Doan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1119
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1119
File number(s): ADG 142 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 31 October 2024 Catchwords: MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – citizen of Vietnam - refusal of Partner (Temporary) (Class UK) visa – whether consideration given to joint responsibility for the care and support of the children – whether new evidence able to be put before Court – whether existence of unborn child relevant to nature of persons’ commitment to each other and to whether relationship a long term one – whether Tribunal required to consider best interests of the child – whether Tribunal required to have regard to requirements in international convention concerning the best interests of the child – whether case concerning international convention put before the Tribunal – whether international convention obligations enacted in domestic law – whether proposed new evidence indicative of fraud on the Tribunal – whether fraud on the Tribunal – whether jurisdictional error otherwise - whether material jurisdictional error – writs issued.
EVIDENCE – Further affidavit evidence filed – where evidence not before the Tribunal at the time the decision was made – whether affidavit evidence bears on any alleged jurisdictional error – where evidence post-dates decision of the Tribunal – whether proposed new evidence indicative of fraud on the Tribunal.
Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth) s 4, Sch 16, Pt 2, Item 10, Pt 5, Item 25
Evidence Act 1995 (Cth) ss 56, 140
Family Law Act 1975 (Cth) s 90UD
Migration Act 1958 (Cth) ss 5F, 359AA, 375A, 376, 474, 476
Migration Regulations 1994 (Cth) reg 1.15A, Sch 2, Pt 820
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112; (2003) 78 ALJR 180; (2003) 78 ALD 8
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100
Bui v Minister for Immigration & Citizenship [2010] FCA 234; (2010) 114 ALD 235
Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31; (2010) 270 ALR 393; (2010) 116 ALD 126; (2010) 187 FLR 31
Commonwealth and Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EXV17 v Minister for Home Affairs [2018] FCA 1780
He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17
Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235; (2017) 73 AAR 380
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Mabirou Mounguengue v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 537
Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443; (2008) 245 ALR 50
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459
SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Singh v Minister for Immigration [2019] FCCA 2796
Singh v Minister for Immigration and Border Protection [2018] FCCA 3420
Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82; (2014) 315 ALR 352; (2014) 145 ALD 273
SZFDE and Others v Minister for Immigration and Citizenship and Another [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64
SZFDE v Minister for Immigration and Citizenship and Another [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
SZSXT v Minister for Immigration & Border Protection & Anor [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437
Tesic v Minister for Immigration and Border Protection [2017] HCASL 271
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 24 April 2024 Date of hearing: 24 April 2024 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Ms M Pappas Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 142 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI DIEM HANG DOAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent (formerly the Administrative Appeals Tribunal) made on 20 March 2019.
2.A writ of mandamus issue requiring the Second Respondent (formerly the Administrative Appeals Tribunal) to re-determine the review of the decision of the Delegate of the First Respondent made on 24 November 2016, 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 applicant, Thi Diem Hang Doan (“Ms Doan”), has applied for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) affirming an earlier decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”), to refuse to grant Ms Doan a Partner (Temporary) (Class UK) visa (“Partner Visa”). By reason of the Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth), s 4, sch 16, Part 2, Item 10, and Part 5, Item 25, the Administrative Review Tribunal is substituted for the Tribunal as a party to these proceedings.
The Tribunal Decision appears in the Court Book (“CB”) at 717-728.
BACKGROUND
General background
The general background to this matter is as follows:
(a)Ms Doan was born on 28 September 1989 and is a citizen of Vietnam: CB 12;
(b)on 16 September 2015 Ms Doan applied for the Partner Visa on the basis of her marriage to an Australian citizen, Mr Mustaque Hassan (“Mr Hassan”): CB 15, 18 and 60-68;
(c)to be granted the Partner Visa Ms Doan was required to meet the criteria set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), that criteria requiring that at the time of the Partner Visa application, Ms Doan be the “spouse” of an Australian citizen: CB 310;
(d)on 29 January 2016 a child was born to Ms Doan of which Mr Hassan was the father: CB 149, 289, and 306;
(e)on 24 November 2016 the Delegate refused the Partner Visa application on the basis that the Delegate was not satisfied that Ms Doan was the “spouse” of Mr Hassan at the time of the Partner Visa application: CB 302-328;
(f)on 25 November 2016 Ms Doan applied for review of the Delegate’s Decision by the Tribunal: CB 332-333; and
(g)on 31 October 2018 Ms Doan attended a hearing before the Tribunal (“Tribunal Hearing”): CB 514-515.
TRIBUNAL DECISION
In the Tribunal Decision published 10 March 2019 the Tribunal made the following findings:
(a)Ms Doan and Mr Hassan were married: CB 723 at [41];
(b)whilst Ms Doan and Mr Hassan owned a car jointly and leased a property (“Labrador Property”), there was limited evidence of any other pooling of financial resources: CB 723-724 at [43]-[51];
(c)Ms Doan and Mr Hassan had a three year old son who was not born at the time of the Partner Visa application, but Ms Doan was pregnant with the child at the time of the Partner Visa application: CB 724 at [53]-[54];
(d)property settlement documents showed that Mr Hassan separated from another woman, Ms Rahman, in 2017 (after the date of the Partner Visa application): CB 724 at [55];
(e)Mr Hassan was maintaining residence with both Ms Doan at the Labrador Property and Ms Rahman at a property in Arundel (“Arundel Property”): CB 724-725 at [55]-[57];
(f)Ms Doan and Mr Hassan each had a lack of knowledge of each other’s friends and there was a lack of evidence of them being represented to people as married (other than to Ms Doan’s family): CB 726 at [68];
(g)Ms Doan and Mr Hassan had lived together intermittently for approximately a year before the Partner Visa application: CB 726 at [70]; and
(h)that Ms Doan and Mr Hasan had been in some form of relationship since 2014 which was genuine and continuing, however, was not satisfied that they had a mutual commitment to a shared life to the exclusion of all others at the time of the Partner Visa application. In particular, the Tribunal was not satisfied that Mr Hassan was not in a relationship with Ms Rahman (and maintained a presence in her household) at the time of the Partner Visa application: CB 726 at [72].
The Tribunal Decision was to affirm the Delegate’s Decision not to grant Ms Doan the Partner Visa: CB 717 and 727 at [74].
THE JUDICIAL REVIEW APPLICATION
Filing and docketing
The Judicial Review Application was filed on 15 April 2019, and docketed to the presently presiding Judge in November 2022.
Grounds
There are two grounds of review in the Judicial Review Application, and these are set out at [23] (ground 1) and [34] (ground 2) below.
Orders previously made
In June 2019 a Registrar of the Court made orders by consent providing for both Ms Doan and the Minister to file and serve various materials, but save for the Minister filing and serving the CB the orders by the Registrar for filing of other materials were not complied with.
On 23 November 2022 at a directions hearing the Court made orders (“Court’s November 2022 Orders”) which included the following:
2.Orders 2-7 and 9 of Registrar Parkyn’s orders of 4 June 2019 be set aside and in lieu thereof orders that:
(a)the Applicant file and serve any amended originating application, further affidavits and an outline of submissions by 25 August 2023;
(b)the First Respondent file and serve any amended response, affidavits in reply and an outline of submissions by 15 September 2023; and
(c)the matter be listed for final hearing by video link on 20 October 2023 at 12.30pm ACDT/10.00am AWST before Judge Lucev.
The Court notes that the final hearing of the matter ultimately did not take place until 24 April 2024.
Relevant legislation
Section 5F(1) of the Migration Act defines “spouse” as persons that are in a “married relationship”. Under s 5F(2) of the Migration Act persons are in a “married relationship” if:
(a)they are married to each other under a marriage that is valid for the purposes of the Migration Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they live together or do not live separately and apart on a permanent basis.
Regulation 1.15A of the Migration Regulations provides as follows:
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Regulation 1.15A(2) of the Migration Regulations requires that all aspects of a relationship are to be considered in determining whether a person is a “spouse”, and reg 1.15A(3) of the Migration Regulations 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 v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 (“He”) at [76]-[78] per Siopis, Kerr and Rangiah JJ, where it was said that:
76In 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) 219 FCR 504; [2014] FCAFC 28] 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.
77So 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.
78The 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.
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Tribunal upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review … must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Tribunal are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
Affidavits filed by Ms Doan
Ms Doan did not file an amended Judicial Review Application or any written submissions as she was entitled to do pursuant to the Court’s November 2022 Orders: see [9] above. Ms Doan did however file a number of affidavits. The affidavits filed by Ms Doan are as follows:
(a)an affidavit affirmed 24 February 2022 annexing:
(i)a statutory declaration of Ms Rahman dated 10 February 2022 (“Rahman Statutory Declaration”) in which Ms Rahman asserts that she made allegations to the Department of Immigration concerning the relationship between Ms Doan and Mr Hassan but that those allegations were not true, and that she did it because of jealousy, and that she and Mr Hassan did not live together anymore at that time (when she made the allegations between 15 September 2016 and 22 November 2018), and that she knows that Ms Doan and Mr Hassan “still live happily together until now”; and
(ii)a medical report of Ms Doan’s son following assessments in 2020 resulting in a diagnosis of autism spectrum disorder;
(b)an affidavit affirmed on 11 August 2023 annexing an unsigned copy of a document said to be the last will and testament of Mr Hassan from 2023 in which Mr Hassan devises and bequeaths the whole of his real and person estate to Ms Doan;
(c)an affidavit dated 21 August 2023 annexing two letters dated 6 and 16 August 2023 respectively from members of the South Australian Bangladeshi community regarding Mr Hassan and Ms Doan living together as husband and wife;
(d)an affidavit dated 23 August 2023 annexing a medical certificate dated 22 August 2023 for Mr Hassan and photos of Mr Hassan’s medical condition; and
(e)an affidavit affirmed 25 August 2023 annexing a statutory declaration dated 25 August 2023 from Mr Hassan (“Hassan Statutory Declaration”) regarding a medical condition, said to be severe psoriasis, as a consequence of which he suffered confusion in relation to people’s names, dates and a lack of memory, and that any statements made by him concerning Ms Rahman in the period 2014 to 2016 were therefore unreliable, and that his psoriasis meant that he was unable to change his address on papers during that period. Mr Hassan also said that all the allegations related to him and Ms Doan made by Ms Rahman were “false and fake. She was jealous and tried to sabotage me and my wife”.
Ms Doan’s affidavits were not before the Tribunal at the time the Tribunal made the Tribunal Decision. Much of the evidence in Ms Doan’s affidavits might arguably be said to have been presented to invite the Court to make new factual findings contrary to those made by the Tribunal. Such a course is not permissible upon judicial review: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47 (“Tesic”) at [55] per Reeves, Robertson and Rangiah JJ (from which an application for special leave to appeal was refused by the High Court: Tesic v Minister for Immigration and Border Protection [2017] HCASL 271 at [1] per Bell and Nettle JJ). Further, if any of the affidavit evidence does not bear on any jurisdictional error alleged by Ms Doan (as to which see grounds 1 and 2 at [23] and [34] below), nor any jurisdictional error otherwise: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J, the affidavit evidence is not admissible on this Judicial Review Application as it is irrelevant: Evidence Act 1995 (Cth) (“Evidence Act”), s 56(2).
Ms Doan seeks to have the Court consider the new evidence in the affidavits for the purposes of this Court considering her Judicial Review Application. Courts considering judicial review applications generally resist the introduction of new evidence in judicial review proceedings.
In MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 (“MZXLD”) at [10]-[11] per Gordon J the Federal Court observed as follows:
10The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]-[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
11Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15]-[16] (per Weinberg J).
There is not, however, an absolute prohibition on evidence being admitted in judicial review proceedings. In Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31; (2010) 270 ALR 393; (2010) 116 ALD 126; (2010) 187 FLR 31 (a case concerning the validity of appointments to a committee set up pursuant to statute) at [40]-[42] per Bromberg J the Federal Court observed that:
40The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon. Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J.
41Authorities dealing with ADJR Act challenges have recognised that in relation to particular grounds of review, evidence beyond the evidence that was before the decision maker may be relevant and admissible. Without seeking to suggest that the following list is exhaustive, evidence beyond that which was before the decision maker may be relevant where the following grounds of review are raised:
•the unreasonable exercise of the power given to the decision maker: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 539-40; Australian Retailers at [458]; Hand at 320; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169;
•excess of jurisdiction because of the absence of a jurisdictional fact: McCormack at [38]-[40]; Attorney General for the Northern Territory v Minister for Aboriginal Affairs at 539-540; and
•a breach of the rules of procedural fairness: Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 per Weinberg J; McCormack at [38]; Hand at 320.
42The position at common law is similar, if not the same. As Denning LJ said in R v Northumberland Compensation Tribunal, ex parte Shaw [1952] 1 KB 338 at 352:
“When Certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.”
See further, Ex parte Mullen; re Hood (1935) 35 SR (NSW) 289 at 296 per Jordan CJ and R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800 per Lowe, O'Bryan and Smith JJ.
At hearing the Court ruled the affidavits filed by Ms Doan were inadmissible, save as to the following:
(a)the Rahman Statutory Declaration; and
(b)the last sentence of paragraph 1 and the last sentence of paragraph 5 of the Hassan Statutory Declaration.
The material ruled inadmissible was ruled inadmissible because it was material which post-dated the Tribunal Decision and which effectively invited the Court to undertake impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tesic at [55] per Reeves, Robertson and Rangiah JJ; MZXLD at [10] per Gordon J. The material in Ms Doan’s Affidavits which was not ruled inadmissible was considered by the Court to be admissible because it might be material which is relevant to a possible fraud on the Tribunal: as to which see SZFDE and Others v Minister for Immigration and Citizenship and Another [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64 (“SZFDE”) and Minister for Home Affairs v DUA16 [2019] FCAFC 221; (2019) 273 FCR 213 (“DUA16 - FCAFC”) at [42]-[47] per Griffiths J. Although fraud on the Tribunal was not pleaded as a ground of the Judicial Review Application, it is a matter which arguably arises on the basis of Ms Doan’s Affidavits (and, in particular, the Rahman Statutory Declaration), and is therefore a matter in respect of which, bearing in mind that Ms Doan was self-represented, requires the Court to remain independently alert to the possibility of a jurisdictional error having been made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Before dealing with the issue of possible fraud on the Tribunal it is convenient to deal with grounds 1 and 2 of the Judicial Review Application as pleaded.
Ground 1
Ground 1 is as follows:
That the tribunal failed to appreciate that the existence of the child, OLIVER KHAN (born on 29 January 2016) was a relevant factor pointing towards a mutual commitment to a shared life to the exclusion of all others between the Applicant and her husband, MUSTAQUE HASSAN.
To be granted the Partner Visa Ms Doan was required to be the “spouse” of Mr Hassan at the time of the Partner Visa application. The Partner Visa application was made on 16 September 2015. At the time of the Partner Visa application, 16 September 2015, Ms Doan and Mr Hassan’s first child had not yet been born. He was born on 29 January 2016: CB 149, 289, and 306.
The Tribunal properly directed itself to the issue of a spousal relationship in the Tribunal Decision at CB 722 at [36]:
[36]Clause 820.211 requires that at the time the visa application was made Mrs Doan was the spouse of Mr Hassan, and the issue in this case is whether Mrs Doan was the spouse of Mr Hassan at the date of the application.
At CB 724 at [53]-[54] the Tribunal correctly directed its attention to the fact that it was assessing the situation at the time of the Partner Visa application, and had regard to the fact that Ms Doan and Mr Hassan had joint responsibility for the unborn child, stating (transcribed without amendment):
[53]The parties have a son who is now three, however at the time of the application Oliver was not born and Mrs Doan was pregnant. The parties are married and are both named on their son’s birth certificate as the parents. Currently their son lives with Mrs Doan in Adelaide while Mr Hassan is working in the United States. The childcare worker who cares for their son while they are working gave evidence that Mr Hassan collects their son from childcare when he is in Adelaide. The childcare records the signatures of both Mrs Doan and Mr Hassan.
[54]At the time of the application, as Mrs Doan was pregnant and does not have contact with Mr Hassan’s son, the parties had joint responsibility for their unborn child, but did not otherwise have joint responsibility for the care and support of children.
It is true, as the Minister submitted, that:
(a)the existence of an unborn child was only one circumstance, to be considered with all the other circumstances of the relationship; and
(b)when assessing the Partner Visa criterion the Tribunal understood, and took into account, that Mr Hassan had a living son (born to Ms Rahman in August 1998 and therefore aged 17 at the time of the Partner Visa application: CB 688) with another woman, with whom Ms Doan did not have contact, and that there was an unborn child of the relationship between Ms Doan and Mr Hassan.
As set out above the Tribunal was required to consider “all of the circumstances of the relationship”: Migration Regulations, reg 1.15A(2); He at [76]-[78] per Siopis, Kerr and Rangiah JJ. Included in the matters to be considered when considering all of the circumstances of the relationship were two matters relevant to the circumstances of this case, namely:
(a)“the nature of the household, including … any joint responsibility for the care and support of children”: Migration Regulations, reg 1.15A(3)(b)(i); and
(b)“the nature of the persons’ commitment to each other, including … whether the persons see the relationship as a long term one”: Migration Regulations, reg 1.15A(3) (d)(iv).
It is relevant to observe that:
(a)in assessing the joint responsibility for children criterion the Tribunal had regard to the unborn child. There is therefore no reason why, in assessing another criteria, the nature of commitment criteria, the Tribunal ought not to have had regard to the unborn child; and
(b)in submitting that the Tribunal Decision was not affected by jurisdictional error the Minister’s submissions pointed to the Tribunal having had regard to the unborn child when considering the joint responsibility for children criterion.
If the circumstance of the unborn child was relevant to the joint responsibility for children criterion, then there is no reason that the circumstances ought not to be relevant to any other criterion to which that circumstance might apply. The fact that Ms Doan was pregnant at the time of the Partner Visa Application was a matter relevant to the nature of the commitment that Ms Doan and Mr Hassan had to each other, and as to whether they saw that commitment as being a long term one. Indeed, it might be observed that the existence of an unborn child is a matter which might more naturally be considered as part of the nature of each persons’ commitment to the other than as to the nature of the household into which the child has not yet been born. The Tribunal did not separately consider a matter patently relevant to the nature of the commitment Ms Doan and Mr Hassan might have had to each other, namely the fact of the unborn child. Further, there was no consideration by the Tribunal as to what extent, if at all, the fact that Ms Doan was pregnant, and that she and Mr Hassan were going to have a child, might evidence the nature of their commitment to each other and whether they saw the relationship as a long term one: He at [76]-[77] per Siopis, Kerr and Rangiah JJ. The failure to consider those matters meant that they were not weighed in the balance when considering other evidence as to whether or not Ms Doan and Mr Hassan were in a spousal relationship. The conclusion reached by the Tribunal that it was not satisfied that Mr Hassan had a mutual commitment to a shared life with Ms Doan to the exclusion of all others: CB 726 at [72], was therefore a conclusion reached without a consideration of factors or the “particular circumstances” relevant to the nature of their commitment to each other, and without making a finding in relation thereto: He at [76] per Siopis, Kerr and Rangiah JJ. There was therefore no consideration as to how those factors and circumstances might be relevant when assessing and weighing the evidence “concerning all of the circumstances of the relationship”: Migration Regulations, reg 1.15A(2); He at [76]-[78] per Siopis, Kerr and Rangiah JJ.
It is not sufficient in this case to say that the Tribunal was aware of the existence of the unborn child and addressed it in relation to a different mandatory criteria. The Tribunal was required to separately consider the nature of the commitment that Ms Doan and Mr Hassan had to each other, and the failure to consider the existence of the unborn child was a failure to consider a matter directly material to that mandatory criteria for the grant of the Partner Visa: Migration Regulations, reg 1.15A(3)(d); He at [76]-[78] per Siopis, Kerr and Rangiah JJ.
It follows that ground 1 of the Judicial Review Application is affected by error. In the Court’s view, that error was material. The Court cannot be satisfied that the outcome of the Tribunal Decision would inevitably have been the same had the Tribunal had regard to the existence of the unborn child when assessing the nature of the commitment that Ms Doan and Mr Hassan had to each other. Had the Tribunal done so, and had it therefore weighed that matter in relation to the other mandatory criteria, there is a realistic possibility that the Tribunal Decision may have been different.
In the circumstances, the Court is satisfied that ground 1 of the Judicial Review Application is made out, and that the Tribunal Decision is therefore affected by jurisdictional error.
Ground 2
Ground 2 is as follows:
That the Tribunal failed to have regard to the paramount consideration of the best interests (care, support, welfare and development) of the child.
As set out at [29(a)] above the Tribunal understood, and took into account, when assessing at least one of the mandatory Partner Visa criterion, that there was an unborn child of the relationship between Ms Doan and Mr Hassan.
Ground 2 appears to proceed on a different basis, not related to the unborn child, but rather related to the existence of the child born just over four months after the Partner Visa application was made. Ms Doan now seemingly argues that the Tribunal should have considered, and given weight to, the best interests of the born child simpliciter, or as was suggested by the Minister, possibly in accordance with the Convention on the Rights of the Child (“Convention”).
There are a number of obstacles which stand in the way of Ms Doan’s submission that the Tribunal should have considered, and given weight to, the best interests of the child, either simpliciter or in accordance with the Convention.
The first of those obstacles is that no such submission appears to have been put to the Tribunal. The Tribunal’s function was to respond to the case that Ms Doan advanced: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 (“SGBB”) at [17] per Selway J, and in this case the Tribunal did not err in failing to consider a claim which was not put before it and was not a claim which arose on the materials. As has elsewhere been observed: see EXV17 v Minister for Home Affairs [2018] FCA 1780 at [37] per Derrington J, it must be kept in mind that “on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, …, at some later stage in the process”: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 203 ALR 112; (2003) 78 ALJR 180; (2003) 78 ALD 8 at [1] per Gleeson CJ (dissenting from the majority in the outcome of the case).
In Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235; (2017) 73 AAR 380 (“Kaur”) a Full Court of the Federal Court in considering an appeal concerning a skilled employment visa and the application of the public interest criterion in the Migration Regulations rejected a submission that ratification of the Convention by the Commonwealth of Australia imposed upon the Tribunal an obligation to apply the Convention when considering whether there were compelling circumstances to waive visa requirements. The Full Court in Kaur observed at [22]-[23] and [25] per Dowsett, Pagone and Burley JJ as follows:
22First, the incorrect premise underlying the appellants' arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
23In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions - Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘ … established doctrine’ that obligations under international treaties ‘ … are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law - Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.
25Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration and Citizenship at [27]:
Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
There is nothing to indicate that the obligations arising under the Convention have been enacted into Australian domestic law requiring them to be applied for the purposes of the Migration Act. As was observed by the Full Court of the Federal Court in Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82; (2014) 315 ALR 352; (2014) 145 ALD 273 at [147] per Middleton and Wigney JJ (with whom Pagone J agreed on this issue at [242]) in the absence of an express provision, unenacted international obligations such as those under the Convention are not mandatory considerations attracting judicial review for jurisdictional error.
In Bui v Minister for Immigration & Citizenship [2010] FCA 234; (2010) 114 ALD 235 (“Bui”) the Federal Court considered an application made offshore for a prospective marriage visa where it was said that the Tribunal denied procedural fairness or failed to take into account, as a primary consideration, the best interests of the review applicant’s child when refusing to grant a Partner Visa. The Tribunal had refused the Partner Visa on the basis that it was not satisfied the sponsor and applicant genuinely intend to live together as spouses. In Bui the applicant had contended that the Tribunal had effectively made the welfare of the sponsor’s child an issue in the proceedings as during the Tribunal hearing the Tribunal had inquired about the sponsor's son and was informed that the Partner Visa applicant was very good to him and that her son referred to the Partner Visa applicant as “uncle”, while also buying him various toys, such that a relationship existed between the applicant and the boy enlivening the application of the Convention: Bui at [50] per Cowdroy J. In disposing of this ground of appeal, the Federal Court referred to the finding of the first instance Judge that the “child's best interests” was not one of the primary or secondary considerations prescribed by the particular visa criterion, and at [55]-[56] per Cowdroy J states:
55.The only inquiry to be made turns on the visa and review applicant’s genuine intention to live together as spouses. The best interest of the review applicant’s son was not a relevant consideration in the making of that inquiry.
56.On proper construction, the Minister’s decision is not an “action” that concerns children as contemplated by the Convention. The Court finds that the Convention has no application in the present proceeding.
In the consideration of Partner Visas this Court (and its statutory predecessors) have held that there is no obligation on the part of the Tribunal to consider the best interests of the child when considering the criteria for the grant of a Partner Visa: see for example, in this Court, Mabirou Mounguengue v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 537 at [31] per Judge Ladhams; Singh v Minister for Immigration [2019] FCCA 2796 at [41] per Judge Lucev; Singh v Minister for Immigration and Border Protection [2018] FCCA 3420 at [37] per Judge Dowdy.
In the circumstances of this case the Court is therefore satisfied that the Tribunal was not required to take into account or have regard to the best interests of the child, either simpliciter or pursuant to any Convention obligation. And, unlike ground 1, the best interests of the child born after the Partner Visa application was made is not a matter which can be related to one of the mandatory criteria for the Partner Visa in the manner that the existence of that child, then unborn, could be for the purposes of ground 1.
It follows that ground 2 is not made out and does not establish any error in the Tribunal Decision.
Jurisdictional error otherwise
As observed at [22] above, the Court is cognisant that Ms Doan was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Tribunal.
Fraud on the tribunal?
In this matter the new evidence admitted by the Court, as to which see [21] above, is relevant to what appears to be suggested by Ms Doan as a fraud upon the Tribunal by reason of information, adverse to Ms Doan’s Partner Visa application, allegedly provided by Mr Hassan’s former partner Ms Rahman, and arguably relied upon by the Tribunal in deciding to affirm the Delegate’s Decision to refuse the Partner Visa.
In SZFDE v Minister for Immigration and Citizenship and Another [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64 (“SZFDE”) the appellants’ advisor also claimed to be a registered migration agent when he was not, and his reasons for advising the appellants not to attend the Tribunal hearing were found to be fraudulent: SZFDE at [40]-[42], [45]-[46] and [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In SZFDE the High Court found that by reason of the fraud of the person claiming to be a migration agent, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The High Court further held that this merited the description of “the practice of fraud “on” the Tribunal”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, with the consequence that the Tribunal Decision was regarded as no decision at all, because the jurisdiction remained constructively unexercised: SZFDE at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In SZSXT v Minister for Immigration & Border Protection & Anor [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437 at [51] per Perram, Robertson and Griffiths JJ, the Full Court of the Federal Court summarised the principles with respect to cases involving a third party’s fraud before the Tribunal, as follows:
SZFDE establishes the following principles (omitting case references):
(a)in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” (at [8]);
(b)different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution (at [11]);
(c)“fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” (at [17]);
(d)in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud (at [20]);
(e)another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” (at [22]);
(f)in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative (at [25]-[27]); and
(g)there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time (at [28]). But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised (at [51]-[52]).
It is necessary for an applicant who alleges fraud to demonstrate that the fraud of the third party concerned has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. The Full Court of the Federal Court has observed that the alleged fraud “must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant”: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443; (2008) 245 ALR 50 at [33] per Tamberlin, Finn and Dowsett JJ, citing SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
The notion of “fraud” in a public law context in SZFDE was summarised in dissent in the Full Court of the Federal Court in DUA16– FCAFC at [42]-[47] per Griffiths J as follows:
[42]First, emphasis was placed upon differences concerning the place of fraud in public law, as opposed to equity or common law. As stated at [13], principles of public law concerning impropriety and exercise of statutory powers have not had what the Court described as the ‘red blooded’ species of fraud which engages the common law. In contrast with fraud in private law concerning the creation and protection of personal and proprietary rights in inter partes litigation, the concern in a public law case such as SZFDE was the ‘due administration of the provisions of the Act respecting protection visas and procedures for review by the Tribunal of decisions on visa applications’. That concern with the due administration of the laws of the Commonwealth was identified as having an ‘important constitutional underpinning’ (at [11] and referring, inter alia, to Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [103]- [104]).
[43]Secondly, the Court emphasised that the vitiating effect of fraud is not universal throughout the law and that the notion of ‘fraud unravelling all’ needed some modification in a public law context. The Court stated at [22] that in a public law case, such as that appeal, the only remedy of any real utility was an order which provided the review applicants with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law.
[44]Thirdly, and significantly, the Court emphasised at [28] that it was unnecessary for the purpose of resolving the appeal there ‘to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision … ’. Presumably, this was because the factual and statutory contexts in which the issue could arise are so diverse. As already emphasised, each case necessarily has to be considered and determined by reference to the particular facts and the particular statutory context in which the issue arises.
[45]Fourthly, and related to the previous point, at [8], the Court agreed with Lord Macnaghten’s view in Reddaway v Banham [1896] AC 199 at 221 that ‘fraud is infinite in variety’ and that it is impossible to define the concept exhaustively in advance. As will shortly emerge, however, the Court viewed the ‘dishonest acts and omissions’ or ‘misconduct’ of the kind engaged in by the rogue there as constituting fraud, which subverted or stultified the relevant statutory review process.
[46]Fifthly, a finding of fraud should specify what conduct was fraudulent, how it was fraudulent, and how it was acted upon (at [41]). Such precision is necessary not only to determine whether particular conduct is in fact fraudulent in the relevant sense, but also to determine if, and how, it has subverted or disabled an imperative statutory function.
[47]Sixthly, while the Court expressed agreement with the dissenting view expressed below in the Full Court by French J that there were sound policy reasons why mere bad or negligent conduct or some other mishap by an agent should not vitiate a review proceeding, the Court proceeded on the basis that the conduct of the agent in that case stood apart from such considerations (at [53]). Conduct which involved ‘dishonest acts and omissions’ (at [14]) or involved ‘misconduct’ of the kind demonstrated by the rogue in that case (at [36]), could amount to conduct which had the effect of subverting the relevant review process. The Court said at [51]:
No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.
(Emphasis added)
In Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16 - HCA”) at [35] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, the High Court allowed an appeal against DUA16 - FCAFC, but in so doing expressly endorsed the dissenting approach set out above as “correct”: DUA16 - HCA at [22] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. The High Court also observed that as a ground of judicial review, fraud must affect a particular duty, function or power of the administrative decision maker, and it was not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense: DUA16 - HCA at [18] and [22] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
Ordinarily, in order to constitute fraud, the relevant conduct must be proven to the requisite standard outlined in s 140 of the Evidence Act, which is as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Notwithstanding the caution expressed against treating any provision of the Evidence Act (as part of the uniform evidence legislation) as a codification of common law principles of evidence: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; (1999) 73 ALJR 1274; (1999) 164 ALR 548 at [10] per Gleeson CJ and Hayne J, s 140 of the Evidence Act has been said (in Commonwealth and Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10 at [128] per Gray, Rares and Tracey JJ and Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [28] per Wheelahan J) to be a partial codification or re-statement of what was said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100; CLR at 362 per Dixon J, where it was observed that it is often said that fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty”. It has also been observed that the gravity of the matter: Evidence Act, s 140(2)(c), is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required, the more cogent and clear the evidence needed to establish it: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449; ALJR at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 at [128]-[129] and [137]-[139] per Branson J.
At the Tribunal hearing:
(a)considered the certificate issued by the Delegate under s 376 of the Migration Act dated 8 October 2018 (“October 2018 Certificate”), which replaced two previous certificates under s 375A of the Migration Act: CB 329-331, 354-357 and 718 at [5]-[6]. The Tribunal exercised its discretion under s 376(3) of the Migration Act to put the information the subject of the October 2018 Certificate to Ms Doan under s 359AA of the Migration Act: CB 718 at [5]-[6]; and
(b)also had before it a certificate issued by a delegate of the Minister under s 376 of the Migration Act dated 7 November 2018 (“November 2018 Certificate”): CB 701, as well as confidential information which was not included in the CB as it was provided to the Tribunal on a confidential basis. Whilst the Tribunal did not expressly refer to the November 2018 Certificate, the Tribunal noted it had a great deal of adverse information which had been forwarded to it, and confirmed that it “went through each set of allegations with [Ms Doan]”: CB 718 at [9]. The Tribunal went to some lengths to set out the allegations put to Ms Doan under s 359AA of the Migration Act, and recorded this in the Tribunal Decision: CB 718-719 at [9], 719 at [12] and 719-720 at [16]. The Tribunal also set out Ms Doan’s responses to the allegations in the Tribunal Decision: CB 719 at [10]-[11] and [13]-[15] and 720 at [17].
The Rahman Statutory Declaration and the admissible sentences from the Hassan Statutory Declaration are relevant to some of the adverse information considered in the Tribunal Decision. In particular, the Rahman Statutory Declaration is as follows (transcribed without amendment):
I am writing this declaration to inform that I was the person who sent all the allegations from 15th September 2016 to 22nd November 2018 during Mrs Thi Diem Hand Doan’s Visa applicationprocess.But those allegations were not true. I did that because of my jealousy. That time I was madly love Mustaque Hassan who was my ex partner even though we did not live together anymore at that time. That was why I did not want Mrs Thi’s Application to be successful . I understand my action was wrong and I feel regretful for what I did.
Now I decide to put everything behind and I know that Mrs Thi and Mr Mustaque Hassan still live happily together until now and I do not want to interfere their family mater anymore.Moreover we still keep in touch as friends. I hope this statutory declaration can clear some information that relate to Mrs Thi’s case application. Finally i confirm to withdraw all the allegation which i sent to the Department of immigration and Admistrative Appeals Tribunal relating to Mrs Thi Diem Hang Doan visa case.Should you need any further information please do not hesitate to contact me.
The genuineness of the relationship between Ms Doan and Mr Hassan, and whether Mr Hassan might still have been in a relationship with Ms Rahman, at the date of the Partner Visa application, was considered to be “central” to this matter, the Tribunal observing at CB 718 at [7] as follows:
There are a number of allegations contained on the Department file and received by the Tribunal that Mr Hassan is not in a genuine relationship with Mrs Doan, and in fact continues to be in a relationship with Ms Dolly Rahman. The determination of this issue is central to this matter because the definition of “spouse” in the Act requires that an element to be satisfied at the time of the visa application is whether the parties had a mutual commitment to a shared life to the exclusion of all others.
There is no issue that adverse information received by the Tribunal (both from Ms Rahman and, seemingly, from other sources) was put to Ms Doan by the Tribunal: see [55(b)] above, and CB 718-721 at [7] – [22] generally.
The Tribunal did not ultimately have regard to the various “allegations” made in much of the adverse information provided to it, and specifically in relation to its conclusions at CB 722 at [34] that:
(a)it was not satisfied that Mr Hassan was separated from Ms Rahman at the time of the Partner Visa application; and
(b)Mr Hassan maintained a presence at Ms Rahman’s residence,
it relied on “other documents”: CB 721 at [22].
In arriving at the foregoing conclusions the Tribunal relied, in particular, upon two documents: CB 722 at [34]:
(a)a statement made by Mr Hassan in March 2016 (which the Tribunal was not satisfied was fake); and
(b)a property settlement between Mr Hassan and Ms Rahman (a document prepared by a lawyer and described as being a Part VIII AB Financial Agreement under s 90UD of the Family Law Act 1975 (Cth)): CB 687-700.
At CB 722 at [34] the Tribunal concluded as follows:
On the assist of the statement by Mr Hassan of 4 October 2016, which the Tribunal is not satisfied is a fake, and the property settlement proved by Mrs Doan, the Tribunal is not satisfied that Mr Hassan was separated from Ms Rahman at the time of the visa application, and, at the least, continued to maintain a presence at Ms Rahman’s residence.
The Tribunal returned to these issues when considering the nature of the household for the purposes of reg 1.15A(3)(b) of the Migration Regulations, at CB 724-725 at [55]-[57] where it said that :
55.Mr Hassan said that Ms Rahman told him to leave the Arun Drive property in 2013 after he was diagnosed with psoriasis, and he lived at Hepworth Street from that time until he commenced living with Mrs Doan. I do not accept this is the case given the property settlement, which states he separated from Ms Rahman in 2017 and the statement for income protection in October 2016 in which he refers to “his wife” in a context where this could only be Ms Rahman.
56.It is not intended to canvass again the adverse material addressed above. Having considered the material put to Mrs Doan and to Mr Hassan and the findings above, I am not satisfied that at the time of the application Mr Hassan was solely living with Mrs Doan, although it is acknowledged they had a joint lease and his bank account statements were addressed to the property they rented. He is also placed by virtue of the statement he made and the property settlement with Ms Rahman at the property at Arun Drive at this time.
57.In regard to the living arrangements of the parties, I find Mrs Doan was living at the Labrador address and that Mr Hassan was maintaining a presence at both the Labrador address and the Arun Drive address.
In reaching the above conclusions the Tribunal, once again, seemingly did not have regard to any of the adverse information provided to it by Ms Rahman. It might be inferred that the Tribunal had doubts about the veracity of the adverse information provided by Ms Rahman, and preferred to base its conclusions on objectively verifiable documents.
It follows that there was no subversion or stultification of the Tribunal’s statutory functions or processes. The Tribunal reached the conclusions that it did in relation to the relationship between Mr Hassan and Ms Rahman on the basis of information other than the adverse information provided by Ms Rahman. The adverse information provided by Ms Rahman did not therefore have any effect on the due administration of the relevant provision of the Migration Act by the Tribunal, or its processes of review, in relation to the Partner Visa application: SZFDE at [51]-[52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ; SZSXT at [51(g)] per Perram, Robertson and Griffiths JJ; DUA16 – FCAFC at [42] per Griffiths J. Put differently, even if the information originally provided by Ms Rahman to the Tribunal was, or was intended to be, fraudulent, it was not acted upon by the Tribunal: DUA16 – FCFCA at [46] per Griffiths J.
The Court is therefore not satisfied that any adverse information provided to the Tribunal by Ms Rahman resulted in there being a fraud on the Tribunal, and therefore there was no error in the Tribunal Decision on that account.
Otherwise
Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Tribunal Decision.
CONCLUSION AND ORDER
The Court has concluded that:
(a)ground 1 of the Judicial Review Application has been made out and establishes material jurisdictional error in the Tribunal Decision;
(b)ground 2 of the Judicial Review Application has not been made out and does not establish jurisdictional error in the Tribunal Decision; and
(c)no jurisdictional error is otherwise evident in the Tribunal Decision.
It follows from the conclusion in [67(a)] above that writs of certiorari and mandamus ought to issue in this matter, and there will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 October 2024
5
69
5