Hemmingway v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 153
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hemmingway v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 153
File number(s): SYG 1978 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 2 March 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Partner (Provision) (Class UF) visa – whether Tribunal failed to comply with s 368 of the Migration Act 1958 (Cth) – whether Tribunal acted unreasonably by failing to provide visa applicant with meaningful opportunity to respond to its credibility concerns – whether Tribunal took into account irrelevant consideration – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5F, 338, 347, 359AA, 359A, 359, 360, 368, 430, 476, 477, 478
Migration Regulations 1994 (Cth) reg 1.15A(3)(d), Sch 2 cll 309.211, 309.221
Cases cited: Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497; [2015] FCA 701
Kaur v Minister for Immigration and Border Protection [2015] FCA 1
King v Minister for Immigration and Border Protection (2014) 142 ALD 305; [2014] FCA 766
Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 ; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
SZTGS v Minister for Immigration and Border Protection (2014) 142 ALD 558; [2014] FCA 908
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 22 July 2022 Place: Perth Counsel for the Applicants: Ms T Baw Solicitor for the Applicants: ProActive Legal Counsel for the First Respondent: Mr J Kay Hoyle Second Respondent: Submitting appearance save as to costs Solicitor for the Respondents: MinterEllison ORDERS
SYG 1978 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRUCE JAMES HEMMINGWAY
First Applicant
HSIU-CHEN LIN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
2 MARCH 2023
THE COURT ORDERS THAT:
1.The second applicant is removed as a party to the proceedings.
2.The application is dismissed.
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 LADHAMS:
Introduction
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 20 June 2018 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the second applicant a Partner (Provision) (Class UF) visa (partner visa).
For reasons explained below, I am not satisfied that the applicants have established jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
Background
The applicants were married in Australia on 7 June 2015. On 7 January 2016 the second applicant, Ms Lin, who is not an Australian citizen, applied for a partner visa, sponsored by the first applicant, Mr Hemmingway. Ms Lin was offshore at the time of the visa application.
On 6 February 2017 a delegate of the Minister made a decision not to grant Ms Lin a partner visa on the basis that she did not meet the requirements of cll 309.211 and 309.221 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). These clauses required that, at the time of the decision, Ms Lin continue to be the spouse of Mr Hemmingway. The delegate found that Ms Lin was not the ‘spouse’ of Mr Hemmingway, as defined in s 5F of the Migration Act.
On 6 March 2017 Mr Hemmingway lodged an application to the Tribunal for review of the delegate’s decision. The Tribunal convened a hearing on 9 May 2018 at which Mr Hemmingway, Ms Lin and two other witnesses gave evidence.
On 20 June 2018 the Tribunal affirmed the decision under review.
Tribunal decision
The Tribunal accepted that Mr Hemmingway and Ms Lin were validly married to each other on 7 June 2015 for the purposes of s 5F(2)(a) of the Migration Act. The Tribunal then proceeded to consider the factors set out in reg 1.15A(3) of the Regulations to determine whether a spousal relationship existed between them.
Financial aspects of the relationship: The Tribunal noted that Ms Lin was living offshore and that she and Mr Hemmingway had no joint assets or liabilities, and had no legal obligations in respect of each other. The Tribunal found that Ms Lin and Mr Hemmingway did not share day-to-day household expenses and that they both maintained their own bank accounts for day-to-day expenses, but noted that this was not unusual given they were living in different countries. The Tribunal placed limited weight on the financial aspects of the relationship.
Nature of the household: The Tribunal accepted that Ms Lin and Mr Hemmingway had spent eight months as part of one household following their marriage in June 2015 and that Mr Hemmingway stayed at Ms Lin’s home when he visited her in China, Taiwan and New Zealand. Mr Hemmingway and Ms Lin had no joint responsibility for the care and support of children and gave evidence that they both did washing and cleaning when they lived together, with Mr Hemmingway helping with the heavier household chores. The Tribunal found that Mr Hemmingway and Ms Lin gave consistent evidence about their plans to establish a joint household at Mr Hemmingway’s home. However, the Tribunal placed limited weight on the nature of the household given the very limited periods of cohabitation since marriage.
Social aspects of the relationship: The Tribunal accepted based on the evidence available to it that Ms Lin and Mr Hemmingway represented themselves to their families as being married to each other and that their immediate family members considered them to be in a genuine and continuing spousal relationship.
Nature of the commitment: The Tribunal considered that the evidence of Ms Lin’s and Mr Hemmingway’s commitment to each other, when considered in its totality, was confused and unconvincing. The Tribunal considered that Mr Hemmingway spoke of his commitment to the marriage with Ms Lin and of establishing a life together, but was not convinced that the commitment to the marriage was mutual. The Tribunal considered that the evidence of Ms Lin was deliberately vague, evasive and not indicative of a person in a committed relationship. The Tribunal was not satisfied that both Mr Hemmingway and Ms Lin saw the relationship as being a long-term one.
The Tribunal accepted that Ms Lin and Mr Hemmingway knew each other personally, socialised together on limited occasions and that there was ongoing communication between them. However, the Tribunal was not satisfied that Ms Lin was committed to a shared life with Mr Hemmingway as husband and wife to the exclusion of all others. The Tribunal was therefore not satisfied that Ms Lin and Mr Hemmingway were in a genuine spousal relationship at the time of the review application or at the time of the decision.
The Tribunal was not satisfied that the requirements of s 5F(2)(b)-(d) of the Migration Act were met at the time of application and at the time of the decision. Therefore, Ms Lin did not meet the requirements of cll 309.211 and 309.221 in Schedule 2 to the Regulations.
Judicial review application
The application for judicial review was filed on 13 July 2018, within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
A further amended application filed on 26 May 2020 contains the following grounds:
1.The Second Respondent (the Tribunal) erred as its findings in respect of the Second Applicant were not grounded in probative material and logical grounds, and accordingly, acted with legal unreasonableness and did not comply with the requirement of s.368 of the Migration Act 1958 in that it failed to identify evidence or material relied upon for findings on material question of fact.
Particulars
(a)The Second Respondent did not identify evidence or material relied upon for the finding it made that the “evidence as to the parties [sic] commitment to each other was, when considered in its totality confused [sic] and unconvincing.”
(b)The Second Respondent did not identify evidence or material relied upon for the finding it made that the “visa applicant was not able to give details with any specificity of the review applicant’s family or financial arrangements.”
(c)The Second Respondent did not identify the evidence or material relied upon for the finding it made that the Second Applicant’s “evidence was not indicative of a person in a committed relationship.”
2.The Tribunal was legally unreasonable by failing to provide the Second Applicant with a meaningful opportunity to respond to its credit concerns at the Tribunal hearing.
Particulars
(a)See Particulars (a) to (c) in Ground 1 above.
(b)The credibility of the Second Applicant was a live issue at the Tribunal hearing.
(c)Those issues of concern were likely to be within the knowledge and capacity of the Second Applicant to address.
(d)The Tribunal failed to squarely put to the Second Applicant its specific credibility concerns.
(e)The opportunity afforded to the Second Applicant to give oral evidence must be real and meaningful and not just an empty gesture, and the Tribunal had an obligation to give effect to that requirement in the questioning of the Second Applicant: Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497.
3.The Second Respondent erred in taking an irrelevant consideration into account when considering the nature of the parties’ commitment to each other; which is a matter specified in r.1.15A(3)(d) of the Migration Regulations 1994.
Particulars
(a)The Second Respondent finding of the Second Applicant’s evidence concerning her first husband being in goal and the circumstances surrounding her knowledge of that being implausible is not relevant to the matter specified in r.1.15A(3)(d).
The evidence before the Court comprises the court book, an affidavit of Da Wei David Gu filed on behalf of the applicant on 21 November 2019 and an affidavit of Charlotte Elizabeth Saunders filed on behalf of the Minister on 19 May 2020. Mr Gu’s affidavit annexes a copy of the transcript of the hearing convened by the Tribunal and Ms Saunders’ affidavit annexes a copy of a decision made by a different tribunal on 25 March 2014 in relation to a previous visa application made by Ms Lin.
Consideration
Preliminary issue: standing of Ms Lin
While the application to the Court was commenced with both parties to the relationship named as applicants, only Mr Hemmingway has standing to commence the proceeding in this Court.
As identified in the Minister’s submissions, Mr Hemmingway was the only applicant to the application made to the Tribunal. The delegate’s decision was a Part 5-reviewable decision within the meaning of s 338(5) of the Migration Act. Pursuant to s 347(2)(b) of the Migration Act, an application for review of a decision described in s 338(5) can only be made by, relevantly, the sponsor. Accordingly, only Mr Hemmingway could make the application to the Tribunal. Pursuant to s 478(a) of the Migration Act, the applicant in the review by the relevant Tribunal can seek judicial review of the Tribunal’s decision in respect of that proceeding and for this reason, Mr Hemmingway has standing to commence the judicial review proceeding. However, nothing in s 478 confers on Ms Lin, as a visa applicant who was not a review applicant, standing to commence the proceeding in this Court. I therefore make an order that Ms Lin be removed as a party to this proceeding.
At a practical level, this does not impact the consideration of the grounds of application. The grounds and submissions advanced in this proceeding were the same in relation to both applicants. I will proceed to consider the submissions on the understanding that they are being advanced only on behalf of Mr Hemmingway.
Ground 1
By ground 1, Mr Hemmingway asserts that the Tribunal acted unreasonably and failed to comply with s 368 of the Migration Act by failing to identify a probative basis in the evidence before it for certain findings that it made. More specifically, he submitted the Tribunal made findings in relation to the genuineness of the mutual commitment of him and Ms Lin without referring to the evidence or other material on which those findings of fact were based, in breach of s 368(1)(d) of the Migration Act. Mr Hemmingway also submitted that the findings made by the Tribunal as identified in the particulars to this ground were not based on probative material or logical grounds.
Relevant legislation and principles
Section 368(1)(d) of the Migration Act provides:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
…
(d)refers to the evidence or any other material on which the findings of fact were based…
Both parties made submissions about the interrelationship between the two limbs of ground 1, namely, failure to comply with s 368 on the one hand and unreasonableness or irrationality on the other hand. For the purposes of addressing this ground, it is sufficient to observe that a failure to comply with s 368 of the Migration Act might not itself give rise to jurisdictional error: see, for example, Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 (SZLSP) at [85] (per Rares J); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1 at [70] (per McHugh J). However, the written reasons of the Tribunal can be interpreted in the context of the obligation in s 368 and a failure to identify the evidence or other material on which the Tribunal’s findings of fact were based, as per the requirement in s 368(1)(d) can disclose jurisdictional error. For example, a failure to identify the evidence or other material on which a decision is based may give rise to an inference that the Tribunal did not have probative material on which to base its finding. Also, if it is not otherwise possible to be satisfied that the Tribunal’s written statement had a proper basis, the Tribunal may have constructively failed to exercise its function of review: see SZLSP at [72] (per Kenny J) and [98] (per Rares).
Mr Hemmingway also referred in his submissions to the following statement of Logan J in SZTGS v Minister for Immigration and Border Protection (2014) 142 ALD 558; [2014] FCA 908 at [36]-[37] to explain the relationship between s 368 (or the Part 7 equivalent in s 430) and unreasonableness:
36.…Having regard to SZLSP, a written statement will not comply with s 430 if the conclusion as to absence of satisfaction is not grounded in a reference to material before the tribunal by reference to which a rational decision-maker could have reached that conclusion (per Kenny J at [72]) or, put another way but to no different effect, if there is no “identified basis” for that absence of satisfaction (per Rares J at [94]).
37.Since SZLSP, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) has been determined by the High Court. That case concerned the exercise of a discretionary power under the Act, not the requirement under s 430 to provide a written statement. Further, the granting of this particular class of visa is materially dependent upon a state of satisfaction, not the exercise of a discretionary power. Even so, a purpose of the requirement in s 430 for a written statement and its provision to an applicant for merits review by the tribunal is to expose the tribunal’s reasons for the decision it has made. An alternative way of approaching the present case may well be that the tribunal’s reasons did not provide a reasonable basis for the tribunal’s absence of satisfaction. That would expose an error of the kind described by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. It would be consistent with the approach in Li to the exercise of a discretionary power also to treat unreasonableness in respect of administrative satisfaction as a jurisdictional error.
Both parties referred extensively in their submissions to SZLSP and the principles in that case are relevant to the resolution of this ground.
SZLSP involved an application for a protection visa by an applicant (the first respondent in the appeal) who claimed that he would face harm if returned to China by reason of his practice of Falun Gong. The Refugee Review Tribunal (RRT) asked the applicant a number of questions about Falun Gong at the hearing based on an undisclosed text. The RRT recorded in its reasons that ‘at [the] hearing, I first asked the first named applicant a series of questions about Falun Gong. He answered none of them correctly’. The RRT did not believe that the applicant was a Falun Gong practitioner, reasoning that ‘[h]is inability to answer correctly my questions about basic elements of Falun Gong belief causes me to discount any possibility that he has practiced Falun Gong in China as he claims’. The Full Court (Kenny and Rares JJ in separate reasons; Buchanan J dissenting) found that the Tribunal decision was affected by jurisdictional error.
At [50], Kenny J said:
… The fundamental difficulty in this case is that there is no reference in the Tribunal’s reasons to any material on which it based its finding that none of the first respondent’s answers were “correct” and the first respondent therefore knew “almost nothing” about Falun Gong belief. Taking the Tribunal’s reasons on their face, it appears that the Tribunal arbitrarily decided the first respondent’s answers were “wrong” without any logical basis to do so. Had there been any “evidence or … other material” on which the Tribunal’s finding regarding the first respondent’s knowledge was based, the Tribunal, aware of its obligation under s 430(1)(d), would presumably have referred to it. The inference arises that the Tribunal’s decision was not based on findings or inferences of fact grounded upon probative material and logical grounds. The question is whether the court should draw this inference, or the contrary inference that the Tribunal’s finding was logically based on probative material to which it is not referred in the reasons.
Her Honour concluded at [72] that on the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. Her Honour found that the statement did not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent’s answers, no such material could be found in the record, and no other logical basis justified the Tribunal’s finding. In those circumstances, her Honour inferred that the Tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error.
At [87] Rares J found that the Tribunal’s written statement was ‘bereft of any reasoning process or evidence to support the finding of fact that the husband knew little or almost nothing about Falun Gong’. He continued that ‘the tribunal member’s bare assertion that the husband had not answered his questions “correctly” about what it asserted were basic elements of Falun Gong, was not self-evidently correct’. At [94] Rares J considered that ‘the brevity of the tribunal’s written statement under s 430(1) and the absence of any identified basis for its finding of material fact about the husband’s knowledge and practice of Falun Gong lead to the inference that the tribunal had no evidence or other material referred to in ss 430(1)(d) or 430(3)(b)’, applying Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69].
At [98] Rares J observed that:
Where the tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the tribunal constructively failed to exercise in its function of review.
While s 368 clearly requires the Tribunal to identify its material findings of fact and the evidence or other material on which those findings are based, it does not disclose the level of specificity with which the evidence or other material must be identified. That issue is relevant to the resolution of this ground. Mr Hemmingway referred in his submissions to King v Minister for Immigration and Border Protection (2014) 142 ALD 305; [2014] FCA 766 at [37] where statements of the decision-maker that he had ‘considered all relevant matters’ and ‘all other evidence’ fell short of putting the applicant in any position whereby he could connect in any meaningful manner the findings to the evidence.
Impugned findings of the Tribunal
With these principles in mind, I turn now to the specific findings made by the Tribunal and impugned by Mr Hemmingway. The findings all appear at [28] to [30] of the Tribunal’s reasons under the heading ‘Nature of the relationship’. It is useful to consider these findings in their relevant context so I therefore set out those paragraphs in full with the impugned finding emphasised in bold font:
28.The evidence as to the parties commitment to each other was, when considered in its totality confused and unconvincing. Both parties spoke quite openly of the fact that they took the decision to marry on 22 August 2014 because it enabled the visa applicant to regularise her visa status. The Tribunal was in no doubt that the visa application was an integral part of the visa applicant’s decision to marry. While at the time of the hearing the review applicant spoke of his commitment to the marriage and of establishing a life together with the visa applicant the Tribunal was not convinced on the evidence that commitment to the marriage was a mutual commitment.
29.The visa applicant was not able to give details with any specificity of the review applicant’s family or financial arrangements. The Tribunal is not satisfied the explanation for the visa applicant’s lack of knowledge as to personal circumstances of the review applicant was plausible in the context of two people committed to a shared life. In the context of parties being separated the Tribunal regards information about each other’s living arrangements to be of importance when assessing the nature of the commitment of the parties to the relationship.
30.The Tribunal was concerned the visa applicant was deliberately vague and evasive when giving her evidence in an attempt to avoid scrutiny. Her evidence was not indicative of a person in a committed relationship. Her evidence as to her first husband being in [gaol] and the circumstances surrounding her knowledge of that were in the Tribunal’s view implausible.
The impugned findings relate to the Tribunal’s assessment of the evidence of Ms Lin. Ms Lin gave oral evidence to the Tribunal by telephone, with the assistance of an interpreter. Her evidence appears over 11 pages of the transcript annexed to Mr Gu’s affidavit.
Mr Hemmingway’s submissions in relation to the impugned findings
Mr Hemmingway submitted that in the opening sentence of [28], the Tribunal made a bare assertion that the evidence was confusing and unconvincing, but failed to refer to any particular questions or answers on which it based that finding. Mr Hemmingway submitted that the Tribunal did not disclose the source or substance of its confusion about the evidence or why it considered the evidence to be unconvincing. Mr Hemmingway submitted that it can be inferred from [28] that the Tribunal found that Ms Lin’s motivation for entering the marriage was to ‘regularise her visa status’, but the meaning of that statement is vague and, without reference to any specific evidence, it is imprecise. Mr Hemmingway submitted that the Tribunal’s finding at the end of the paragraph that it was ‘not convinced on the evidence that commitment to the marriage was a mutual commitment’ does not put Mr Hemmingway and Ms Lin in a position to connect the evidence to that finding. Mr Hemmingway further submitted that the Tribunal failed to reveal with any transparency in its reasons why supportive evidence was rejected in preference to its adverse conclusion.
Mr Hemmingway submitted that in [29] the Tribunal again made a conclusory assertion without reference to the evidence and failed to identify the explanation of Ms Lin that it did not accept. Mr Hemmingway also submitted that, without transparency in its reasons, the Tribunal made a conclusion ‘by an assumed preconceived indiscriminate standard of knowledge of Mr Hemmingway’s family or financial arrangements that Ms Lin should have had’. The level of assumed knowledge by the Tribunal was said to be an arbitrary measure without any connection to the evidence.
Mr Hemmingway submitted that at [30] the Tribunal failed to identify the source and substance of its concern that Ms Lin was being ‘deliberately vague and evasive’. The Tribunal did not set out the relevant questions and answers of Ms Lin and it cannot be shown as self-evident that her answers were an attempt to avoid scrutiny. Mr Hemmingway submitted that there are no references to Ms Lin’s responses that could be characterised in that way and there is no reasoning process revealed by the Tribunal to support the assertion.
At the hearing Counsel for Mr Hemmingway submitted that the Tribunal failed to disclose the evidence and material on which its findings were based, meaning that its findings were not based on logical and probative grounds. Counsel for Mr Hemmingway referred to Ms Lin’s evidence as recorded in the transcript and submitted that the transcript discloses that, when tested, Ms Lin knew about Mr Hemmingway, was very direct and straightforward in her answers, did the best she could with her limited understanding of English, and was mostly able to give sufficient details which were consistent with the evidence of Mr Hemmingway. Counsel for Mr Hemmingway submitted that there is nothing in the transcript that self-evidently shows that Ms Lin was being deliberately vague or evasive or displaying any persistent evasiveness. If the Tribunal had formed a view during the hearing that Ms Lin was being deliberately vague or evasive, one would expect the Tribunal to repeat the question until a direct answer was obtained, or otherwise stop Ms Lin from avoiding questions or provide an opportunity for her to clarify her response. But the Tribunal did not do that.
Minister’s submissions in relation to the impugned findings
The Minister submitted that the Tribunal did in this matter identify the basis on which it reached its decision.
First, the Tribunal referred to Ms Lin’s lack of knowledge about the family or financial arrangements. The Minister submitted that during the hearing, the Tribunal asked Ms Lin a series of questions about Mr Hemmingway and it is evident that those questions were directed to the sorts of information that someone in a committed relationship might be expected to know concerning Mr Hemmingway’s living arrangements, financial situation and interactions with his family. The transcript records that on a number of occasions Ms Lin was unable to provide that information or gave answers that were vague, and the Tribunal clearly found those responses unsatisfactory. The Minister submitted that [29] of the Tribunal’s reasons records its evaluation of Ms Lin’s answers concerning the identified matters and it was not necessary for the Tribunal to list and refer to every answer.
Second, the Minister submitted that the Tribunal referred to the evidence given by both Ms Lin and Mr Hemmingway concerning their motivations for entering the marriage and this was clearly identified at [28] of its reasons. The Tribunal reasons at [28] reflect the evidence given by Ms Lin and Mr Hemmingway during the hearing and the Tribunal evaluated this evidence and reached a conclusion as to their motivations. The Minister submitted that the basis for the Tribunal’s reasoning is clear.
Third, the Tribunal made an evaluation of the totality of Ms Lin’s evidence, which was not lengthy. The Minister submitted that it was evident the Tribunal found Ms Lin’s answers to be vague and evasive, and these are characteristics that are principally matters of impression and assessment. The Tribunal made specific reference to Ms Lin’s evidence concerning her knowledge of her first husband being in gaol and the evidence she gave as part of a different visa application. The Minister submitted that it was clear on what basis the Tribunal had reached its conclusions.
Fourth, the Minister submitted that the Tribunal undertook an evaluation of the evidence before it as it was required to do and identified, albeit in relatively broad terms, the evidence and character of that evidence that prompted its concerns.
More specifically, in relation to the impugned findings, Counsel for the Minister submitted that:
(a)The general statement at the start of [28] indicates the Tribunal setting the scene for what it is then going to do in terms of the nature of the evidence that it actually considered. The first proposition addressed, to the effect that both parties spoke openly of the fact that they chose to marry because it enabled Ms Lin to regularise her visa status, was clearly open on the evidence set out in the transcript.
(b)The Tribunal’s statement at [29] that Ms Lin was not able to give details with any specificity of Mr Hemmingway’s family or financial arrangements and that it was not satisfied Ms Lin’s lack of knowledge was plausible are a reference to parts of the evidence given by Ms Lin at the Tribunal hearing, as reflected in the transcript. The Tribunal’s assessment is based on its own thought processes and its own characterisation of the nature of the answers given. While sometimes Ms Lin gave answers that were specific, there were many times when she indicated she did not know the answer or could not recall. The critical point is that the Tribunal formed a view that those answers were lacking in specificity.
(c)The first sentence of [30] is a further characterisation of the Tribunal’s dissatisfaction of the way in which Ms Lin answered questions. The Tribunal’s impression was that answers were vague and evasive and it was not necessary for the Tribunal to identify a specific answer that is vague and evasive.
Resolution
There is no doubt that the Tribunal could have provided greater detail in its reasons and this would have better enabled Ms Lin and Mr Hemmingway to understand the reasons for the Tribunal’s decision and the basis of the Tribunal’s concerns. However, it does not necessarily follow that simply because the Tribunal could have provided more detailed reasons, the reasons it in fact gave are insufficient or disclose jurisdictional error on the basis that the Tribunal has reached conclusions without a probative basis.
In the present case, I am satisfied that, although brief, the reasons the Tribunal gave for its findings about the nature of the commitment between Ms Lin and Mr Hemmingway sufficiently set out the facts and evidence on which they are based and provide a logical and probative reason for the conclusions reached. I address each of the impugned findings in turn.
Impugned finding at [28]: That the evidence of Ms Lin’s and Mr Hemmingway’s commitment to each other was, when considered in its totality, confused and unconvincing
I accept the Minister’s submission that the first sentence of [28] is a general statement that foreshadows the Tribunal’s consideration of the evidence. The sentence reflects the Tribunal’s overall impression of the evidence in relation to the nature of the commitment as confused and unconvincing. The Tribunal does not need to identify with specificity each and every item of evidence that led to this conclusion. The sentence should not be read in isolation and should be read in conjunction with the following paragraphs, in which the Tribunal identified a number of the aspects of the evidence that informed its assessment of the evidence being confused and unconvincing.
The first matter mentioned was the evidence that Ms Lin and Mr Hemmingway decided to marry because it enabled Ms Lin to ‘regularise her visa status’. I do not accept Mr Hemmingway’s submission that the Tribunal’s statement to this effect was vague or imprecise. It is tolerably clear from the Tribunal reasons that the Tribunal was of the view that the reason Mr Hemmingway and Ms Lin married was so that Ms Lin could get a visa that would enable her to remain in Australia, and that this view was based on its assessment of the oral evidence given by Mr Hemmingway and Ms Lin at the hearing.
I am satisfied that when [28] is read in the context of all of the paragraphs addressing the Tribunal’s assessment of the nature of the commitment, it is sufficiently clear that the Tribunal had concerns with aspects of Ms Lin’s evidence as well as parts of Mr Hemmingway’s evidence, particularly in relation to the reasons he and Ms Lin married. While the Tribunal could have been more specific in its reasons, I am satisfied that the Tribunal reasons are sufficient to put Ms Lin and Mr Hemmingway in a position where they can connect the evidence to the finding.
Impugned finding at [29]: That Ms Lin was not able to give details with any specificity about Mr Hemmingway’s family or financial arrangements
The matter raised at [29], namely, that Ms Lin was not able to give details with specificity of Mr Hemmingway’s family or financial arrangements, is another reason for the conclusion expressed upfront at [28].
I do not accept Mr Hemmingway’s submission that the finding at [29] is a conclusory statement that does not refer to evidence. It is clear from the context of the Tribunal’s reasons that the Tribunal was referring to the oral evidence given by Ms Lin at the hearing about Mr Hemmingway’s family and finances. I accept the Minister’s submission that the statement is a reflection of the Tribunal’s own assessment and characterisation of the responses given by Ms Lin. It was not necessary for the Tribunal to give specific examples of the answers that it found to be lacking in specificity.
It is clear from reviewing the transcript that there were some questions about Mr Hemmingway’s family and financial arrangements that Ms Lin was able to answer and other’s that she was not able to answer.
For example, Ms Lin was able to clearly indicate Mr Hemmingway’s address, give a basic description of the house that he owned and state the number of siblings, children and grandchildren that he has. She was also able to indicate Mr Hemmingway’s approximate weekly income, the approximate ages of Mr Hemmingway’s grandchildren and indicate the type of work that she thought some of his family members did, although there was a lot of uncertainty expressed in her answers about these topics.
There were also answers that Ms Lin gave which were only partial answers, such as her response as to where Mr Hemmingway gets his income, and she did not know where some of Mr Hemmingway’s family members lived, but was able to give some indication of the driving time from Mr Hemmingway’s property to the houses of his family members.
There were some questions that Ms Lin was unable to answer, such as how long Mr Hemmingway had lived in his house, when he retired, and whether his sister has children.
Ms Lin at times attributed her difficulties in understanding to her limited English language skills and at times to difficulties with her memory.
While I acknowledge that the Tribunal reasons do not make clear precisely which of Ms Lin’s responses and explanations for her lack of knowledge the Tribunal considered to be unconvincing, I accept that the Tribunal was referring to some or all of the responses Ms Lin gave to the Tribunal’s questions about Mr Hemmingway’s financial arrangements and family. There is a sufficient connection between this evidence and the Tribunal’s finding to make it tolerably clear to Mr Hemmingway and Ms Lin that the Tribunal had concerns with the answers given by Ms Lin at the hearing.
Different decision-makers might reasonably form a different impression of Ms Lin’s evidence. However, on the evidence before the Tribunal, it was reasonably open for the Tribunal to find that the evidence about Mr Hemmingway’s family and financial arrangements given by Ms Lin at the hearing lacked specificity.
Impugned finding at [30]: That Ms Lin was deliberately vague and evasive when giving her evidence in an attempt to avoid scrutiny
I acknowledge that the Tribunal has not identified with specificity which of Ms Lin’s answers it considered to be vague and evasive. Again, however, it is tolerably clear from the context that the Tribunal is referring to Ms Lin’s oral evidence at the hearing. While it might have been preferable for the Tribunal to at least give some examples of answers that it considered to be vague and evasive, I accept the Minister’s submission that it was not necessary for the Tribunal to do so. In the opening sentence of [30], the Tribunal is making a general statement about its overall impression of Ms Lin’s evidence given at the hearing. The Tribunal’s comment that Ms Lin’s evidence was not indicative of a person in a committed relationship is again an expression of an overall impression of her evidence.
This case is distinguishable from SZLSP
I consider the present case to be distinguishable from SZLSP. As discussed above, in SZLSP the Tribunal found that the applicant’s answers about Falun Gong were incorrect, but it did not disclose any basis for that finding or the source of what it considered to be the correct answers. The Tribunal there was purporting to assess the applicant’s knowledge against an objective standard of the correct answers.
By contrast, the findings complained of in the present case are largely matters of the overall impression of Ms Lin’s evidence.
The Tribunal asked Ms Lin a range of questions to test her knowledge of Mr Hemmingway’s circumstances, including about his family and financial arrangements. To the extent that Ms Lin’s answers might have been seen to be ‘incorrect’, the only potential source of ‘correct’ information was Mr Hemmingway’s evidence, which was before the Tribunal, unlike the Tribunal’s source of Falun Gong knowledge in SZLSP. However, the Tribunal in the present case appears to have been less concerned with ‘incorrect’ or ‘inconsistent’ answers and more concerned about the lack of detail that Ms Lin was able to provide in relation to Mr Hemmingway’s circumstances.
The Tribunal’s purpose in questioning Ms Lin the way it did appears to have been to ascertain the nature of Ms Lin’s and Mr Hemmingway’s commitment to each other in circumstances where they had been living in separate countries for most of the time since their marriage. The Tribunal expressly acknowledged at [29] that it considered the information about each other’s living arrangements to be important in assessing the nature of the commitment in circumstances where Ms Lin and Mr Hemmingway were living separately. The Tribunal also noted at [31] that it placed considerable weight on the concerns it had with the evidence as it indicated that Mr Hemmingway and Ms Lin did not communicate as they claimed or did not know each other as well as parties in a committed relationship would.
In asking the questions it did, the Tribunal has not imposed some sort of arbitrary minimum amount of knowledge that Ms Lin must have about Mr Hemmingway, but rather has relied on Ms Lin’s difficulty in answering some of the questions to form an impression of her evidence overall. It was open to the Tribunal to place weight on this.
Conclusion on ground 1
Overall, while there is no doubt that the Tribunal could have provided far greater detail than it did in its reasons, I am satisfied that the Tribunal has given a plausible justification for its findings, and in particular its conclusion regarding the nature of the commitment between Mr Hemmingway and Ms Lin. I am satisfied that the Tribunal has identified, albeit very broadly, the evidence on which its findings were based. I am not satisfied that the high threshold required to establish that the findings were illogical, irrational or unreasonable has been met: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [11]-[15].
Ground 1 is not established.
Ground 2
By ground 2, Mr Hemmingway asserts that the Tribunal acted unreasonably by failing to provide Ms Lin with a meaningful opportunity to respond to its concerns about her credibility at the Tribunal hearing.
Relevant legislation and authorities
It should be noted at the outset that Ms Lin was not the review applicant before the Tribunal and therefore the Tribunal did not owe her the obligations set out in ss 359A and 360 of the Migration Act: see Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497; [2015] FCA 701 (Huynh) at [63]-[67]. The Tribunal did, however, invite Ms Lin to give information pursuant to s 359(2) of the Migration Act. That subsection allows the Tribunal to ‘invite, either orally (including by telephone) or in writing, a person to give information’. Any assessment of the reasonableness of the Tribunal’s questioning of Ms Lin needs to be considered in the context of s 359(2).
In advancing this ground, Mr Hemmingway relies on the judgment in Huynh. In that case, the Federal Court (Griffiths J) found that the Tribunal decision was legally unreasonable because the Tribunal did not afford the visa applicant, who was a witness in the Tribunal review, a meaningful opportunity to address particular issues of concern regarding his credibility: see Huynh at [103].
In the context of s 359 of the Migration Act, the Federal Court in Huynh said at [89]:
… [H]aving determined to exercise its discretionary power under s 359(2) to invite [the visa applicant] to give information orally and having complied with the requirements in s 359B(1) and (3), the Tribunal was obliged to conduct its interview of [the visa applicant] reasonably in the sense explained in cases such as [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18] and [Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1] . The purpose of s 359 is to empower the Tribunal in its discretion to get information, either orally or in writing, which is relevant to the issues arising in the review. That purpose is not unlike the purpose of s 360… In a case where the Tribunal, in its discretion, determines to have a person give oral evidence at an interview it is plainly contemplated that this will occur before the Tribunal makes its decision. That is necessarily implicit in the obligation imposed by s 359(1) to have regard to relevant information which is obtained under that provision. And as is also the case with s 360(1), the opportunity for a person to give information in response to an invitation made under s 359(1) and (2) must be meaningful. The Tribunal has a discretion as to the questions which it will raise with a person whom it invites to give information at an interview, however, those questions must give effect to the requirement that the opportunity to give information is meaningful… As the Full Court stated in Singh at [51] what amounts to a “meaningful opportunity” to present evidence “will be fact dependent in each case”. In my view, this observation is equally applicable to an interview conducted pursuant to ss 359(2) and 359B(3).
In assessing the reasonableness of the Tribunal’s conduct, the Federal Court in Huynh relied on the principles relating to legal unreasonableness identified in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 ; [2014] FCAFC 1 (Singh). The Court in Huynh summarised at [85] of its reasons the principles it derived from Singh:
(a)legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power involves legal unreasonableness requires “careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence” (at [42]);
(b)as is the case with the obligation to afford procedural fairness, there is an implication that the Parliament intends a power to be exercised reasonably, subject to any clear statutory qualification or contrary intention (at [43]);
(c)legal unreasonableness falls into two categories: it can be a conclusion reached by a supervising court after identifying an underlying jurisdictional error in the decision-making process or it can also be “outcome focused” without necessarily identifying another underlying jurisdictional error (at [44]);
(d)where a decision-maker has given reasons for its decision, the supervising court must look at those reasons to understand why the power was exercised as it was. It would be “a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable” (at [47]);
(e)the indicia of legal unreasonableness are to be found in the scope, subject and purpose of the relevant statutory provision. As the Full Court observed at [48]:
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised…;
(f)in the case of discretionary powers vested in a body such as the Tribunal, the location of those powers in the statutory scheme as aids to the performance of a review function is important, noting that the entire function of a review by that Tribunal under Pt 5 of the Act is to make the correct or preferable decision in respect of an individual applicant or application (at [49]);
(g)the interaction between a tribunal’s obligations of procedural fairness in conducting a review and the standard of legal reasonableness can operate to control the manner in which such a tribunal may exercise a discretion reposed in it (at [50]); and
(h)s 360 requires the Tribunal to give an applicant a meaningful opportunity to appear and present evidence and argument, which involves a fact dependent exercise in each case to determine whether such an opportunity or real chance has been afforded (at [51]).
Mr Hemmingway also relied on Kaur v Minister for Immigration and Border Protection [2015] FCA 1 (Kaur), where the Federal Court found that the Tribunal denied the applicant procedural fairness based on the questioning by the Tribunal member. While I am mindful of the principles articulated in this case, I consider the case to be of limited assistance in resolving the issues raised by this ground. The Federal Court’s judgment in Kaur was based on a finding that the applicant was denied procedural fairness. The ground pleaded by Mr Hemmingway is not a procedural fairness ground, but rather an unreasonableness ground. Further, in Huynh at [106], the Federal Court left open the question of whether a review applicant has standing to complain of procedural unfairness in respect of another person. Neither party has addressed that question in the present case, presumably because it is not raised on the ground as pleaded. I have therefore not addressed Kaur further in my consideration of ground 2.
Whether the Tribunal acted unreasonably in the present case
Mr Hemmingway submitted that in the present case:
(a)Ms Lin’s credibility was a live issue and it was within Ms Lin’s knowledge or capacity to explain any concerns about her credibility;
(b)Ms Lin did not fully understand what she was being asked and did not understand the impact the questions she was being asked would have on the Tribunal decision; and
(c)the Tribunal made bare assertions about deficiencies in Ms Lin’s evidence that went to Ms Lin’s credibility and those matters were not put to her fairly or in a way that she could understand the questions and their implications.
Mr Hemmingway also drew a distinction between the manner in which the Tribunal addressed its concerns to him and the manner in which it addressed its concerns to Ms Lin. This can be seen in Mr Hemmingway’s written submissions at [37]-[39], which read:
37.A stark difference in the treatment of the questioning is that the Tribunal explained its concerns to Mr Hemmingway, however, failed to do that for Ms Lin. If Ms Lin was not given a full opportunity to address the concerns about her credibility in a real and meaningfully way, then her interview was an ‘empty gesture’. Mr Hemmingway did not have the knowledge and capacity to address the concerns that the Tribunal had in Ms Lin’s evidence so it was important that she should have been afforded the same opportunity.
38.Furthermore, the transcript shows that the Tribunal said to Mr Hemmingway that it had asked Ms Lin about her inconsistent evidence in her [earlier] visa as it would lead the Tribunal to find she was not a credible witness, however, when read fairly that was never squarely put to Ms Lin. This was exacerbated by Ms Lin not understanding the significance of the questions especially as she had a limited understanding of English and had to rely on an interpreter. Consequently, the Tribunal did not explain to Ms Lin in the same way that he did to Mr Hemmingway that the shortcomings in her responses could lead the Tribunal to make an adverse credibility finding against her especially in considering her commitment to the relationship.
39.Moreover, Ms Lin was not given the 10 extra days to provide a response that the Tribunal gave to Mr Hemmingway. That contrasting treatment between Mr Hemmingway and Ms Lin further demonstrates that the Tribunal was aware of its duty to provide fairness in the sense of a meaningful opportunity to respond, but failed to do so to the person who had the knowledge and capacity to address the issues. In effect, the Tribunal failed to do what it said it did and was contrary to Huynh.
It is convenient to first address Mr Hemmingway’s submissions about the distinction in the way that the Tribunal put relevant information to him and to Ms Lin.
At the Tribunal hearing, the Tribunal member relevantly said to Mr Hemmingway (emphasis added):
…Now I said to you at the beginning that if I had concerns, I would give you the opportunity to respond to them.
…
And I do have some concerns. And so under section 359AA, I’m going to put those concerns to you in terms of the inconsistent evidence. You gave me inconsistent evidence with what she gave me as regards to her first husband, because you said he was dead.
…
And there was inconsistent evidence given about the monetary amounts that you send to her.
…
I put to her my concerns about her evidence being inconsistent with evidence that had previously been given in the matter of her application for a … visa. That inconsistent evidence would lead me to find that she was not a credible witness, but she was in fact a person who would tailor their evidence to suit the application that was before the tribunal. And to put it bluntly, that would lead me to find that she was a person who was motivated by her quest for a visa, rather than motivated by her commitment to you. So that’s the concern I have.
There were a number of occasions when your evidence was not inconsistent, you simply did not know things about each other’s family and personal circumstances that I would have expected persons in a committed, married relationship to know about each other. While I appreciate that you have been separated, I also appreciate that your evidence to me is that you are in daily communication, and that would mean there is quite a deal of time when that minutia of a person’s life would be discussed. But your evidence was not consistent with you having that degree of communication.
It is clear from this extract that the Tribunal was complying with its procedural fairness obligation in s 359AA of the Migration Act by giving to Mr Hemmingway clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review and ensuring as far as is reasonably practicable that Mr Hemmingway understood why the information was relevant to the review. The Tribunal afforded Mr Hemmingway 10 days to respond to its concerns. There was nothing to prevent Mr Hemmingway, as the review applicant, from providing a further statement from Ms Lin to the Tribunal within that 10 day period.
To the extent to which Mr Hemmingway’s submissions proceed on an assumption that Ms Lin was owed or should have been afforded the same procedural fairness obligations as the Tribunal extended to Mr Hemmingway, the submissions cannot be accepted. In Huynh, the Court rejected the notion that the procedural fairness obligations in Division 5 of Part 5 are owed to visa applicants who are not review applicants. The Tribunal therefore did not owe to Ms Lin the procedural fairness obligation in ss 359AA or 359A of the Migration Act. I accept the submission advanced at the hearing by Counsel for the Minister that the contrast between the way in which the Tribunal raised matters with Mr Hemmingway and the way raised matters with Ms Lin is explained by the different roles that both of them had in the proceeding before the Tribunal.
Counsel for Mr Hemmingway submitted that in putting its concerns to Mr Hemmingway, the Tribunal in the final paragraph of the extract at [74] above used the pronoun ‘you’ suggesting its concerns were directed to Mr Hemmingway, but then in its decision, it is clear that the concerns of the Tribunal were with the evidence of Ms Lin, and she was not afforded an opportunity to comment on the inconsistencies. Counsel for Mr Hemmingway submitted that it was inaccurate for the Tribunal in its submissions to say that it was not satisfied with the explanation of Ms Lin when it did not give her a chance to comment.
I do not accept that this discloses the jurisdictional error alleged. Read fairly, the references in the final paragraph of the extract at [74] above to ‘you’ appear to refer to both Mr Hemmingway and Ms Lin. This can be seen from the overall context, but also more specifically to the reference to the lack of knowledge about each other’s family and personal circumstances. Ms Lin, in the course of giving her evidence, on a number of occasions gave explanations for not being able to properly answer questions, including her lack of English skills and the time that had passed since she was told particular information. The Tribunal’s reference at [29] to the explanation of Ms Lin’s lack of knowledge of Mr Hemmingway’s personal circumstances being implausible can be understood in this context and it was not unreasonable for the Tribunal to make that finding on the evidence before it.
I accept that, in fulfilling its obligations under s 359AA of the Migration Act, the Tribunal expressed its concerns about Ms Lin’s credibility to Mr Hemmingway more clearly than it expressed its concerns to Ms Lin. However, that in and of itself does not mean that the Tribunal acted unreasonably in the manner in which it asked questions of Ms Lin. The correct lens through which ground 2 should be assessed is whether the Tribunal acted unreasonably in the manner in which it questioned Ms Lin having invited her to give evidence pursuant to s 359 of the Migration Act.
Counsel for Mr Hemmingway took issue with the emphasised portion of the Tribunal’s statement made in compliance with s 359AA extracted at [74] above. Counsel for Mr Hemmingway submitted that, contrary to what the Tribunal told Mr Hemmingway, it did not in fact explain to Ms Lin that the inconsistent evidence would lead it to believe that she was not a credible witness, and therefore Ms Lin was not given an opportunity to meaningfully address the implications of what was put to her.
Whether or not the Tribunal acted unreasonably in the manner in which it questioned Ms Lin is not meaningfully determined by comparing the way in which issues were raised with Mr Hemmingway and the way they were raised with Ms Lin, or by considering whether the Tribunal accurately described to Mr Hemmingway the issues it raised with Ms Lin. It is rather to be resolved by looking at the circumstances of the case as a whole, with a particular focus on the questions asked of Ms Lin.
After asking Ms Lin a number of questions about her relationship with Mr Hemmingway and giving her an opportunity to discuss her relationship, the Tribunal then put to Ms Lin a number of questions that it had based on matters referred to in the documents before it, and which had not otherwise been addressed in Ms Lin’s oral evidence. The Tribunal asked Ms Lin why she originally came to Australia in 2012. After Ms Lin responded that she just wanted to visit, because she did not have any experience visiting overseas, the Tribunal put to Ms Lin that in an earlier visa application, she indicated that she came to Australia to seek a visa to stay here. The Tribunal then put to Ms Lin that her evidence given at the hearing that she did not know why her first husband was in gaol was inconsistent with the evidence she gave about this in her earlier visa application and invited her to comment. After she did so, the Tribunal then asked Ms Lin why she told a previous tribunal that her first husband was in gaol for a particular reason.[1] After Ms Lin addressed that question, the following exchange took place:
MEMBER: I put it to you that your motivation in marrying Mr Hemmingway was to secure permanent residency in Australia.
INTERPRETER: I don’t understand what you mean.
MEMBER: I put it to you that the reason you married was to obtain a permanent visa to Australia.
INTERPRETER: But I want to say that about the visa, I don’t really have to have that particular visa. But about my husband, he is a really good person. He makes me feel to have a home. Ever since the first day we got married, I can swear to god that he is the one I want to have and he is all I want to have, he’s my choice. And I really want to say, Member, all my answers to your questions are true.
[1] The particular reason is not relevant to the resolution of this ground and is therefore not set out in these reasons.
On Mr Hemmingway’s case, there are two main questions to be determined in addressing this ground. The first is whether the Tribunal put to Ms Lin the concerns that it had about her credibility and, if not, whether it was unreasonable for the Tribunal not to put its concerns to Ms Lin. The second, and related, question is whether questions were asked of Ms Lin in a way that she could understand.
I accept the Minister’s submission that the Tribunal asked Ms Lin about matters that were of specific concern to it, and which reflected on her credibility. These include the inconsistent information about her first husband and her motivation for marrying Mr Hemmingway. The Tribunal’s concerns about Ms Lin’s first husband arose because Ms Lin gave oral evidence at the hearing that was inconsistent with documentary evidence before the Tribunal. The concerns about Ms Lin’s motivations for marrying Mr Hemmingway were central to its assessment of the nature of the commitment and the genuineness of the spousal relationship. It was appropriate for the Tribunal to put these concerns to her, consistent with the approach in Huynh.
I further accept the Minister’s submissions that it was not unreasonable for the Tribunal not to specifically advise Ms Lin of its impression of her evidence or its characterisation of her answers as vague or implausible. The Tribunal does not need to disclose to a witness in the course of a hearing the Tribunal’s impression of the evidence given by the witness. This is consistent with the general principle, albeit one which arises in a procedural fairness context, that the Tribunal does not need to expose its thought processes to an applicant before making the decision: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9].
I then turn to the second question, namely, whether the Tribunal questioned Ms Lin in a way that enabled her to understand. There is nothing on the face of the transcript to suggest that Ms Lin did not understand the two questions that the Tribunal asked her about her previous evidence regarding her first husband and its inconsistency with her evidence at the Tribunal hearing. She gave largely coherent answers to those questions. When the Tribunal asked Ms Lin about her motivation for marrying Mr Hemmingway, she clearly did not understand the question the first time it was asked and told the Tribunal this. While Mr Hemmingway complains that the question was reframed in essentially the same terms, it is apparent from the transcript that Ms Lin understood the question the second time and was able to provide an answer.
While the Tribunal did not expressly state that Ms Lin’s answers could cause it to find that she is not a credible witness and this may cause it to reject parts of her evidence, I accept the Minister’s submission that it is clear from the transcript that Ms Lin understood that the Tribunal’s concerns went to her credibility. At the conclusion of the Tribunal’s questions, Ms Lin twice reiterated that she answered the Tribunal’s questions truthfully.
In all the circumstances of the present case, I am not satisfied that the Tribunal acted unreasonably in the manner in which it questioned Ms Lin. In reaching this finding and considering the matters raised above, I have taken into account that Ms Lin, as the visa applicant, had a particular interest in the outcome of the review and was not a disinterested witness.
Unreasonableness is fact specific and is not to be determined by comparing and contrasting different cases. However, given Mr Hemmingway’s reliance on Huynh, before leaving this ground it is appropriate to briefly state why I consider the present case to be very different from Huynh. The Tribunal in Huynh made adverse credibility findings against an applicant for a partner visa based on information that was in the documentary evidence of the visa applicant available to the Tribunal before the hearing. The Tribunal did not ask the visa applicant any questions that would address the inconsistencies in the documentary evidence, and instead, effectively asked the visa applicant three very broad questions. The first was what the applicant had to say in regard to the delegate’s concern that the spouse application was not genuine. The second was an invitation to describe his wife, including her personality and what makes her a suitable partner for the visa applicant. The third was a broad invitation to tell the Tribunal anything else about the application.
In the present case, the Tribunal asked Ms Lin a number of very specific questions about her relationship with Mr Hemmingway and her knowledge of his family and financial arrangements, which (as explained above) the Tribunal considered to be important to its assessment of the nature of the commitment in circumstances where Mr Hemmingway and Ms Lin had been living in separate countries. Ms Lin was invited to comment on matters that were of concern to the Tribunal based in part on the other evidence before it, such as the questions discussed above about her first husband and her motivations for marrying Mr Hemmingway. In contrast to Huynh, the Tribunal in the present case gave Ms Lin an opportunity to answer questions about the matters that were of concern to it.
Ground 2 is not established.
Ground 3
By ground 3, Mr Hemmingway asserts that the Tribunal took into account an irrelevant consideration when considering his and Ms Lin’s commitment to each other. The irrelevant consideration was said to be the Tribunal’s finding at [30] that Ms Lin’s evidence concerning her first husband being in gaol and the circumstances surrounding her knowledge of that was implausible.
Relevant legislation and authorities
In considering the nature of the commitment for the purposes of reg 1.15A(3)(d) of the Regulations, the Tribunal is required to have regard to matters including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
While Mr Hemmingway pleaded this ground as asserting that the Tribunal took into account an irrelevant consideration, he appeared to re-characterise the ground as unreasonableness in his written submissions and relied on the following passage of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72] (footnotes omitted):
Further, in Minister for Aboriginal Affairs v Peko Wallsend Ltd [(1986) 162 CLR 24; [1986] HCA 40], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Consideration of whether Tribunal relied on an irrelevant consideration or acted unreasonably in the present case
Mr Hemmingway submitted that:
(a)In relying on Ms Lin’s knowledge of her first husband as one of the matters that went to its ultimate conclusion, the Tribunal took into account an irrelevant consideration. Her knowledge of circumstances of a former spouse who she divorced 18 years ago and with whom she has had no contact since could have no bearing on the genuineness of her relationship with Mr Hemmingway.
(b)The reference to Ms Lin’s knowledge of her first husband’s circumstances immediately follows the Tribunal’s comment that Ms Lin’s evidence ‘was not indicative of a person in a committed relationship’. Knowledge of her first husband is irrelevant to this issue and the Tribunal was manifestly unreasonable in taking it into account.
(c)The Tribunal took into account this irrelevant factor in viewing Ms Lin’s credibility negatively against the overwhelming contrary evidence that was favourable to Ms Lin.
The Minister submitted that:
(a)An ‘irrelevant consideration’, within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40, is one that the applicable statute, properly construed, renders mandatorily irrelevant. As a matter of construction, the matters that can be considered under reg 1.15A(3)(d) are broad. Nothing in the construction of reg 1.15A(3)(d) supports a construction that the matters identified in ground 3 are mandatorily irrelevant.
(b)Mr Hemmingway mischaracterises the Tribunal’s reasons. The Tribunal’s consideration of reg 1.15A(3)(d) necessarily involved assessing the credibility of Ms Lin. An assessment of credibility informs whether an applicant is to be believed more generally about the claims advanced. The Tribunal was troubled by conflicting statements that Ms Lin had made about her first husband in relation to a different visa application process. That issue formed part of the broader concern that the Tribunal had about the credibility of Ms Lin.
At first glance, the Tribunal’s statement that Ms Lin’s evidence as to her first husband being in gaol and the circumstances surrounding her knowledge of that were in the Tribunal’s view implausible may appear to have no direct bearing on issues relating to the nature of the commitment between Ms Lin and Mr Hemmingway. However, it is tolerably clear from the Tribunal reasons as a whole that the Tribunal saw this as a matter going to Ms Lin’s credibility. Unfortunately, this was not clearly expressed in the Tribunal’s reasons and, had it been expressed in the Tribunal’s reasons in a similar way to that in which it was expressed when putting information to Mr Hemmingway pursuant to s 359AA of the Migration Act, the relevance of the information would be much clearer.
Understood as a credibility issue, it is not Ms Lin’s knowledge of her first husband’s circumstances per se that the Tribunal considered relevant to its assessment of the matters in reg 1.15A(3)(d) of the Regulations, but rather the inconsistent and implausible evidence that she gave about her knowledge of her first husband’s circumstances in her two separate visa applications.
It was relevant for the Tribunal to take into account Ms Lin’s credibility in assessing the nature of the commitment between Ms Lin and Mr Hemmingway, and matters going to Ms Lin’s credibility are not irrelevant considerations that are outside the subject-matter, scope and purpose of reg 1.15A(3)(d).
The ground as pleaded therefore is not established.
I am also not satisfied that the ground is established when re-characterised as an assertion of unreasonableness. The Tribunal has not placed manifestly unreasonable weight on Ms Lin’s evidence about her knowledge of her first husband’s circumstances in assessing Ms Lin’s credibility or in assessing the matters in reg 1 15A(3)(d). When the Tribunal reasons are read as a whole, it is clear that there are a number of matters that the Tribunal has taken into account in assessing Ms Lin’s credibility and no single matter appears to have been determinative.
Ground 3 is not established.
Conclusion
Mr Hemmingway has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 March 2023
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