Hinton v Minister for Immigration - [2014] FCCA 2505

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINTON v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2505

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal acted in breach of s.358 of the Migration Act 1958 (Cth) – alleged failure by Tribunal to consider evidence – alleged failure by Tribunal to make an enquiry – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 358, 476

Tickner v Chapman [1995] FCA 1726; (2005) 57 FCR 451
Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship vSZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377

Applicant:

PAUL RONALD HINTON

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1235 of 2013

Judgment of:

Judge Nicholls

Hearing date:

1 April 2014

Date of Last Submission:

1 April 2014

Delivered at:

Sydney

Delivered on:

31 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr L J Karp

Solicitors for the Applicant:

VietAust Lawyer

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made on 3 June 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1235 of 2013

PAUL RONALD HINTON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 3 June 2013 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) by Mr Paul Ronald Hinton (“the applicant”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 8 May 2013 which affirmed the decision of the Minister’s delegate to refuse a Partner (Provisional) (Class VF) visa (“the visa”) to Mr Hoang Liem Tran (“the visa applicant”).

Background

The Minister agreed that the applicant’s written submissions, filed in these proceedings, fairly summarised the relevant background facts, relevant legislation and the Tribunal’s decision. I will rely on them for the purposes of this judgment. They were, relevantly, as follows

([1] – [13] of the applicant’s written submissions):
“[1] Paul Ronald Hinton who is the applicant before this Court, and was the ‘review applicant’ before the Tribunal, is an Australian citizen (CB 66). As at 3 June 2008, the date of the partner visa application, he was export manager for Nam Phuong Trading Ply Ltd (CB 2, 19).
[2] Mr Hinton claimed to have met the visa applicant, Ms Nguyen Thi Suong, a Vietnamese citizen, in Vietnam on 20 September 2004 (CB 1). It was claimed that they began a relationship over three years later. They made a decision to marry on 29 November 2007 and married in Sydney on 11 January 2008 (CB 1). The application form to sponsor a partner to migrate to Australia was lodged on 7 April 2008 (CB 1-8). The application for Ms Nguyen to migrate to Australia as a partner was made on 3 June 2008 (CB 9-30). Ms Nguyen’s two adult children, Ms Tran Thi Be Giang (Date of Birth 7 March 1986) and Mr Tran Hoang Liem (Date of Birth 19 August 1984) were included in the application (CB 35-46).
[3] That application was rejected on 22 October 2008

(CB 66-71). It was remitted for reconsideration by the MRT on 31 March 2010 (CB 76). Mr Hinton lodged another sponsorship application on 28 April 2010 (CB 78-86) to comply with the Department’s requirements set out at CB 76-7). Updated forms 47A for Ms and Mr Tran were also submitted (CB 90-101).
[4] On 3 December 2010 the application for a partner

(sub class 100) visa was approved for Ms Nguyen and for Ms Tran (CB 117-8). That for Mr Tran Hoang Liem, the visa applicant’s son, was rejected (CB 127-129). The delegate found that Mr Tran did not meet the requirements of Migration Regulations Sch. 2 Cl. 309.321 in that he was not ‘dependent’ on his mother in terms of Migration Regulation 1.05A (CB 131-134). An application for review of this decision was lodged with the Migration Review Tribunal (the Tribunal) on 30 December 2010 (CB 136-142).
THE LEGISLATION
[5] Migration Regulation 309.311 requires that a secondary applicant, which Mr Tran was, had to be ‘a member of the family unit of a person who satisfied the primary criteria in subdivision 309.21’.
[6] A ‘member of the family unit’ was relevantly defined in Migration Regulation 1.12 as, ‘a dependent child of the family head or a spouse of the family head;…’ (Reg l.12(1)(a)). A ‘dependent child’ included a person over 18 who is a child of another person and is dependent on that other person (definition in Reg 1.03), and ‘dependent’ is relevantly defined in Reg 1.05A as follows;
“…a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter;
THE MATTER BEFORE THE TRIBUNAL
[7] A hearing was set down for 22 November 2012, but rescheduled for 9 January 2013 and was postponed again due to Mr Hinton’s hospitalisation.
[8] On 19 December 2012 Mr Hinton’s solicitor and migration agent submitted further documentation including Mr Tran’s statement in Vietnamese translated into English (CB 174-5). In that statement Mr Tran canvassed his upbringing in Vietnam, and stated that after his mother and sister left Vietnam to settle in Australia his mother supported him by sending him money to pay for his living expenses and studies. He stated that since he was born he was emotionally and financially dependent on his mother. Evidence in the form of invoices for money transfers and certificates was also sent (CB 178-189).
[9] On 8 March 2013 the Tribunal was advised that because of Mr Hinton’s medical condition he would not be able to attend the hearing, either in person or by phone. It was requested that the Tribunal make its decision on the papers (CB 215 [16]-[19]). The Tribunal mentioned that, ‘A submission and a letter from the review applicant were provided’ (CB 215 [19]).
[10] Mr Hinton wrote to the Tribunal on 7 March 2013 as follows (CB 208);
‘I apologise for not being able to attend the MRT hearing as I am in an isolation ward at St George Hospital. I have no idea when I will be discharged as I was severely ill when I was hospitalised. I ask that (?) granted this appeal as I cannot leave the isolation ward but I can speak on the mobile phone.
Since I met my wife I knew that my step son Hoang Liem Tran is dependent on my wife. He relies on my wife for day to day living expenses. As far as I know, Liem was never properly trained in any proper job and as a result has helped his uncle and myself – manual (?) work for his uncle in a hotel and some (?) work for me when I have been in Vietnam. He was paid an allowance for doing these things. Liem has also undertaken on the job training at a hairdressing salon for a year which his mother paid for.
My wife has sent money monthly to Liem since her arrival in Australia so that he can survive in Vietnam.
I would appreciate favourable response in allowing Liem to come to Australia so that he can help the family business that is sending Australian products to Vietnam and other countries. I certainly need the/his(?) help as I will take a very long time to recover and Liem will be able to learn this business and the family can be one unit again. We all miss him and he will really help the situation I am in now.”
[11] The Tribunal decision was made on 8 May 2013.
THE TRIBUNAL DECISION
[12] The Tribunal was satisfied that Ms Nguyen met the requirements of dependency at the time of the visa application (CB 217-8 [38]). However, the Tribunal found ‘limited evidence’ of Mr Tran’s activities since late 2010 when he completed training at a barber shop (CB 218 [40]). It also noted that there was evidence of several money transfers to Mr Tran over the 13 months from 6 September 2011 to 21 October 2012, but no information that any other financial support was provided (CB 218 [41]).
[13] The Tribunal concluded that direct financial support for which there was evidence ceased six months before the decision. As that support, in the Tribunal’s view had ceased, it was not satisfied that at the time of the decision Mr Tran was wholly or substantially dependant on his mother for food, shelter and clothing for a substantial period, and therefore was not satisfied that he met the requirements of Cl. 309.321 of Schedule 2.”
[Errors in the original.]

Before the Court

At the hearing of this matter Mr L J Karp of counsel appeared for the applicant. Mr P Knowles of counsel appeared for the Minister. The Court had before it in evidence, the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), and written submissions filed by both parties.

Consideration

Ground One

Ground one of the application is in the following terms:
“1. The Tribunal acted in breach of section 358 of the Migration Act in failing to take into account a letter written by the applicant and dated 7 March 2013, and submitted to the Tribunal on 8 March 2013.”
Section 358 of the Act is in the following terms:
“358 Documents to be given to the Tribunal
(1) An applicant for review by the Tribunal may give the Tribunal:
(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
(2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.”
The relevant issue before the Tribunal in relation to the visa applicant was whether he was dependent on his mother (who had already been “approved” for the grant of a spouse visa) and thus met the relevant criteria (see [6] of the applicant’s submissions, above at [2]) for the grant of the visa.
The applicant’s argument was that his letter (see [10] of the applicant’s submissions, above at [2] and CB 208) went to the matter of the visa applicant’s on-going dependency, up to, and including, as at the date of the writing of the letter (7 March 2013). The allegation against the Tribunal was that it fell into jurisdictional error because it did not consider the contents of that letter, in circumstances where it was legally obliged to do so.
The questions posed for the Court, therefore, are, first, whether the Tribunal did fail to consider the letter, and second, if it did, whether, in the circumstances, such a failure would amount to jurisdictional error.
In relation to the first question, the applicant submits that the Tribunal made only one reference to the applicant’s letter in its decision record. This was merely to acknowledge that the letter, and submissions from the applicant’s representative, had been submitted to the Tribunal (see [19] at CB 215).
To make good this proposition the applicant referred to various parts of the Tribunal’s analysis and compared the “statements” it made with the evidence before it.
1)The first two sentences of [35] (at CB 217) refer to the statement made by the visa, not the review, applicant (see CB 174 to CB 175). The third sentence refers to a certificate reproduced at CB 188.
2)Paragraph 36 (at CB 217) refers to the visa applicant’s statement at [4] (at CB 174).
3)Paragraph 39 (at CB 218) refers to the visa applicant’s statement at [6] – [7] (CB 174).
4)Paragraph 40 (at CB 218) refers to the visa applicant’s statement at [7] – [8] (CB 175).
The applicant referred to [41] (at CB 218) of the Tribunal’s decision record:
“The evidence provided by the review applicant indicates that there have been several money transfers to the visa applicant between 6 September 2011 and 21 October 2012, a period of 13 months. There is no information that any other financial support has been provided.”
[Emphasis added.]
The applicant’s submission was that the last sentence was “incorrect” because in his statement the review applicant wrote that his wife had continued to send money to her son (the visa applicant) to help him survive in Vietnam up to the date of the letter. The applicant submitted that the Tribunal made no reference to this.
The applicant relied on the following to establish what is required of the Tribunal in considering evidence before it, pursuant to s.358 of the Act. He expressly relied on Tickner v Chapman [1995] FCA 1726; (2005) 57 FCR 451(“Tickner”) at 462 per Black CJ:
“The meaning of ‘considered’ used as a transitive verb referring to the consideration of something is given in the Oxford English Dictionary, 2nd ed. as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.’ Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”
and per Kiefel J at 495:
“To ‘consider’ is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view upon them.”
The applicant argued that the obvious implication arising from an applicant’s statutory duty to give a statement or argument to the Tribunal, is that the Tribunal must consider such evidence or argument (Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”) at [44]). Further, that “consider” in this context must be given the meaning explained in Tickner.
The Minister’s position was, first, to stress that the Tribunal did identify and refer to the letter in its decision record, so it cannot be said that it overlooked it.
Second, that the matters of substance, relevantly raised in the applicant’s letter, were addressed by the Tribunal. Those matters were identified as being the financial support to the visa applicant, the ongoing nature of that support from his mother, and the visa applicant’s work at a barbershop and for his uncle at a hotel.
In these circumstances, the Minister submitted that the Court should not lightly draw the inference that the Tribunal did not consider the letter. The Minister relied on WAEE at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Using this as a starting point, the following is relevant.
First, the Tribunal expressly recognised that the applicant’s letter was in evidence before it. Importantly, it did so in circumstances where the applicant’s representative conveyed his wishes that the review be “undertaken on the papers without a hearing” because the applicant was in hospital with “serious lung problems”.
The Tribunal’s reference to the letter (and the representative’s submissions) was not some mere tabulation of the material before it. It was a part of the express basis on which the Tribunal recognised and accepted the applicant’s wish as to how it was to proceed with the review ([19] at CB 215). It, therefore, proceeded to conduct the review in light of what was before it, which included, as the Tribunal expressed, the letter and the submissions.
In my view, this provides a foundation to find that the Tribunal “considered” the letter itself, in the sense that it accepted that it formed part of the basis for its subsequent analysis.
Second, the applicant drew attention to those parts of the Tribunal’s analysis where the Tribunal addressed the specific circumstances of the visa applicant in Vietnam. At its highest, his argument was that in its subsequent analysis there was no express reference to the letter. Therefore, the Tribunal did not “consider” the letter (in the Tickner sense) and the evidence in the letter.
However, I agree with the Minister that while the Tribunal made no express reference to the letter in those parts of its analysis, the substance of the matters raised in the letter were addressed (“considered”) by the Tribunal. The visa applicant, relevantly, claimed that he was, and had been, financially (and emotionally) dependent on his mother. He claimed that she had been paying all of his living expenses. The Tribunal understood that this was his claim (see [28] at CB 216). Further, the Tribunal noted the representative’s written submissions that “…[s]ince [the applicant’s mother] left for Australia, [she] has continued to provide for the visa applicant’s basic needs…” ([29] at CB 216).
Third, it is also of assistance to note the context of the provision of this letter to the Tribunal. The applicant’s letter was given to the Tribunal, “enclosed” with the representative’s written submissions (see CB 204 to CB 208). A number of things may be relevantly said.
One, any plain reading of those submissions (particularly what is reproduced at CB 206) reveals that the applicant’s letter says nothing new, nor adds to the applicant’s or the visa applicant’s claims, as expressed in the written submissions and elsewhere by the visa applicant.

Two, it is not clear whether the applicant’s letter was given to the Tribunal simply to support the “wish” that the Tribunal proceed “on [the] papers without a hearing” (CB 204.5). The representative’s letter, also containing submissions, states, immediately following the request to proceed without a hearing, and in the same opening paragraph “…[w]e have enclosed a letter from the Review Applicant for your perusal…” (CB 204.5). The letter then states (CB 204.5):
“…Further, we would like to attend to the central issue of the matter concerning the dependency requirement and kindly request that you consider the following submissions:…”
On one reading of this, it could be said that the applicant’s letter was not intended to form part of those submissions but served its intended purpose, in supporting the applicant’s wish that the review “proceed on the papers”.
However, even if what the representative stated in relation to the “central issue” in their submissions was also meant to include the Tribunal’s “perusal”, then any plain reading of those submissions (particularly at CB 206) reveals, as set out above, that the applicant’s letter says nothing new, nor adds to the applicant’s claims.
For example, later in the written submissions, and as reproduced below, the representative stated that the visa applicant’s mother was “still currently” the sole and substantial source of the applicant’s financial needs.
In the applicant’s letter, nothing new is added with the statement that the visa applicant is dependent on the applicant’s wife and that the visa applicant relies on her for living expenses.
Before the Court, the applicant emphasised in his submissions that the applicant’s letter, dated 7 March 2013, provided the only “evidence” that the visa applicant’s mother provided financial assistance to him beyond October 2012. He further submitted that s.358 of the Act required the Tribunal to consider this. The Tribunal’s failure to consider the letter, including the evidence as to the temporal extent of the financial support said to be in the letter, was, therefore, revelatory of jurisdictional error.
At best I understood the reference to “evidence” to be the statements in the letter, as follows (CB 208):
1)“…Hoang Liem Tran is dependent on my wife. He relies on my wife for day to day living expenses…”. This is identical to the written submissions at CB 206.8 (see below).
2)“…My wife has sent money monthly to Liem since her arrival in Australian so that he can survive in Vietnam…”. This adds nothing to the submissions that the visa applicant’s mother “is still currently” the visa applicant’s source of “financial support” (see above).
A number of further points must be made in relation to this. First, to the extent that the applicant emphasised that the applicant’s letter was “evidence” which, he says, was not considered, then any distinction between what is “evidence” as opposed to a “claim” must be seen in light of what was said in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]. Such a distinction:
“…might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”
(see also Minister for Immigration and Citizenship vSZRKT [2013] FCA 317; (2013) 212 FCR 99 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”)

at [68] – [70]).
The applicant’s characterisation before the Court of this material as “evidence” must be viewed as adding nothing further to the current analysis. While the material was fundamental to the Tribunal’s exercise, the Tribunal addressed the substance of the material. In this sense whether it is “evidence” does not give it any different character with additional consequence for the Tribunal’s exercise.
The statements in the applicant’s letter referring to the visa applicant’s mother’s ongoing support, whether they be classified as “claims”, “information”, submissions or, as the applicant now submits, “evidence”, were, at their highest, that the visa applicant’s mother continued to financially support him by sending him money and continued to do so up to the date of the letter.
Second, the applicant relies on the description of his letter as “evidence”, and as being the “only evidence” of continued financial support after October 2012. He uses this argument to impugn the Tribunal’s reasoning at [41] (at CB 218, see [11] above).
This directs close attention to what the Tribunal actually reasoned at [41] (at CB 218). The first sentence at [41] (at CB 218) is a reference to the corroborative evidence provided by the visa applicant in the form of the money transfers. The Tribunal’s finding as to the dates of these transfers is factually probative of the evidence provided by the applicant. It is important to note that the context of the Tribunal’s analysis here was directed to the question as to his mother’s financial support for the visa applicant. That is, the claim that he was financially dependent on her.
The reference to “no information” in the second sentence at [41] (at CB 218) is plainly, and certainly on a fair reading, a reference to there being no other evidence in the same vein as the corroborative evidence of the money transfers.
This does not provide the basis to say that the applicant’s statement of ongoing financial support of the visa applicant by his mother was not considered by the Tribunal. At [41] (at CB 218), the Tribunal was addressing the matter of the “evidence” or “information” or “material” put in support of the visa applicant’s claim that his mother provided ongoing financial support.
It did not need to specifically refer to the applicant’s statements in his letter in this regard. As stated above, the applicant’s statement was a repetition of the visa applicant’s own claim and said nothing more than what was in the representative’s written submissions with which it was “enclosed”.
The applicant made no claim before the Court that the Tribunal failed to consider, or overlooked, the representative’s written submissions. Those submissions, dated 8 March 2013 (that is, a day after the date of applicant’s letter) made plain:
“The dependent child’s mother has remained and is still currently the substantial, if not sole, source of his financial support for basic needs including clothes, food and shelter. Without such support, the child is reliant upon his mother for financial support for his basic needs. It is thereby compelling that Hoang Liem Tran remains the dependent child of his mother who has, since the dependent child’s birth, supported him financially for all his needs.”
[Emphasis in the original.]
In all, therefore, the Tribunal dealt with the applicant’s claim that the visa applicant’s mother had “continued to provide financial support…” for the visa applicant since she left for Australia in 2010 to the date of the Tribunal decision (see for example at [40] at CB 218). In context, the Tribunal’s consideration, when fairly read, proceeded on the basis that the claim of financial support was temporally ongoing to the time of the making of its decision.
As stated above, this claim was also repeated in the representative’s written submissions. The Tribunal specifically referred to this ([29] at CB 216) and it proceeded to consider the applicant’s claim in this light. There is nothing in the Tribunal’s decision record to say that it did not proceed in its consideration on this basis.
In this context, the Tribunal turned to consider the corroborative evidence before it. This was the evidence of the money transfers which the applicant’s representative had given to the Tribunal. When fairly read, the Tribunal’s finding (at [41] at CB 218) was that there was nothing of that nature before it (corroborative evidence by way of the money transfers) to show that the claim of financial support went beyond the period of 6 September 2011 to 21 October 2012.
Finally, I agree with the Minister’s submissions that it is the case that the onus is on the applicant to show that the assertions in the applicant’s letter were not considered by the Tribunal. It is not for the Minister to show they were not (Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] per Gummow J, [91] per Heydon J and [92] per Crennan J and see also MZYTS at [53]).
In all the circumstances, the applicant has not discharged this onus. Ground one is not made out. Given that conclusion, it is not necessary to consider the second element argued under this ground.

Ground Two

Ground two is in the following terms:
“2. The Tribunal failed to make an enquiry or invite the applicant to supply information necessary, in the circumstances of this case, to complete the exercise of its jurisdiction.
Particulars
(a) Failure to invite the applicant to update evidence of the support provided to Hoang Liem Tran by his spouse.”
Ground two asserts that the Tribunal failed to complete the exercise of its jurisdiction because it failed to make relevant inquiries of the applicant, or to invite the applicant to provide further evidence of the support provided by his wife to her son, the visa applicant.
At [42] the Tribunal stated (at CB 218):
“The legislative requirement is that the financial support be for the basic needs of food clothing and shelter. The payment of tuition fees by the primary visa applicant does not meet this requirement. The direct financial support of which there is evidence continued for 13 months in the approximately three years since the primary visa applicant left for Australia. It appears on the available evidence to have ceased six months ago. The total amount transferred is $2950.00 between 6 September 2011 and 21 October 2012. This is an average of approximately $225.00 a month. Based on the information before it, this is the amount on which the visa applicant relied for his basic needs. As this has now ceased, the Tribunal is not satisfied that, at the time of this decision, the visa applicant is wholly or substantially dependent on the primary visa applicant for food, shelter and clothing for a substantial period. The Tribunal is not satisfied that the visa applicant’s reliance on the primary visa applicant was greater than his reliance on any other person or source of financial support to meet his basic needs. The Tribunal is not satisfied that the visa applicant is the dependent child of the primary visa applicant. Consequently, the visa applicant does not satisfy the requirements of 1.12(1). He does not satisfy the requirements of cl.309.321.”
The applicant’s submission before the Court was that the Tribunal was not entitled to conclude that the financial support had ceased simply by relying on the transfer invoices and receipts of the money transfers that had been provided by the applicant’s representatives, in support of the claim that the visa applicant was financially dependent on his mother. I understood this submission to be put to the Court in the context of the representative’s submissions, the applicant’s letter and the visa applicant’s claims before the Tribunal that the mother’s financial support started in 2010 and was ongoing and “current”.
The applicant relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”) at [25]:
“…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…”
The applicant understood that a failure to inquire, on its own, did not lead to jurisdictional error being revealed. I agree with the applicant that what was said in SZIAI should not, respectfully, be taken to say there was a general duty to inquire. Rather, the applicant submitted that to lead to jurisdictional error, any such failure must produce a failure in the Tribunal’s undertaking of its jurisdictional task. The applicant illustrated this with reference to two cases.
First, Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 (“Le”) at [79] per Justice Kenny:
“…where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense”
Second, Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241 at [82] per Cowdroy J:
“The Court considers that the latter ground is relevant for the current circumstances. The Court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI. The Court does not consider that the Tribunal’s failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the Court prefers the view that the failure to make further inquiries of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a ‘rubber stamp’ for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal.”
The applicant’s argument was that the Tribunal accepted that there were particular records (the money transfers) which indicated financial support over a particular period. Those records were important because the “cessation” of those records as produced to the Tribunal, as at October 2012, led the Tribunal to find, at the time of decision, that the financial support had ceased and that the visa applicant was not financially dependent on his mother as at the relevant time.
In short, if there were further records they would have been “decisive” in the Tribunal’s analysis such as to provide a sufficient link to the outcome. Therefore, the Tribunal’s failure to ask for the records after October 2012 constituted a failure to complete the exercise of its jurisdiction. The argument was, also, that it was “obvious” that the inquiry should be made and that given that it was an inquiry of the applicant, as to whether there were any documents that could be “easily ascertained”.
The parties agreed (at least there was no dispute) that the matter of the money transfers was a critical fact in issue before the Tribunal. Further, there was no dispute that the existence of any further money transfer documents could have been “easily ascertained”.
The issue between the parties was whether the failure to make that inquiry could have supplied a sufficient link to the outcome to constitute a failure to review.
It is important to carefully note the direction provided by the High Court in SZIAI. The High Court allowed for the possibility that a failure to inquire may lead to a breach of the duty to review the delegate’s decision. However, it did not explore questions relevant to this (SZIAI at [25]). It disposed of the matter before it for two reasons. Only the first need concern us here. That is, that there was nothing in the circumstances presented “…to indicate that any further inquiry by the Tribunal…could have yielded a useful result” (SZIAI at [25]).
What must also be borne in mind, with respect, is as Kenny J said

in Le at [60]:
“…On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223…”
[Emphasis added.]
For the purposes of the current matter, in my respectful view, there is nothing in these authorities to dispute the proposition that although matters before the Tribunal do not involve any legal onus of proof, it is for the applicant to put forward such evidence such that the Tribunal can reach the requisite level of satisfaction that the visa must be granted (s.65 of the Act, Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 at [76], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45]).
In the current case, and in light of the above, I agree with the Minister’s argument that there was not a sufficient link to the outcome such as to say there was a failure to review.
First, the applicant does not say this was an inquiry to be made of any third party. If there was evidence available as to the existence of financial transfers after October 2012, the applicant now has not attempted to explain why he, the visa applicant, his wife, or the representative could not have supplied it to the Tribunal. Noting that the representative had supplied such evidence for the period up to October 2012.
Here the Minister’s reference to Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (“SZRTF”) at [48] provides relevant direction to this Court in similar circumstances. Noting, in particular, that the Court in that case found: (SZRTF at [48]).
“…there is no reason why, if evidence to support the pregnancy was available, SZRTF, herself, could not have supplied it. It was for her to provide the evidence in support of her claim.”
Second, there is nothing before the Court now to provide a basis to say that if the Tribunal had made that inquiry of the applicant (or even any one of the other “parties” in the matter before the Tribunal) that it would have had some relevance to, or impact on, the outcome of the review.
I agree with the Minister that it is not sufficient for the applicant to say that an inquiry by the Tribunal “may have” produced evidence, or information, of ongoing financial support of the visa applicant by his mother. The absence of any evidence now as to what impact the inquiry may have had on the outcome of the review leaves the outcome in the realms of speculation. That state of speculation is not consistent with what was said in SZIAI such that the applicant can now rely on it. As stated above, in SZIAI the High Court found that there needs to be “an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (SZIAI at [25]). The circumstances presented in this case, as presented to the Court, are absent such a “sufficient link”.
The applicant argued, before the Court, that the inquiry would have produced a “determinative outcome”. That is, if the Tribunal had asked if there were documents available for the period after October 2012, even if there were no documents to be produced, then the Tribunal could have proceeded on that basis and could be said to have properly completed the exercise of the review.
The difficulty for the applicant is that the challenge here should not be to a decision that the Tribunal “may have made”, but needs to be a challenge to the decision that it actually did make. The Tribunal found that at the time of the decision, it could not be satisfied, given the state of the evidence before it, that the visa applicant was, relevantly, financially dependent on his mother.

The applicant has not produced, or even made reference to, the existence of any evidence to assist in understanding what information the “obvious inquiry” would have gathered. In these circumstances, the Court is left with no basis on which to form a view that the obvious inquiry would have generated some evidence which may have led to the Tribunal making a different decision to the one that it actually made (with reference to SZIAI at [25]). The applicant’s argument presses for an inquiry to have been made without providing the basis to meet the circumstances envisaged by the High Court which may lead to a failure to conduct the review being made out. Ground two is not made out.

Conclusion

In all the circumstances, the applicant’s grounds before the Court do not reveal jurisdictional error in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 31 October 2014