, s. 424A is in the same terms as s. 359A of the Act.
However, his Honour upheld the Minister’s additional ground of appeal which contended that relief should have been withheld on discretionary grounds as the error of the Tribunal by putting information to the appellant could not have realistically changed the outcome, and there was no practical injustice or unfairness to the applicant. In this regard [140]-[141] of Antoon are relevant, as follows:
140. There is no indication that the primary judge gave any consideration to whether, given the finding that the Tribunal’s breach would have made no difference to the overall outcome, the Court should decline to exercise its discretion to grant the relief sought. That was largely a result of the way the parties put their respective cases to the primary judge. The case advanced before the primary judge by Mr Antoon and Ms Jawhar was that any breach by the Tribunal of s 359A of the Act constituted a jurisdictional error and the relief they sought necessarily followed. They did not advert to the fact that the relief they sought was discretionary. The Minister’s case before the primary judge was that the Tribunal did not breach s 359A of the Act and that if it did, there was nevertheless no jurisdictional error because any such breach was not material. The Minister did not argue that if the breach did amount to a jurisdictional error, the primary judge should nevertheless decline to grant relief because the breach was not material and that no useful result could ensue if the matter were to be remitted to the Tribunal.
141. While the issue concerning discretionary refusal of relief was not squarely raised before the primary judge, it was nevertheless incumbent on his Honour to consider whether it was or was not appropriate to exercise the discretion to grant or withhold the relief sought by Mr Antoon and Ms Jawhar. That is because the discretionary nature of the relief attended the jurisdiction conferred on the primary judge by s 476(1) of the Act. The obligation on the primary judge to consider whether to withhold relief on discretionary grounds was particularly acute in this case given his Honour’s emphatic finding to the effect that the Tribunal’s error “would have made no difference to the overall outcome”: J [57]. It is readily apparent that the primary judge proceeded on the basis that Mr Antoon and Ms Jawhar were entitled to the relief as of right once jurisdictional error on the part of the Tribunal had been established. His Honour erred in proceeding on that basis.
As I have noted, submissions regarding the relevance of Antoon to this matter were filed by both parties and are addressed below.
I note that a submission was made by the Minister that SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 (‘SAAP’); was wrongly decided, however it goes without saying, and as the Minister concedes, I am bound by SAAP and such submission is for a higher court.
First Breach
The Tribunal stated at [8] of its decision, as follows:
The Tribunal formed the view that the certificate was valid and made the applicant aware of the existence and validity of the certificate. The Tribunal put the gist of the information to the applicant under s.359AA as adverse information, namely that the applicant paid the sponsor the sum of $80,000 for a fake marriage, that the parties do not reside together and that the parties only take photographs of themselves for the purpose of obtaining evidence to support the application.
The first breach alleged by the applicant contains multiple aspects, and I repeat the applicant’s submissions (filed 7 March 2023) below:
13. In the present case, the applicant submits that there were two material breaches of section 359A of the Act. First, the Tribunal failed to give information and invitation in relation to the adverse information covered by the section 376 certificate, namely the information that that the applicant paid the sponsor the sum of $80,000 for a fake marriage, that the parties do not reside together and that the parties only take photographs of themselves for the purpose of obtaining evidence to support the application. This was information that clearly contained a “rejection, denial or undermining” of the applicant’s claims to be in a genuine relationship with the sponsor and was therefore of objective relevance. Further, the Tribunal subjectively considered this information relevant because it perceived the need to give the information to the applicant under section 359AA of the Act at the hearing. However the Tribunal nonetheless failed to comply with the procedure set out in paragraph 359AA(1)(b) in relation to the applicant. The Tribunal failed to give particulars of the information to the applicant, and failed to explain the relevance of the information and the consequences of it being relied upon. Moreover, and if nothing else, the Tribunal failed to advise the applicant that they could seek further time to comment on the information in the immediate context of the information being given. The failure give information and invitation under section 359AA meant that section 359A(3) did not apply and the Tribunal is in breach of section 359A(1) of the Act.
(Citations removed)
I note the submissions of the Minister (filed 17 March 2023) as follows:
16 As the extracts from the February transcript make clear, the Tribunal gave sufficient particulars of the s 376 certificate information to the appellant, her sponsor, and her representative. Particulars of the adverse allegations made against the applicant were articulated to the applicant’s sponsor expressly, in the applicant’s presence. And particulars of the identifying information arising from the applicant’s Medicare card were given directly to the applicant.
17 Given the clarity and nature of the information provided by the Tribunal to the applicant and in her presence, the relevance of that information and the consequences of it being relied upon were made clear. The applicant’s comprehension of those matters is evident from the detailed subsequent written submissions the applicant made in response (CB 423-424).
18 As to s 359AA(1)(b)(iii) of the Act, the Tribunal’s offer to allow the applicant time to make further written submissions on the s 376 information was made immediately after discussing parts of that information with the applicant and her representative. Not at the end of the hearing or out of context of the information disclosed. No breach of s 359A(1) has been shown.
(Citations removed)
During the hearing, the following exchange occurred (see Jacobs Affidavit):
MEMBER: Okay. Ms Dau, I'm required to make you aware of the existence of a Section 376 Certificate on the Department's file. Under 376, the Tribunal may, if it thinks appropriate, after having regard to any advice given to it by the Secretary of the Department, disclose the material to the Applicant or another person. In this case, the Certificate was issued as the information was provided to the Department in confidence and disclosure may enable a person to ascertain the existence or identity of a confidential source of information. As indicated the Tribunal has discretion as to whether to release the information. First, Mr Blades, I might deal with the Certificate. I'll pass you a copy, for you and for your client. [The Certificate itself] and I'm not (06.58) [sic] that the Certificate is valid. I'm proposing, as I said, not to release the document itself, however, I will be putting any information I consider relevant to the Applicant or other witnesses during questioning.
So at this point, are there any submissions you would like to make in relation to exercise at the Tribunal's discretion and would you like a brief adjournment to consider this advice?
MR BLADES: Yes, a brief adjournment, thank you.
The Tribunal has not explained the relevance of the information, nor disclosed the particulars of the information at this time. Rather, it has just said that during questioning it will be putting to the applicant and the sponsor information the Tribunal considered to be relevant. It did not say that it considered that this information would be a reason or part of the reason for affirming the decision, or the consequence of it relying on this information.
What follows was questioning of the Sponsor by the Tribunal which it could be reasonably assumed related to the information in issue. However, absent from those particulars was any indication that the questions the Tribunal was asking were based upon information provided by a third party. While the applicant was represented, this was necessary in my view. Without this context, I do not consider that the applicant was given a fair opportunity to respond.
As the Minister’s submissions stated, the particulars of the allegations made against the applicant were articulated to the sponsor expressly. In this regard, the transcript states (see Jacobs Affidavit):
MEMBER: I put some information to your wife under what they call 359AA, adverse information, I'm now going to ask you to comment on the same pieces of information that I've provided to her.
MRLE: Yes.
MEMBER: And I'm also happy to provide an adjournment afterwards if you wish to discuss the matter (indistinct 18:12)-----
(Over speaking)
INTERPRETER: (Interpreting).
MEMBER: But I have been provided information that your sponsor paid you $80,000.00 to enter into a marriage for the purpose of applying for a visa.
INTERPRETER: No.
MEMBER: That you don't reside in the same house on a permanent basis.
INTERPRETER: No, it's true, it's true.
MEMBER: That your sponsor lives somewhere else – that your wife, that your wife lives somewhere else. That she does come to your house on a regular basis in order to maintain an impression that you're in a genuine married relationship.
INTERPRETER: It's genuine. And that somebody must have a grudge or bad feelings against us, that's why they did that.
This was the first time it was articulated that information had come from another person. However, once again, it was not explained what the consequence of relying on the information was. Further, the information was put to the sponsor. I do not accept that the fact that the applicant was present during the questioning is sufficient, nor is the following in my view (see Jacobs Affidavit):
MEMBER: Thank you. Ms Dau, if there is anything else you want to say to me at this particular point in time, I'm more than happy for you to make a comment. Thank you, sir. Ms Dau, is there anything else you want to tell me at this point in time?
MS THI THU HUONG DAU, RE-EXAMINED
INTERPRETER: Okay. Well I have just said it all. It's our – we genuinely care for each other. I hoped the Tribunal would help us so that we can spend the future side by side.
Asking the applicant if there was anything she wanted to say after having questioned the sponsor on a number of different matters, including the adverse information, does not comply with s. 359AA. The section expressly says that the particulars of the information must be given to the applicant, not her witness nor her representative. The Tribunal did not do so here.
I also consider that the facts of this matter are clearly distinguishable from AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 (‘AZR16’), upon which the Minister placed some reliance. It is clear from [50] of AZR16 that the Tribunal identified the relevant information and explained why it was relevant. For example, the Tribunal stated clearly to AZR16 that if it relied on the information it might find that he was not a witness of truth. There is no such expression I can identify in the transcript of the Tribunal’s hearing.
I am therefore satisfied that the Tribunal failed to comply with s. 359AA, in that it failed to give clear particulars of the information to the applicant, explain the relevance of that information and give her an opportunity to comment.
It is not in dispute that the Tribunal did not invite the applicant to comment under s. 359A of the Act in relation to the information the subject of the first breach.
In these circumstances, where there has been a breach of ss. 359A and 359AA, such a breach amounts to jurisdictional error, regardless of whether that breach made no difference to the outcome.
Second Breach
The second breach is summarised as follows at [14] of the applicant’s submissions (filed 7 March 2023):
Secondly, the Tribunal failed to give information and invitation in relation to the evidence of the sponsor that the foreshadowed cancellation of the applicant’s student visa was a reason they chose to be married on 18 May 2017, and, further, his evidence that they did not have any joint assets. In both instances, the information contained “in their terms a rejection, denial or undermining” of the applicant’s claim to be in a genuine relationship with the sponsor, as assessed in accordance with regulation 1.15A of the Migration Regulations 1994. And in both instances the information can be inferred to have been considered by the Tribunal to have been relevant because they were relied upon by the Tribunal in its ultimate reasoning. The evidence of the sponsor was not information “the applicant gave for the purpose of the application for review”; however his evidence was not the subject of a written invitation under section 359A or an oral invitation under section 359AA of the Act.
(Citations removed)
I adopt the Minister’s summary of the passages of the transcript, as follows (see Minister’s Supplementary Written Submissions filed 17 March 2023):
24. The passages of the October transcript relied on by the applicant show that the sponsor gave evidence that (a) the applicant’s pending visa cancellation was a reason for their choice of wedding date; and (b) the applicant and her sponsor had no joint assets.
25. But the October transcript reveals that the applicant gave the same evidence on both matters:
MEMBER: I put it back to you again, what was the rush to have the wedding ceremony in the registry office?
INTERPRETER: The reason why I was in a hurry because I knew that my student visa would be cancelled and I just wanted to complete the application and paperwork before the cancellation of my visa, so it would be legally [submitted].
MEMBER: And perhaps other than household belongings, no joint assets?
INTERPRETER: Not at all because we are renting the property,
26. Further, the Tribunal told the applicant’s representative, in the applicant’s presence, that both the applicant and her sponsor had given the same information about the dates of the applicant’s marriage and visa cancellation:
MEMBER: And to be perfectly candid, my biggest concern is the motivation at the moment and the timing of the visa, which I will give some consideration to.
MR BLADES: Yes.
MEMBER: You know, I’ve heard evidence from both of them now, after some prompting, that the timing of the visa cancellation was a factor on the decision of determining what date they were going to get married.
27. The October transcript also shows that the Tribunal offered the applicant an opportunity to make further submissions about her financial circumstances:
MEMBER: Ms Dau, I’m going to ask you to provide some more evidence after we finish today. At least I’m going to provide you the opportunity if you so choose----
WITNESS: Yes.
MEMBER in relation to your financial aspect….
MEMBER: I’ll do that now. So, to - just to provide a submission. Okay. So, ma’am, I’m going to give you another 21 days to provide any further evidence. I am at this point in time genuinely undecided because as I pointed out at the start, you have to be more than just legally married. So that will give your agent and yourself time to submit some more information, could I suggest perhaps around your financial situation?
28. And at the February 2020 hearing, the sponsor told the Tribunal, in the applicant’s presence, that their marriage date had been chosen to allow the applicant’s visa application to be lodged in time:
MEMBER: So is it fair to say you got married on the 18th of May in order to lodge a visa application so that your wife can stay in Australia?
INTERPRETER: Yes, it’s correct like that. We met in August 2016, we planned to get married at the end of 2017. I didn’t want her having to go back to Vietnam so we had it earlier than planned.
The crux of the Minister’s submissions was that, ultimately, the sponsor gave the same evidence as the applicant and therefore the ‘information’ was information provided by the applicant under s. 359AA(4)(b) of the Act.
The difficulty with this submission is that the Tribunal states at [25] that it has ‘also considered the oral evidence provided by the applicant and the sponsor separately at the hearings’ and referred to the evidence of the ‘parties’ not just the applicant in the respective passages (at [27] and [41]). Therefore, I consider that it was the evidence of the applicant and the sponsor which was the reason, or part of the reason, for affirming the decision. I therefore find that the ‘information’ from the sponsor on these matters was information for the purposes of s. 359AA.
The Minister states in his written submissions that “…an invitation may not have been offered expressly to the applicant orally or in writing regarding her sponsor’s evidence…” (Minister’s Supplementary Written Submissions filed 17 March 2023 at [32]). In light of the Minister’s concession that the sponsor’s evidence was not put to the applicant, I am of the view that there has been a breach of s. 359AA. Once again, the Tribunal did not put the information to the applicant in writing as required by s. 359A. Accordingly, the Tribunal has fallen into jurisdictional error.
Discretion
As stated by his Honour Justice Wigney in Antoon, even where the issue of discretionary relief has not been squarely raised, it is incumbent upon the Court to consider whether relief should be granted or withheld. Before I turn to consider this, I note that in the applicant’s submissions it was raised that the Minister had not contended that relief ought be denied on discretionary grounds and would need to amend their response and, I infer, that this would prejudice the applicant as she has not had the opportunity to adduce evidence.
I do not accept these arguments.
First, and dispositively, it is well accepted and has been for some time that the grant of constitutional relief is discretionary. As stated in Antoon, it is incumbent on the Court to consider the question of relief even if not put in issue by the parties.
Second, when the Minister filed the response, the ground alleging a breach of s. 359A (and s. 359AA) had not been pleaded, meaning, even if I accepted that the response had to refer to discretionary relief, at the time the response was filed it was entirely unnecessary to refer to discretionary relief because, for reasons I have given above in relation to ground 1, there was no jurisdictional error. The applicant was given leave at the hearing to raise this ground for the first time. It would be unfair for the Court to hold the Minister to a response filed over 2 years prior to the ground even being raised.
Third, I do not agree that the applicant has been prejudiced (noting the first reason I have stated above), and also noting that the applicant did, in fact, address the information the subject of the breach of s. 359A in post-hearing submissions to the Tribunal. That evidence is in the Court Book (CB 422-427).
I turn now to whether I should exercise my discretion to withhold relief.
I acknowledge that there is a need for the exercise of considerable caution before withholding relief after jurisdictional error has been demonstrated: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [95]-[100].
In Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34; 264 CLR 123 (‘Hossain’), Edelman J stated at [74]:
There has long been a residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd, this Court said that discretion might be exercised to refuse a writ of certiorari "if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made". Reference to the potential exercise of discretion where no useful result could ensue thus looks forward to the utility of another hearing. Although the residual discretion is not confined to being "forward looking", it contrasts with the usual consideration of materiality, discussed above, which looks backwards to whether the error would have made any difference to the result.
The exercise of residual discretion to refuse relief may, in an appropriate case, depend on a backward-looking test of whether there could possibly have been a different outcome: Hossain at [43].
In Antoon, his Honour Justice Wigney surveyed some of the authorities, as follows:
144. It may be readily accepted that the issue concerning the discretionary refusal of relief in this matter was not and is not as clear-cut as was the case in SZBYR. As noted earlier, in that case the Tribunal had affirmed the decision to refuse the appellants’ visa applications for a reason (the absence of any Convention nexus) that was largely unaffected by or independent of the breach of s 424A of the Act. It does not follow that the discretion to refuse relief is only enlivened in those circumstances where there was an independent reason for dismissing the review.
145. It may equally be accepted that in SAAP, McHugh J appeared to suggest that the fact that the visa applicant in that case had an opportunity to deal with the adverse information, despite the breach of s 424A of the Act, did not affect the discretion to grant relief. That said, materiality is a question of fact and each case must be considered having regard to its unique facts and circumstances. The facts and circumstances of this case differed in a number of respects from the facts in SAAP.
146. In VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141, the Full Court held (at [45], [52]) that it was appropriate to refuse relief in respect of a breach of s 424A of the Act where the applicant was not in fact disadvantaged by the breach or had an opportunity to address the information in any event: see McHugh J’s reference to that decision in SAAP at [82]. The critical question is whether the Court can be positively satisfied that compliance with the relevant obligation “could not have made any difference”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; SAAP at [81] (McHugh J). This is a case where the Court can be positively satisfied that strict compliance by the Tribunal with the requirements of s 359A of the Act could not realistically have made any difference.
First Breach
In relation to the first breach, I consider the following passage of the Tribunal’s decision (at [9]) critical:
During the hearing both the applicant and sponsor denied the suggestion that was put to them under s.359AA. As the allegation could not be tested the Tribunal placed no weight on the information covered by the s.376 certificate in the conclusion to decide to affirm the decision under review.
This statement makes it unequivocally clear that the Tribunal did not consider the information in making its decision to affirm the decision of the delegate. In a sense, it disavowed the information.
The Tribunal did not use the information as a reason for rejecting the applicant’s claims, nor as a basis to undermine or question the applicant’s or the sponsor’s credibility. Further, I give weight to the fact that after the hearing before the Tribunal, the applicant’s representative provided submissions which addressed the information and why the Tribunal should not accept it (CB 422-427). The Tribunal did as the applicant asked it to do. I find that the breach of s. 359A or s. 359AA could not have made a difference to the outcome.
The Tribunal’s disavowal and express attribution that it gave no weight to the information is the ‘best case scenario’. It amounts, in some senses, to a rejection of the adverse information. If the matter was to return to the Tribunal, regardless of what information the applicant may then adduce, I do not see what finding of the Tribunal could be more favourable than the Tribunal stating it does not place any weight on the adverse information. I do not consider that the failure to put the information in strict compliance with s. 359A or s. 359AA disadvantaged the applicant.
I am positively satisfied that compliance with s. 359A could not have made, nor could make if the matter is remitted, a difference to the outcome. For the avoidance of doubt, I reach the same conclusion on a backward-looking approach (see [90] above) and a forward-looking approach (see [91] above).
Accordingly, were this the only breach I would exercise my discretion to withhold relief.
Second Breach
I must be positively satisfied that had the Tribunal invited the applicant to comment on the evidence her sponsor gave about the date of their marriage and their joint assets, it could have made, and could make, a difference to the outcome.
Where evaluative or subjective assessments are required, a different decision-maker may come to a different view. This might be based on the same information, or on additional or new information. However, as stated in Antoon, the discretion to refuse relief is not enlivened only in those circumstances where there was an independent reason, or alternative basis, for making a decision (at [144] of Antoon). Nevertheless, there is a fine line between the Court’s consideration of the discretion, and an impermissible slide into merits review.
While I have reservations about what the applicant could have done (expressly accepting that she had the opportunity, and took the opportunity, to make further submissions following the Tribunal hearing), and could do differently, I am not positively satisfied that compliance with ss. 359A/359AA could not make a difference to the outcome at any further hearing. A different Tribunal may take a different view on the question of the timing of the marriage, or the absence of joint assets. New evidence and arguments can be provided.
Noting the considerable caution to be exercised in refusing relief, and that I should be positively satisfied that compliance could not make a difference (which I am not), I do not consider it appropriate to exercise my discretion to withhold relief.
Conclusion
For the reasons given above, I order that the Tribunal’s decision be set aside and remitted for reconsideration.
In circumstances where the applicant made a late amendment to the application necessitating further submissions and the additional submissions required to be filed in response to Antoon, I will hear the parties on the appropriate orders as to costs.
I note that the name of the Minister has changed since this matter was commenced. I will therefore make an order that the name of the first respondent be changed to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 9 May 2024
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