Gordon v Minister for Immigration - [2011] FMCA 818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GORDON v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 818

MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in consideration of a claim of domestic violence – extent of Tribunal’s obligations under s.359A of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.65, 348, 357A, 359A, 359, 360, 424A
Migration Regulations 1994 (Cth), reg.1.15A

Keo v Minister for Immigration and Citizenship and Another (2008) 222 FLR 53; [2008] FMCA 1502
Khan v Minister for Immigration and Citizenship and Another (2011) 192 FCR 173; [2011] FCAFC 21
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319
MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559
NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
SZASX v Minister for Immigration [2004] FMCA 680
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGBU v Minister for Immigration & Anor [2006] FMCA 1192
SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106
SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198
SZLGW & Ors v Minister for Immigration & Anor [2008] FMCA 383
SZLJF v Minister for Immigration and Citizenship [2009] FCA 158
SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
SZMKG v Minister for Immigration and Citizenship and Another (2009) 177 FCR 555; [2009] FCAFC 99
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZNBE v Minister for Immigration and Citizenship and Another (2009) 112 ALD 114; [2009] FCA 1198
SZNLK v Minister for Immigration & Anor [2009] FMCA 823
SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388

Applicant:

MERCY AKU WOTORCHI GORDON

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 439 of 2011

Judgment of:

Barnes FM

Hearing date:

17 August 2011

Date of Last Submissions:

5 September 2011

Delivered at:

Sydney

Delivered on:

20 October 2011

REPRESENTATION

Solicitors for the Applicant:

Denning Lawyers

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 439 of 2011

MERCY AKU WOTORCHI GORDON

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The visa application

This is an application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant, Ms Gordon, a Partner (Temporary) (Class UK) Visa.
The Tribunal recorded that Ms Gordon came to Australia as the holder of a student visa in September 2004. In June 2005 she applied for a Partner visa.
In a statutory declaration accompanying her application the applicant stated that she had married her sponsor “in April 2005”. In his statutory declaration of 15 June 2005 the sponsor stated that they married on 17 March 2005. In his subsequent statutory declaration of 24 August 2005 the sponsor corrected the date of marriage to 17 April 2005.
On 24 May 2006 the sponsor wrote to the Department seeking that the applicant’s visa application not be processed due to late lodgement and the fact that he had also sponsored his first wife. However, after this letter was drawn to the attention of the applicant’s adviser, on 8 June 2006 the sponsor advised the Department that he did not intend to withdraw his support for the application, but rather sought “an expedited outcome”.
It appears from the incomplete documentation in the Court Book that the Department subsequently sought further information from the adviser about the status of the application in response to telephone calls from the sponsor.
On 26 April 2007 the applicant’s migration agent sent the Department a letter said to be from the applicant containing a handwritten date of 20 April 2007 stating that she wished to withdraw her application.
On 14 May 2007 the Department wrote to the applicant’s migration agent confirming withdrawal of the visa application and advising that processing of the application had stopped and that the application would not be further considered. Also contained in the material in the Court Book from the Departmental file is a handwritten letter from the sponsor dated 19 July 2007 advising that he had “instructed” the applicant to withdraw her application because their relationship as husband and wife had ended on 24 March 2006. He made allegations about the applicant’s involvement with another man.
However on 2 January 2008 a new migration agent acting for the applicant wrote to the Department claiming that the applicant had been told by the Department on 12 December 2007 that she had withdrawn her application. In a statutory declaration of 31 December 2007 Ms Gordon claimed that she had not at any time withdrawn her application. She denied ever sending a letter to withdraw her application. She claimed that her husband had forged her signature because he wanted to withdraw the application. Her agent sought that the application be reinstated on the basis that it had not been validly withdrawn. On 30 April 2008 the Department confirmed that the application was “no longer deemed withdrawn”.
On 1 May 2008 the Department wrote to Ms Gordon’s migration agent seeking evidence in relation to the genuineness of the relationship and also putting to the applicant for comment the fact that information given to the Department indicated that her relationship with the sponsor may have been contrived only for immigration purposes. In particular, it put to the applicant the fact that at an interview on 21 January 2008 the sponsor had stated that the relationship between himself and the applicant was not genuine, that the applicant was only using him to leave Ghana and that she was in love with another man with whom she had been staying. It also put to her the sponsor’s written statement of July 2007 to the same effect and her statement of 31 December 2007 that her sponsor had forged her signature to withdraw her application.
The agent responded to this information by letter of 13 June 2008 enclosing supporting documentation and claiming that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them was genuine and continuing. It was submitted that while the sponsor may not be “happy”, there was information indicating that the relationship was genuine and that Ms Gordon and her sponsor continued to live together. Ms Gordon provided a further statutory declaration dated

27 May 2008 claiming that her relationship with her husband was genuine and continuing. She provided two supporting statutory declarations from friends.
However on 27 June 2008 the Department received a letter from the sponsor dated 26 June 2008 stating that he was not in a relationship of husband and wife with Ms Gordon, that his relationship with her had broken down in August 2006 when she left their home to live with another man for 21 days. He claimed he had refused to sign a declaration to say that the applicant was his spouse that had been prepared by her “lawyer”. A copy of an unsigned statutory declaration stating that they still lived together was attached.
On 29 August 2008 the sponsor provided a statutory declaration to the Department stating that he and the applicant had “resolved peacefully” the “breakdown of their relationship”, “sorted out” their differences and that they were “now” living together as husband and wife.
On 4 March 2009 the Department invited the applicant and the sponsor to attend an interview on 17 March 2009. The sponsor did not attend the interview. Ms Gordon told the delegate she had not told the sponsor about the interview, as “she wanted to tell her side of the relationship”. Another interview was arranged for a date that Ms Gordon organised as suitable for the sponsor. The sponsor did not attend that interview. Ms Gordon told the delegate that the sponsor did not wish to sponsor her anymore. However she chose not to withdraw her application.
On 7 April 2009 the delegate refused the visa application on the basis that she was not satisfied that Ms Gordon was the spouse of the sponsor as defined in reg.1.15A of the Migration Regulations and hence found that she did not meet the criteria for the visa. The delegate was of the view that Ms Gordon was using her relationship with the sponsor to gain permanent residence.

The Tribunal Review

The applicant sought review by application filed with the Tribunal on 6 May 2009. According to a Tribunal case note, a person claiming to be the applicant’s sponsor telephoned the Tribunal on 16 November 2009 and 14 January 2010 advising that the applicant was pregnant to another man. On 11 December 2009 the Tribunal received a request from Ms Gordon that her son born on 25 November 2009 “be included on [her] application in order to get a Medicare card for him”. She provided a birth certificate for the child in which a person other than the sponsor was named as the father of the child. The Tribunal advised Ms Gordon that as the child was born after the primary decision was made he was unable to be included in the review application. No other written information was provided to the Tribunal by the applicant.
On 21 January 2010 the applicant’s sponsor wrote a letter to the Tribunal attaching a detailed statutory declaration dated 23 January 2010 in which he claimed, among other things, that his relationship with Ms Gordon had ended in October 2006 although he had allowed her to stay in his home until mid-2009. He claimed that she fell pregnant to another man with whom she was in a relationship and that she had finally left the home they shared in June 2009.
On 27 January 2011 the Tribunal wrote to the applicant inviting her to attend a Tribunal hearing on 17 February 2011. The applicant attended the Tribunal hearing.

The Tribunal decision

In its reasons for decision the Tribunal recorded that there was a two-stage process for partner visas and that an applicant must hold a provisional visa, Class UK Visa, in order to be granted a permanent visa (a Partner (Residence) (Class BS) Visa). The Tribunal set out the criteria for a Subclass 820 visa as this was the only subclass in Class UK in respect of which any claims had been advanced. In particular it referred to subcl.820.221(2) which required that at the time of application the visa applicant be the spouse (as defined in reg.1.15A of the Regulations) of an Australian citizen, permanent resident or eligible New Zealand citizen and be sponsored by that spouse. Subclass 821.221 relevantly required that at the time of the decision the applicant continue to meet such a requirement except where the sponsor had died or the relationship had ceased and either relevant family violence (formerly domestic violence) had occurred or where the visa applicant and the sponsor had legal obligations to a child (subcl.820.221(1) of Schedule 2 to the Regulations).
The Tribunal referred to the evidence provided in support of the application for a spouse visa and the history of the processing of the application, including the sponsor’s request for withdrawal of the application, the fact that in April 2007 he informed the Department that he wished to withdraw the sponsorship because the relationship was no longer ongoing, the applicant’s letter to the Department of April 2007 withdrawing her application and the sponsor’s confirmation that the relationship had ended in March 2006.
The Tribunal also referred to the fact that the applicant subsequently informed the Department that she had not signed the withdrawal request and that as the delegate was not satisfied she had withdrawn her application, the application was reinstated.
The Tribunal described the events that occurred through the further processing of the application, including the applicant’s submissions in mid-2008, the sponsor’s notification in June 2008 that his relationship with the applicant had broken down in August 2006 when his wife left home for a few weeks to live with another man and that he refused to sign a declaration about the relationship prepared by the applicant’s lawyer. It also referred to his advice in July 2008 that the relationship was not ongoing and his declaration of August 2008 that they had sorted out their differences and were living together as husband and wife.
The Tribunal recorded that the sponsor did not attend the Departmental interview and that the delegate had decided to refuse to grant the visa.
The Tribunal also recorded that after the applicant sought review the sponsor informed it that the applicant was pregnant by another man, that the applicant had provided a copy of the child’s birth certificate which indicated that her son was born in November 2009 and that the father of the child was a person by a name other than that of the sponsor.
The Tribunal referred to the correspondence received from the sponsor in January 2010 in which the sponsor stated that the relationship with the applicant had ended in October 2006, that “he forgave her and gave her another chance” but that in April 2009 “her fiancé came from overseas” and that “she was seeing him regularly and became pregnant” and moved out of the house in June 2009.
The Tribunal recorded the following about the Tribunal hearing:
The applicant appeared before the Tribunal on 17 February 2011 to give evidence and present arguments. The applicant was represented in relation to the review by a registered migration agent. The oral evidence before the Tribunal is summarised below.
The applicant confirmed that she was sponsored by Mr [E]. She said that her relationship with the sponsor ceased in June 2009 and they had been separated since then. The Tribunal explained to the applicant the requirements of cl.820.221 and the exceptions in cl.820.221(3). The applicant said that there was one instance of domestic violence and she took the case to court but she did not obtain the final AVO. The Tribunal noted that since she did not present evidence of domestic violence in accordance with the statutory requirements, it could not consider the claim. The applicant said that at the time when the decision was made, she and the sponsor were still in a relationship. They had been in a relationship for six or seven years and they were living together as husband and wife and her husband did not treat her well. She said that she was now in another relationship but her partner was not an Australian citizen or permanent resident.
The applicant stated that she has been living in Australia for a number of years and she has been working and she has done nothing wrong. If she does not get the visa, she will have nothing to go back to.
In its findings and reasons the Tribunal recorded that when the applicant applied for the visa she had been sponsored by Mr E and claimed that he was her spouse. The Tribunal continued:
The applicant informed the Tribunal in her oral evidence that her relationship with Mr [E] had ceased in 2009. The Tribunal finds that the applicant no longer continues to meet the requirements in cl.820.211 and she does not meet cl.820.221(1)(a).
There is no evidence before the Tribunal that the sponsoring spouse had died and the Tribunal is not satisfied that the applicant meets cl.820.221(2). The applicant informed the Tribunal that there was an instance of domestic violence which she referred to court, but she has not provided any evidence of domestic violence in accordance with the requirements of Division 1.5. The Tribunal is not satisfied that the applicant or a dependent child had suffered domestic violence committed by the sponsoring spouse. The Tribunal is not satisfied that the applicant meets cl.820.221(3)(b)(i).
In addition, the Tribunal referred to the birth certificate for the applicant’s child which indicated that the sponsoring spouse was not the father of the child. It found no evidence that the applicant had custody or joint custody of or access to or a residence or contact order relating to at least one child in respect of whom the sponsoring spouse had been granted joint custody or access or had a residence or contact order or had any obligation for maintenance. The Tribunal was not satisfied that the applicant met the requirements of cl.820.221(3)(b)(ii) which relates to circumstances where both the visa applicant and the sponsor have such obligations to a particular child. The Tribunal was not satisfied that the applicant met the criterion in cl.820.221.
The Tribunal referred to the applicant’s claims at the hearing about the length of time she had spent in Australia, the duration of her marriage with the sponsor and that she would have nowhere to go if her visa was not granted. It acknowledged these submissions but found that it had “no discretion with respect to these matters” as the applicant did not satisfy the requirements of cl.820.221. The Tribunal affirmed the decision not to grant her a Partner (Temporary) (Class UK) visa.

These proceedings

The applicant sought review by application filed in this court on 11 March 2011. She now relies on a further further amended application filed with leave of the court on 17 August 2011 which for convenience I will refer to as the application. There are five grounds in the application.
There is some overlap between a number of the grounds which in essence take issue with the Tribunal’s approach to the applicant’s claim at the hearing that there was one instance of domestic violence. Essentially, it was submitted that when the Tribunal was considering the time of decision criteria it erred in the manner in which it dealt with this “claim”.
These grounds relate to the criteria in subcl.820.221(3) which relevantly provided:
An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Division 1.5 of the Migration Regulations specifies the requirements applicable in circumstances where reliance is placed on a contention of domestic or family violence. It requires an applicant to provide certain written documentation. There is no suggestion that the applicant put before the Tribunal any of the documentation referred to in that Division or, indeed, any other documentation in relation to any claim of domestic violence.
Further, insofar as these grounds rely on what the applicant said to the Tribunal at the Tribunal hearing, she has not provided any evidence of what she said to the Tribunal. Nor has she provided any evidence of what she might have demonstrated in terms of establishing a claim to have suffered domestic violence within the meaning of Division 1.5 of the regulations.
The only material before the court is the “summary” of the applicant’s oral evidence at the hearing in the Tribunal’s reasons for decision. The only part of that summary that relates to this issue indicates that after the applicant told the Tribunal that her relationship with the sponsor ceased in June 2009 and they had been separated since then, the Tribunal explained to her the requirements of cl.820.221 and the exceptions in subcl.820.221(3). The Tribunal then recorded:
The applicant said that there was one instance of domestic violence and she took the case to court but she did not obtain the final AVO. The Tribunal noted that since she did not present evidence of domestic violence in accordance with the statutory requirements, it could not consider the claim.
In its findings and reasons the Tribunal addressed the applicant’s claim in this respect as follows:
The applicant informed the Tribunal that there was an instance of domestic violence which she referred to court, but she has not provided any evidence of domestic violence in accordance with the requirements of Division 1.5. The Tribunal is not satisfied that the applicant or a dependent child had suffered domestic violence committed by the sponsoring spouse. The Tribunal is not satisfied that the applicant meets cl.820.221(3)(b)(i).

Domestic violence claim

The first ground in the application is that the Tribunal erred in holding that the applicant did not satisfy the requirement of cl.820.221. The particulars to this ground are:
The Tribunal erred in law when it refused to consider the applicant’s claim (evidence) of domestic violence. When under clause 820.221(3)(b)(i) the Tribunal was bound to consider the evidence of domestic violence to be able to reach a state of satisfaction or non-satisfaction whether the applicant meets cl.820.221.
Contrary to the applicant’s contention, the Tribunal did not refuse to consider her “claim (evidence) of domestic violence”. Notwithstanding the manner in which it summarised what was said at the Tribunal hearing, in its findings and reasons the Tribunal had regard to the fact that the applicant said at the Tribunal hearing that there was an instance of domestic violence which she had referred to a court. It found however that she had not provided any evidence of domestic violence in accordance with the requirements of Division 1.5 of the Regulations. In other words, the Tribunal considered the evidence that was before it but found that it was not satisfied on this evidence that the applicant or a dependent child had suffered domestic violence committed by the sponsoring spouse in the sense referred to in the Migration Act and Regulations (in particular in subcl.820.220(3)(b)(i) of Schedule 2 to the Regulations).
Reading the Tribunal reasons for decision as a whole and with an eye not “keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 at [30] – [31]) it is clear that when the Tribunal referred to “domestic violence” it was referring to such domestic violence that it was required to have regard to in accordance with the requirements of Division 1.5 of the Regulations. Insofar as it may be said that the applicant made some general non-specific claim of an incident of domestic violence, it is not in dispute that she did not provide any evidence in the form required by Division 1.5 of the Regulations. The Tribunal considered such claim as she made in addressing whether it was satisfied that she met cl.820.221(3)(b)(i) of Schedule 2 to the Migration Regulations. It has not been established on the evidence before the court that the applicant made a claim at the Tribunal hearing to have suffered domestic violence within the meaning of Division 1.5 of the Regulations, that she could have made such claim or that she could make such a claim in the future. Ground one is not made out.

Section 65 of the Migration Act

The second ground is that the Tribunal failed to comply with s.65 of the Migration Act. The particulars are:
The Tribunal breached S.65 of the Act when it held that it could not consider the applicant’s evidence of having suffered domestic violence because she did not present evidence of domestic violence in accordance with the statutory requirements. When under S.65 of the Act, the Tribunal was bound to consider the evidence.
The Tribunal did not hold that it could not consider the applicant’s evidence of having suffered domestic violence. While in describing what occurred at the Tribunal hearing the Tribunal referred to having noted that it could not consider the claim, this was in the context of summarising what occurred at the hearing. There is no transcript of the hearing before the court. The reference to “consider” must be seen in the context in which it occurred, which was the Tribunal recording that it noted that since the applicant “did not present evidence of domestic violence in accordance with the statutory requirements” (which is clearly a reference to Division 1.5 of the Migration Regulations) it could not “consider”, in the sense of determine, whether her claim met any of those statutory requirements. This was, in any event, only a summary of what occurred at the Tribunal hearing. It is clear from the Tribunal findings and reasons, that it did in fact consider or address the applicant’s claim that there was an instance of domestic violence which she referred to court. It did not fail to have regard to a relevant consideration, in the sense of an integer of the applicant’s claims. The Tribunal had regard however to the fact that she had not provided any evidence of domestic violence in accordance with the requirements of Division 1.5. On that basis the Tribunal found that it was “not satisfied that [Ms Gordon] or a dependent child had suffered domestic violence committed by the sponsoring spouse” and hence it was not satisfied that the applicant met cl.820.221(3)(b)(i) of the Regulations.
Section 65 of the Act relevantly requires the Tribunal to grant a visa if the relevant criteria have been satisfied and refuse the visa if that is not the case. That is precisely what the Tribunal did. It found that it was not satisfied that the applicant met the criteria for the visa and accordingly refused to grant the visa in accordance with s.65(1)(b) of the Act. While it is the case that notions of satisfaction and non-satisfaction imply consideration of what is in issue, in this case the Tribunal did consider and decide whether or not it was satisfied that the applicant met the applicable criteria for the grant of the visa for which she had applied. It has not been established that it failed to fulfil its duty under s.65 of the Act.
Nor has it been established that the Tribunal failed to consider the applicable criteria in Part 820 of Schedule 2 to the Migration Regulations in deciding whether or not to grant the visa. When the reasons are read in the manner referred to in Wu Shan Liang, it is apparent that all that the Tribunal was doing when it used the word “consider” in relation to what occurred at the hearing was describing by way of summary what occurred at the hearing, but that when it went on to the findings and reasons part of its decision it addressed, and in that sense considered, the claim of domestic violence insofar as such a claim was made by the applicant and the evidence (and in this case the absence of evidence) in support of that claim. On the basis of this consideration the Tribunal then considered whether the applicant met the relevant applicable criterion. Ground two is not made out.

Section 359A of the Migration Act

The third ground in the application is that the Tribunal breached s.359A of the Act. It emerged in the hearing that ground three, as formulated in an earlier further amended application, did not clearly reflect the basis on which the applicant wished to assert that there had been a breach of s.359A of the Act. Leave was given to the applicant to file a further further amended application in order to ensure that the precise basis for the claim could be addressed. The parties were also given leave to make post-hearing submissions.
The particulars to this ground are as follows:
a. The Tribunal failed to invite the applicant in the way that the Tribunal considers appropriate to provide evidence of domestic violence in accordance with the statutory requirements. When under S.359A, the Tribunal must 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.
b. The Tribunal had a duty to invite the applicant to provide evidence of Domestic Violence in accordance with Division 1.5 of the Migration Regulations.
c. The Tribunal failed to inform the applicant of any adverse information it had received from her former husband or spouse, that their relationship was no longer continuing. When under s.359A the Tribunal must 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.
Dealing first with the domestic violence issues referred to in particulars (a) and (b) to this ground, the Tribunal was not required under s.359A of the Act to invite the applicant to give evidence in accordance with Division 1.5 of the Regulations to support the claim that she had suffered domestic violence. Section 359A of the Act requires the Tribunal to give clear particulars of information to the applicant which would be the reason or a part of the reason for affirming the decision under review. The concept of “information” for the purposes of s.359A of the Act (or its equivalent in s.424A of the Act) has been considered in a number of authorities. This concept refers to positive adverse information that undermines the factual claims made by an applicant (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17] – [19] and Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 at [21] – [23].) The Tribunal is under no obligation to write to the applicant to tell her what the legal defects in her application might be or how she might overcome such defects or make out her case (see SZASX v Minister for Immigration [2004] FMCA 680; SZGBU v Minister for Immigration & Anor [2006] FMCA 1192 upheld on appeal in SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488 and SZLGW & Ors v Minister for Immigration & Anor [2008] FMCA 383 at [18]). Nor is the Tribunal under an obligation to put to the applicant its thought processes or provisional reasoning.
As stated in SZBYR (at [18]) “information” does not extend to gaps in the evidence presented by an applicant:
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Section 359A does not oblige the Tribunal to invite the applicant to provide evidence of domestic violence in accordance with Division 1.5, notwithstanding that the absence of such evidence was a reason why it concluded that the applicant did not meet the applicable criteria.
I note that the Tribunal had invited the applicant (who had the assistance of a solicitor as her migration agent) to provide material or written arguments to the Tribunal on 7 May 2009. The Tribunal was under a duty to invite the applicant to attend a hearing to give evidence and present arguments relating to issues arising in relation to the decision under review (see s.360). This is what the Tribunal did. In its hearing invitation of 27 January 2011 it repeated the invitation to her to provide new or additional information.
As indicated, the only evidence of what occurred in the hearing is the Tribunal summary in its reasons for decision. It is apparent from that summary that the Tribunal advised the applicant of the applicable criteria and the exceptions in cl.820.221(3) and also that she had not presented any evidence of domestic violence in accordance with the statutory requirements. Importantly, there is nothing in the material before the court to suggest that the applicant sought any opportunity to provide such evidence to the Tribunal.
It is the case that the Tribunal has the power, if it considers necessary or desirable, to invite an applicant under s.359(2) of the Act to provide additional information. However this provision is not mandatory and the Tribunal’s failure to exercise its power in that respect does not establish a breach of either ss.359 or 359A of the Act, insofar as that is what is intended to be contended by the applicant in particulars (a) and (b) to ground three of the application. These particulars do not establish jurisdictional error.
The third particular to ground three is the additional particular which asserts that the Tribunal failed to comply with s.359A of the Act because it failed to inform the applicant of any adverse information it had received from her former husband that their relationship was no longer continuing.
Notwithstanding that particular 3(c) as pleaded refers only to adverse information the Tribunal received from the applicant’s former husband or spouse, in oral submissions the solicitor for the applicant also referred to the withdrawal letter the sponsor provided to the delegate dated 19 July 2007. The Tribunal referred in its account of the claims and evidence before it to some of the allegations made to the Department by the applicant’s sponsor. This letter was not directly referred to, although the Tribunal did record that on 1 May 2008 the delegate sought the applicant’s comment on adverse information, including the fact that the sponsor had informed the Department that the applicant was using him to gain permanent residence and that she had a relationship with another person (which were claims made by the sponsor in that letter).
It is clear from the Tribunal reasons for decision (see SZLFX) that the Tribunal did not rely on any of the material that the husband provided in deciding that the relationship was no longer continuing. In the findings and reasons part of its decision the Tribunal did not refer to this or to any of the other information from the sponsor. Rather, it found that on the basis of the applicant’s own evidence at the Tribunal hearing that her relationship with her sponsor ceased in June 2009. Insofar as regard is had to the Tribunal decision, the information that the sponsor had provided to the Department addressing the genuineness of the relationship as at July 2007 cannot be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review, as its findings were in no sense based on events prior to June 2009 (including the letters from the sponsor) but rather on the applicant’s evidence that her relationship with her sponsor ceased in June 2009.
Further while it is the case that the husband communicated with the Department and also rang the Tribunal in December 2009 and January 2010 and wrote to the Tribunal in January 2010 in relation to the end of their relationship and the birth of a child to another man, it is apparent from the Tribunal reasons for decision that it reached its decision about the end of the relationship entirely on the basis of the applicant’s own evidence at the hearing that “her relationship with the sponsor ceased in June 2009”.
Before the applicant attended the Tribunal hearing she had provided material to the Tribunal to indicate she had had a baby to another man. At the hearing she told the Tribunal that she was no longer in a relationship with the sponsor. The material from the sponsor provided to the delegate, the Tribunal file notes referring to Tribunal telephone conversations with the sponsor and the letter to the Tribunal from the sponsor can only have been relevant to the question of whether the applicant was any longer in a relationship with the sponsor. However, the Tribunal proceeded on the basis of the applicant’s own evidence in this respect at the hearing.
The relevance of the Tribunal’s reasons for decision to the scope of s.359A(1) of the Act has to be seen in light of the views of the High Court in SZLFX in relation to s.424A of the Act, the equivalent provision which applies to reviews by the Refugee Review Tribunal.
In SZLFX, as in this case, the Tribunal had obtained information from a third party. The applicant was not given notice of that information. The information was not referred to in the Tribunal’s decision.

As here, there was no express disavowal of reliance on that information (cf SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721). The High Court referred with approval (at [21]) to the view expressed in SZBYR at [15] that s.424A “does not require notice to be given of every matter the Tribunal might think relevant to the decision under review” (but only “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”). The Court was of the view that the issue should not be approached by considering whether information “could or might undermine the credibility” of an applicant (at [22]).
As the High Court stated at [24] – [26] in relation to s.424A of the Act:
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s424A depends on the RRTs “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
The RRT’s reasons show that what counted against the [applicant] were internal inconsistencies in his evidence. The RRT disbelieved the [applicant’s] evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the [visa applicant] cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him. (emphasis added, footnotes excluded)

SZLFX has been followed in the Federal Court in decisions on appeal from this court (see for example SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 at [99]).
Relevantly, in SZNBE v Minister for Immigration and Citizenship and Another (2009) 112 ALD 114; [2009] FCA 1198 McKerracher J considered circumstances in which the Tribunal received information through a written statement in the Department’s file from a third party (a travel agent reporting on the circumstances in which a protection visa applicant obtained a visa). The applicant in SZNBE contended that this information was potentially adverse and clearly capable of undermining the applicant’s claims and had to be put to the applicant under s.424A of the Act. The Tribunal in SZNBE had summarised this information in its reasons but had not used it adversely in its findings and reasons. Again, as in this case, the Tribunal had not expressly disavowed reliance on the information in question (cf SZLPJ at [13] – [16]).
McKerracher J canvassed authorities prior to SZLFX in finding (at [32] – [33]) that consistent with SZBYR at [17] the obligation under s.424A(1) (and the same may be said for s.359A(1)) “turns on the Tribunal reaching a preliminary view of some sort” because the language of the section “emphasises the need for the Tribunal to consider that the impugned information would be the reason or part of the reason for affirming a decision under review”. His Honour continued at [33] – [35] that (as stated in SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198 the test:
…is not based upon whether the material in question suggests a particular decision. The test depends upon the Tribunal's "consideration"’.
This process then requires the Tribunal to consider the question in advance of its ultimate decision, considering the information upon which it would act should it decide to affirm the relevant decision.
It is not the role of the Court to substitute its consideration for the consideration to be undertaken by the Tribunal. The obligation of the Tribunal is an obligation which occurs at a point in time anterior to the final decision process.
His Honour then expressed the view (consistent with earlier cases such as SZLPJ and SZLJF) that it was relevant to have regard to the Tribunal’s state of mind when delivering its reasons as to whether the Tribunal considered the impugned information would be part of its reasons for affirming the decision under review and that such a state of mind may be sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time, notwithstanding the absence of an express disavowal of reliance on such information (at [36]).
In SZNBE notwithstanding the absence of any express disavowal of reliance on the information in question, his Honour accepted that on a fair reading of the Tribunal’s decision record the Tribunal did not consider the impugned information “would” be part of its reasons for affirming the decision under review (at [38]), referring to SZLFX in finding that as in that case, the Tribunal “disbelieved the applicant’s claims for other reasons” and that “The only properly available inference, therefore, was that the Tribunal did not consider the [information in question] to be the reason or part of the reason for affirming the decision under review (SZLFX at [26])” (at [39]).
Importantly, his Honour rejected the proposition that the obligation under s.424A was “enlivened upon information being ‘potentially’ adverse to an applicant’s claims or having the capacity to be adverse” (at [40]).
The applicant submitted that the sponsor’s letters to the Department and to the Tribunal contained adverse information that undermined the application for review as they were evidence that her relationship with the sponsor was not continuing, that s.359A(1)(a) was engaged when the Tribunal received this information and that therefore it was under an obligation to give notice to the applicant.
However the Tribunal’s obligation under s.359A(1) does not necessarily “arise” immediately upon receipt of any potentially adverse information. As stated in SZLFX at [24] (and see SZKLG) in relation to s.424A, a provision such as s.359A “depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review”.
Further, while the obligation under s.359A arises prior to the time of decision (at the point of its opinion or “consideration” that certain information would be the reason or part of the reason for affirming the decision under review), the Tribunal’s state of mind as declared when delivering the reasons may be sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time (see SZLPJ at [16] and also see MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319, SZKLG, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99, SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 and SZLJF v Minister for Immigration and Citizenship [2009] FCA 158).
As Bromberg J stated in MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559 at [36] (albeit in relation to ss.424A(1) and 424AA):
Given the largely subjective nature of the pre-condition for the provision becoming operative (found in the phrase “that the Tribunal considers”), it is obviously important to look at what the Tribunal said.
In this case, despite the absence of an express disavowal of reliance on the information from the sponsor, there is no evidence or necessary inference that the Tribunal considered or held any opinion about the file note within s.359A(1) of the Act. Based on the applicant’s evidence at the hearing, the Tribunal did not accept that there was a spousal relationship at the time of decision. Once this evidence was given by the applicant there was no issue about the genuineness of the relationship, as it had been confirmed by the applicant that the relationship was at an end. Hence it cannot be inferred that the material was of relevance to the question the Tribunal was required to determine such as to bring it within s.359A(1) of the Act. The only proper inference to be drawn is that the Tribunal did not consider the contents of the letters or telephone calls from the sponsor to be the reason or part of the reason for affirming the decision under review.
It is important to bear in mind that, as the High Court emphasised in SZLFX it is not a question of what “might” be the reason or what “could” be the reason, but rather what “would” be the reason or part of the reason for the decision. The fact that the information was potentially adverse, in that it could or might undermine the credibility of the applicant who was seeking a spouse visa on the basis of her relationship with the sponsor, does not of itself mean that the Tribunal had to put such information to the applicant prior to the hearing.
It is open to a Tribunal to give consideration to whether particular information would be part of the reasons for decision at any time prior to its ultimate decision. In this case there is no necessary inference that the Tribunal considered or had any opinion about the sponsor’s evidence prior to the hearing. At the hearing the applicant told the Tribunal her relationship with the sponsor ceased in 2009. On her own evidence she did not meet the criterion that she be the spouse of the sponsor at the time of decision. The oral evidence from the applicant was the reason given by the Tribunal for its finding that she no longer continued to meet the requirements in cl.820.211 and did not meet cl.820.221(1)(a) of the Schedule 2 to the Migration Regulations.

In these circumstances it was not obliged to put information to the same effect to her for comment under s.359A of the Act.
Insofar as the applicant submitted that s.359A was necessarily invoked prior to the Tribunal being informed by her at the Tribunal hearing that there was no longer a genuine, continuing relationship, there is no evidence or necessary inference that the Tribunal member “considered” the impugned information at any time prior to the hearing.
The fact that the Tribunal referred to some of the information from the sponsor on the Departmental file and provided to it by the sponsor in its account of the claims and evidence does not have the consequence that it should be inferred that the Tribunal “considered” it “would be” part of the reason for decision (see SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345 at [50]). This is particularly so in circumstances where at the hearing the applicant told the Tribunal that the relationship had ceased and its decision in this respect was clearly based on the applicant’s statement that her relationship with the sponsor ceased in 2009 (cf Khan v Minister for Immigration and Citizenship and Another (2011) 192 FCR 173; [2011] FCAFC 21 at [34] and [82]).
Based on the approach in SZLFX, it is for the court to draw an inference based on all the material before it as to whether the Tribunal considered that the information “would” be the reason or part of the reason for affirming the decision under review. Although in the present case there is some reference to the material in question in the claims and evidence part of the written statement of the Tribunal’s reasons and no express disavowal of reliance on the material by the Tribunal, having regard in particular to the findings and reasons part of the Tribunal decision and the matters taken into account, this is not, in all the circumstances, such as to lead to an inference that the Tribunal, at a point in time anterior to its decision, considered that the information from the sponsor would be “part of the reason” for affirming the decision under review (see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 per Sundberg J at [24].)
The basis for the Tribunal’s finding was information given by the applicant herself that she was not in a relationship with the sponsor from June 2009. The alleged information from her sponsor did not have dispository relevance or significance to the issues (for s.360 purposes) the Tribunal needed to decide or in relation to its satisfaction or lack of satisfaction as to whether the applicant met the criteria for the class of visa for which she had applied. As stated in SZLFX at [26], such information would not in such circumstances be “materially adverse”. Insofar as the “dob-ins” by the sponsor could go to the applicant’s credibility, this was in fact not in issue.
Ground three is not made out.

Section 308 of the Migration Act

Ground four is that the Tribunal failed to review the decision under s.348 of the Migration Act. The particulars are that:
The Tribunal was required to consider all the evidence in order to review the decision. The Tribunal having stated that it did not consider the applicant’s evidence of domestic violence failed to review the decision.
This ground is not made out for the reasons that ground two was not made out. Section 348 of the Act compels the Tribunal to make a decision in circumstances where an application has been “properly made” (see Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 at [47] and Keo v Minister for Immigration and Citizenship and Another (2008) 222 FLR 53; [2008] FMCA 1502 at 124.) However in this case, as evidenced by the decision, the Tribunal clearly carried out a review and made a decision. As discussed above, there is nothing to indicate that the Tribunal failed to consider any claim made by the applicant in the sense of any integer of her claims or indeed that it failed to consider all the evidence that was before it. The Tribunal’s reference to not considering the applicant’s evidence of domestic violence does not amount to a statement that it did not in fact address the claim that she made in that respect, as is apparent from the Tribunal’s findings and reasons. Ground four is not made out.

Procedural fairness

Ground five of the application is that the Tribunal committed an error which is described as a “jurisdiction (sic) error of law for the purposes of S75(v) of the constitution”.
The particulars to this ground are that:
a. The Tribunal denied the applicant a fair hearing by failing to alert the applicant that it had received adverse information from her former spouse. It also failed to give the applicant an opportunity to respond to it before the Tribunal concluded its review.
b. the Tribunal breached S.353 of the Act when it failed to discharge its obligation to give the applicant procedural fairness. When under S.353 of the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair and just to the applicant.
In written submissions it appeared to be contended that the Tribunal had denied the applicant a fair hearing on the basis that during the review it received a number of allegations adverse to her but did not tell her about the substance of these allegations. There is, however, no evidentiary basis for the court to reach such a conclusion based on what the Tribunal described as a summary of what occurred at the Tribunal hearing.
In any event, in circumstances where the applicant herself had told the Tribunal at the hearing that her relationship with the sponsor was over in June 2009, the fact that the sponsor wrote to the Tribunal in January 2010 to present the “case against” his estranged spouse did not have to be put to the applicant for comment as it did not constitute adverse information that was “credible, relevant and significant” (and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).
The information given by the former spouse that he was no longer in a relationship with the applicant and that the applicant was pregnant to another man could have no significance or relevance to the decision under review because this information was in fact given to the Tribunal by the applicant herself. Indeed, the applicant informed the Tribunal of the birth of her child and provided a birth certificate which showed the father as a man other than the sponsor in December 2009.
The applicant did not address how such a claim should be seen in light of s.357A of the Act. The legislature has comprehensively codified the substantive procedural protections to be offered to review applicants (see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [35] – [42]; NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at [59] – [87]; SZMKG v Minister for Immigration and Citizenship and Another (2009) 177 FCR 555; [2009] FCAFC 99 at [48] – [50]; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1388 at [27] – [31]). There is no suggestion, and nor is it apparent, that any of the procedural obligations in Division 5 Part 5 of the Act have been breached by the Tribunal. Insofar as the applicant intended to submit that information had to be put to the applicant for comment, such obligations are dealt with in s.359A of the Act and, as set out above, no failure to comply with s.359A has been established.
Insofar as the applicant submitted that it was necessary to have regard to what the Tribunal did in the course of conducting its review to determine whether the applicant was given a fair hearing, as set out above the difficulty that confronts the applicant is that there is no evidence before the court as to precisely what occurred in the hearing. The material before the court does not establish that was a failure by the Tribunal to accord the applicant procedural fairness or, indeed, a failure to comply with s.360 of the Act by putting dispositive issues to her at the hearing. This ground is not made out.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 20 October 2011