Huynh v Minister for Immigration

[2019] FCCA 3693

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUYNH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3693

Catchwords:
MIGRATION – Partner (resident) (class BS subclass 801) visa –  Tribunal finding applicant not in exclusive relationship with sponsor – sponsor fathering two children with another woman during the marriage – Tribunal’s decision not disclosing jurisdictional error – application dismissed.

Legislation:

Migration Act 1958, ss.5CB, 5F, 360(1), 362A, 375A
Migration Regulations 1994, reg 1.15A, sch 2, cl 801.221(2)(c)

Cases cited:
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Nguyen v Minister for Immigration and Border Protection (2018) 329 FLR 351
Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374

First Applicant: THI TUY OANH HUYNH

Second Applicant: LE ICH TRI ANH HUYNH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1231 of 2016

Judgment of: Judge Burchardt

Hearing date: 15 November 2019

Date of Last Submission: 15 November 2019

Delivered at: Dandenong

Delivered on: 20 December 2019

REPRESENTATION

Counsel for the First  and Second Applicant: Mr A Aleksov

Solicitors for the Applicants: WLW Migration Lawyers

Counsel for the First Respondent: Ms C Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicants pay the First Respondent’s costs of the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1231 of 2016

THI TUY OANH HUYNH

First Applicant

And

LE ICH TRI ANH HUYNH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary

1. I should make an acknowledgement at the outset.  In preparing these reasons for judgment in respect of grounds 1-8, I have had the considerable benefit of draft reasons for judgment prepared by Justice Wilson prior to his appointment to the Family Court.  With his Honour’s permission I have relied extensively on those draft reasons in preparing this judgment.  Self-evidently, it is my judgment and all errors and infelicities are mine alone.

Introduction

1. By a further amended application filed on 9 February 2019, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 20 May 2016 by which the Tribunal affirmed a decision of the minister’s delegate to refuse the First Applicant a partner (resident) (class BS subclass 801) visa.  The Second Applicant is a child of the first applicant and need not be further considered.

2. The Applicant and her sponsor married in Australia on 14 November 2012. The Applicant and her husband (Mr Nguyen) acknowledged that Mr Nguyen had fathered two children with another woman whose name was given variously as Ms Le and Ms Huyhen. The Tribunal was not satisfied that the Applicant met the criteria in cl 801.221(2) of sch 2 to the Migration Regulations (“regulations”) nor the definition of “spouse” or “de facto” in ss 5F and 5CB of the Migration Act (“Act”).  The essential requirements for the purposes of cl 801.221 were addressed by White J in Nguyen v Minister for Immigration and Border Protection.[1]

   [1] [2018] FCA 1374

3. In the Applicant’s further amended application for judicial review, the Applicant advanced ten grounds.  At the hearing there was some confusion as to which grounds were pressed and which were abandoned. As I ultimately understand it, grounds 4-7 inclusive were not pressed.

Short factual narration

1. The Applicant is a female citizen of Vietnam.  On 17 December 2012 she applied for the visa and on 25 January 2013 she was granted a partner (subclass 820) (provisional) visa.  She made her application on the basis that she was in a spousal relationship with Mr Nguyen, an Australian citizen.  On 28 August 2014 an officer of the minister’s department conducted an interview with the Applicant and with Mr Nguyen.  On 10 September 2014 the Applicant and Mr Nguyen each provided a statement that addressed concerns the delegate raised during the interview held on 28 August 2014.  The Applicant and Mr Nguyen each acknowledged that Mr Nguyen had been involved with Ms Le at a time when the Applicant and Mr Nguyen said they were in a spousal relationship.  Mr Nguyen conceded he had fathered two children which Ms Le.

2. By decision dated 25 November 2014 the delegate refused to grant the Applicant the visa she sought.  The delegate found that the Second Applicant (the applicant’s teenage son to her first husband) was not eligible for the grant of a visa either.

3. The Applicant applied to the Tribunal on 4 December 2014.  On 10 May 2016, the Tribunal heard evidence and argument from the Applicant and from Mr Nguyen.  The Applicant was assisted by an interpreter.

4. On 20 May 2016, the Tribunal affirmed the delegate’s decision to not grant the Applicant the visa she sought. 

In the Tribunal

1. The Tribunal’s reasons were relatively short. It is necessary to examine the Tribunal’s treatment of the case in some little detail. 

2. Between paragraphs one to six of its reasons the Tribunal recorded details of the application to it, the Applicant’s details as well as those of her sponsor and of the secondary visa applicant (her teenage son of a different marriage), the applicability of pt 801 of sch 2 to the regulations, details of the hearing on 10 May 2016, the fact of the Applicant’s representation by her migration agent Dr Ngo and the ultimate conclusion in the case.

3. In paragraph seven of its reasons the tribunal recorded, correctly in my view, that the issue in the case was whether the Applicant was the spouse, as defined, of the sponsoring partner.

4. The tribunal recorded the elements of cl 801.221(2) and of s 5F in the context of Mr Nguyen as the “sponsoring partner” and in the context of the applicant and Mr Nguyen for the purposes of “spouse” in s 5F of the Act. The tribunal set out those issues in paragraphs eight and nine of its reasons. In paragraph 10 of its reasons the tribunal observed that in this case the Applicant and the sponsor were married to each other so the provisions of s 5F(2)(a) of the Act were met.

5. Between paragraphs 11 and 16 of its reasons, under the heading “Are the other requirements for a spousal relationship met?” the Tribunal addressed what it termed “all the circumstances of the Applicant’s relationship with the sponsoring partner” at the time of the tribunal’s decision, especially the considerations as set out in reg 1.15A for spousal relationships. In reference to the applicant and Mr Nguyen, the Tribunal stated –

   a)as at May 2016, the Applicant was 40 years of age whereas Mr Nguyen was 48 years of age;

   b)they claim they met in Saigon in October or November 2006 at a shop where the Applicant was selling her paintings and a week later at an airport when Mr Nguyen was returning to Australia;

   c)thereafter the Applicant stated she and Mr Nguyen continued to get to know one another during telephone calls;

   d)in 2008 Mr Nguyen returned to Vietnam;

   e)on 23 June 2008 Mr Nguyen asked the Applicant to marry him;

   f)the Applicant arrived in Australia in March 2012;

   g)the Applicant and Mr Nguyen married in November 2012; and

   h)the Applicant lodged her partner visa application on 17 December 2012.

6. So far as Mr Nguyen was concerned, the Tribunal recorded several issues of relevance to his previous marriage to Ms Le with whom Mr Nguyen had two children.  At paragraph 13 of its reasons, the Tribunal observed that Mr Nguyen and Ms Le divorced, that on Mr Nguyen’s evidence his relationship with Ms Le ceased in 2011, yet since that date, Mr Nguyen fathered two children with Ms Le.  In paragraph 14 of its reasons, the Tribunal recorded the following –

   The sponsor had two children with Ms Huyhen during the period of time the applicant and sponsor claim to have been in a spousal relationship.  That the sponsor had two children with Ms Huyhen is not denied.

7. In paragraph 15 of its reasons, the Tribunal addressed the phenomenon of the applicant’s cohabitation with Mr Nguyen and their raising of the Applicant’s teenage son.  The Tribunal said the following –

   The above information also suggests that that the parties cohabitate and share the raising of the secondary applicant. The information at face value also suggests that the parties represent themselves to other people as being married to each other. The information also indicates that various friends see the relationship as being a married one. The parties’ oral evidence suggests that they provide each other with companionship and emotional support and that they have some future plans and see the relationship as long-term.

8. The Tribunal went on to say, however, in paragraph 16 of its reasons:

   However there is other evidence and information concerning whether the applicant and sponsor's relationship is mutually exclusive. In this regard the Tribunal notes the evidence in that the sponsor and his “former” girlfriend Ms Huyhen have two children, born 2010 and 2014, during the period the parties claim to have developed and commenced their relationship.

9. Between paragraphs 17 and 22 of its reasons the Tribunal considered the financial aspects of the applicant’s relationship with Mr Nguyen.  In those paragraphs, the Tribunal stated –

   a)bank records did not demonstrate any pattern of use of the Applicant’s and Mr Nguyen’s joint account to pay household expenses;

   b)the sponsor financially supported Ms Le who does not work, that Ms Le lived in a property owned by the sponsor, that Mr Nguyen provides Ms Le with between $300 to $500 per week depending on needs;

   c)the Applicant worked for 10 hours per day running the sponsor’s noodle shop for which she was not paid a wage; and

   d)the sponsor gave the Applicant money when she needed it.

10. In paragraph 21 of its reasons, the Tribunal stated it did not accept that sufficient evidence existed to show that the Applicant and the sponsor pooled their financial resources and shared their day to day household expenses in a way that indicated that they were in a genuine marriage.

11. Between paragraphs 23 and 30 of its reasons, the Tribunal addressed factual matters relevant to the nature of the Applicant’s and the sponsor’s household.  Among the matters on which the Tribunal focused were the following –

    a)Mr Nguyen’s two sons born to Ms Le lived in the sponsor’s St Albans property;

    b)Mr Nguyen saw his two sons born to Ms Le three or four times per week although the applicant did not see those children even though Ms Le dropped her sons at the noodle shop;

    c)the Tribunal regarded the sponsor’s evidence about the venue at which Mr Nguyen saw his sons as being inconsistent from which inconsistency the tribunal said it drew a negative inference; and

    d)the Tribunal explained the inconsistency in the penultimate and final sentence of paragraph 26.

12. Paragraph 29 of the Tribunal’s reasons contain typographical and grammatical errors.  Nothing turned on those.  Similarly, in paragraph 30 the first three sentences were recitals of claims and how the Tribunal heard evidence from the Applicant, the sponsor and four other witnesses.  The Tribunal did not name those witnesses in that paragraph.  The hearing record sheet at court book page 545 did not reveal the existence of four witnesses additional to the applicant and the sponsor.  That document revealed that the Applicant gave evidence as did her teenage son and the sponsor.  The hearing record also referred to Dr Ngo in attendance as well as a translator.  That amounted to three witnesses in total, not six as paragraph 30 stated.  It does not strike me that anything turned on that error.  Paragraph 30 of the Tribunal’s reasons also revealed a different date on which the Applicant and the sponsor married, namely 17 October 2011, whereas paragraphs 10 and 12 of the Tribunal’s reasons, the date of the applicant’s marriage to the sponsor was given as November 2012 and that Mr Nguyen’s relationship with Ms Le ceased in 2011, as paragraph 13 of the tribunal’s reasons recorded.  Aside from those errors as to dates, in paragraph 30 of its reasons the Tribunal recited that the Applicant and the sponsor claimed that they lived together since their marriage.  That accorded with the evidence each gave.

13. Between paragraphs 31 and 33 of its reasons, the Tribunal addressed the social aspects of the Applicant’s and her sponsor’s relationship.  Several matters emerged from those paragraphs, including the following –

    a)the Tribunal placed some weight on photographs and statutory declarations submitted in support;

    b)the Tribunal took the view that no evidence was provided from sources such as schools and kindergartens where the applicant and sponsor were recognised as a couple and they had not taken holidays together; and

    c)the sponsor told the Tribunal he and the Applicant had attended funerals together in Vietnam and Sydney and that when he attended a stone laying ceremony for a Mekong nursing home he did not take the Applicant.

14. Between paragraphs 34 and 47, the Tribunal addressed the nature of the commitment to each other as between the Applicant and her sponsor.  Relevantly distilled, the more important findings on which the Tribunal proceeded are set out below –

    a)the Tribunal recorded that after meeting in 2006 in Vietnam and upon the sponsor returning to Australia, the Applicant and the sponsor spoke by telephone every day on two to three occasions each day;

    b)the Tribunal also recorded that the Applicant and sponsor became engaged on 23 June 2008 and in March 2012 the Applicant arrived in Australia, meaning from inception, the Applicant’s relationship with the sponsor was concurrent with the sponsor’s relationship with Ms Le;

    c)after arriving in Australia the applicant commenced working in the sponsor’s noodle shop and, by reason of being so busy, the applicant did not get around to marriage until being reminded to do so by the department, which she did in November 2012 after which, so the applicant said, they had lived together ever since;

    d)after the Applicant arrived in Australia, in March 2012 the sponsor admitted to the Applicant that he had betrayed the Applicant by having children with Ms Le;

    e)the Applicant endeavoured to explain to the tribunal why Ms Le was living with the sponsor and the Applicant in the sponsor’s St Albans home;

    f)the Tribunal recorded that the Applicant gave evidence that when the Applicant arrived in Australia in 2012, Ms Le’s son (born in 2010) was living at the St Albans address but that Ms Le did not live at that address until early 2014 and that the Tribunal found it implausible that the infant son was living away from his mother as asserted;

    g)the Tribunal recorded the Applicant’s evidence about why she tolerated the sponsor’s apparent infidelity to the effect that the applicant did not know what else to do; and

    h)the Tribunal recorded that the sponsor gave evidence that he told the applicant about his relationship with Ms Le while in Vietnam prior to the grant of the Applicant’s partner (temporary) (subclass 820) visa in last January 2013.

15. In paragraph 43, the Tribunal recorded its concern that the Applicant and the sponsor were in an exclusive relationship.  The Tribunal said that it did not accept that the Applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others.

16. The Tribunal found that the Applicant did not meet cl 801.221(2)(c) of the Regulations.

17. The Tribunal affirmed the delegate’s decision not to grant the visa.

Ground One

The Tribunal failed to apply the correct test in relation to s5F(2)(c) of the Migration Act 1958 (Cth), in that the relevant “exclusiveness” is as to the legal status of “husband and wife” (in the sense of excluding polygamy and not the fairy-tale or Hollywood notion of a happy marriage).

1. The Applicant’s written submissions were in the following terms:

   4.  The Tribunal was not satisfied that the applicant and her husband had a mutual commitment to a shared life as husband and wife to the exclusion of all others as required by s 5F(2)(b), apparently because of concerns that the husband might have some kind of “relationship” with Ms Huyhen.

   5   That finding was based on a misunderstanding of the correct meaning of s 5F(2)(b).

   6   As shown in Ghazel & Ghazel (2016) 54 Fam LR 432, the expression “to the exclusion of all others” when used in a legal context concerning marriage, should be understood as taking on a technical meaning which excludes polygamous marriages.

   7   Adopting that understanding of s 5F(2)(b), the existence of an adulterous relationship was not, of itself, probative. The relevant question was whether the applicant and her husband had a commitment to a relationship that had the status of “husband and wife”, and that this status was exclusive as between the two of them (and would not involve any legal or de facto polygamy).

   8   Adultery would not preclude the relationship from meeting the criteria in s 5F(2)(b) (or s 5F more generally). Nor would extensive adultery, even if there are children born of that adultery. History teaches us that many men and women have adulterous relationships for their own reasons, yet also maintain a socially acceptable marital relationship; especially so for people of high status (eg, monarchs).

   9   The probative value of any adulterous relationship was limited to examining whether:

   9.1    the nature of the adulterous relationship affected the claim that the applicant and her husband had a “commitment” to a shared life of a particular character – that character being that they would respectively acknowledge their status, vis-à-vis each other, as being that of “husband and wife”; and

   9.2    whether that adulterous relationship affected the claim that the status claimed by the applicant and her husband was that of husband and wife.

   10 However, the Tribunal did not make any findings about the nature of the adulterous relationship nor did it turn its attention to any impact of such an adulterous relationship upon the claimed commitment as described in paragraph 9.1 above, nor the claimed status described in paragraph 9.2 above. This reveals that the Tribunal did not apply the correct meaning of s 5F(2)(b).

2. In support of this ground, counsel for the Applicant called in aid a decision of the Family Court of Australia to the effect that polygamous marriages are excluded from the context of marriage. He also submitted that adultery would not preclude a relationship from meeting the criteria in s 5F(2)(b) or s 5CB of the Act more generally nor even “extensive adultery”. This was because:

   History teaches us that many men and woman have adulterous relationships for their own reasons, yet also maintain a socially acceptable marital relationship; especially so for people of high status.

3. In developing that submission, counsel for the Applicant contended that the phrase “to the exclusion of all others” was to be understood as meaning the exclusivity of the status of the relationship of husband and wife and not to the exclusivity of the inter-human relationship.  He said the thing which is to be excluded is the status of husband and wife.

4. On behalf of the minister, Ms Catherine Symons of counsel submitted that the Tribunal resolved in the Applicant’s favour that the Applicant and her sponsor were married and were “spouse” of one another “in a married relationship” for the purposes of s 5F of the Act. Ms Symons advanced the contention that the inquiry to which reg 1.15A was directed related to the underlying relationship between the relevant two persons. Contrary to the submission advanced by the Applicant, Ms Symons said that s 5F(2)(b) of the Act was not directed to the exclusivity of the status of the relationship.

1. It seems to me that in relation to this ground the Tribunal made no error. It was required to examine the domestic relationship between the applicant and the sponsor against the considerations set out in s 5F of the Act and reg.1.15A of the Regulations. The concept of exclusivity was one consideration. I reject the contention urged by the Applicant that in undertaking that task the Tribunal somehow adopted “the fairy-tale or Hollywood notion of a happy marriage” as appeared in the wording of this ground. In my view the Tribunal was entitled to reach the conclusion that it reached in relation to the concept of “exclusive”. The evidence revealed that the sponsor fathered two children with Ms Le at a time he was married to the Applicant. It was true that the sponsor was not married to Ms Le at that time and so the sponsor was not concurrently married to two persons. However, in fathering two children to Ms Le, it could scarcely be said that the sponsor was simultaneously committed exclusively to his union with the applicant. In my view, the Applicant’s creative and unrealistic characterisation of the facts of this case was misdirected. In my view the Tribunal made no error in the manner suggested under ground one. This ground was devoid of merit.

Ground two

Tribunal failed to give any reasons about why it did not accept that sufficient evidence existed that the applicant and the sponsor pooled their finances to indicate they were in a genuine marriage, from which it is to be inferred that it did not have any lawful reason for doing so.

1. Under this ground the Applicant focused on paragraph 21 of the Tribunal’s reasons.  The Applicant asserted that the Tribunal failed to give any reasons about why it did not accept that sufficient evidence existed that the Applicant and the sponsor pooled their finances to indicate they were in a genuine marriage.  In her written submissions, the Applicant contended that the evidence revealed a degree of financial intermingling between the Applicant and the sponsor.  The Applicant’s counsel said the Applicant worked at the sponsor’s noodle shop and evidence revealed that the sponsor gave the Applicant money from time to time.  It was put that the conclusion expressed in paragraph 21 of the Tribunal’s reasons was given without explication in circumstances where probative evidence to the contrary existed. 

2. The first respondent submitted the conclusion at paragraph 21 of the Tribunal’s reasons was open.  Ms Symons of counsel argued that the Tribunal’s reasoning for the conclusion that the Applicant did not pool their financial resources was based on the Tribunal’s examination of bank statements and the evidence referred to at paragraph 19 provided by the applicant to the effect that she had no income to pool. 

3. I accept this submission.

4. This ground was underpinned by a contention that the Tribunal did not give “any reasons”.  That was incorrect.  The conclusion was reasoned by at least two things, both of which were narrated by the Tribunal.  The first was that the Applicant had no assets to pool and the second was that the bank statements revealed no pooling.  Those findings were open.  To my mind, the Applicant’s submission at paragraph 14 of counsel’s written submissions missed the point.  Whether or not the sponsor contributed financially to his children born to Ms Le was irrelevant to the question whether the sponsor and the applicant pool their resources.  The Tribunal was not satisfied they did.  I detect no error in its conclusion.

Ground three

The Tribunal failed to explain what “negative inference” was made against the Applicant and her husband or how this negative inference affected the decision, from which it is to be inferred that the Tribunal did not lawfully perform its function of review in this respect.

1. Under this ground, the Applicant took issue with the Tribunal’s use of the words “negative inference” mentioned in paragraph 26 of the Tribunal’s reasons.  The negative inference arose, according to paragraph 26 of the reasons, from the inconsistent nature of the sponsor’s evidence about where the sponsor saw his children.  In that paragraph the Tribunal stated that the Applicant first said the sponsor did not visit Ms Le’s house where the sponsor’s children lived.  The Tribunal said the sponsor’s evidence was that the sponsor visited Ms Le’s house (although the Tribunal did not say that he went to her house for the purpose of visiting his children) on a weekly basis.  The Tribunal then said that the Applicant changed her evidence by agreeing with the sponsor’s evidence.  From that the Tribunal said it drew a negative inference.  I read that phrase to mean that the Tribunal dealt with the Applicant’s evidence on point on the basis that it was unreliable or implausible or otherwise to be rejected.  There was no error in the Tribunal reaching that conclusion.  The Applicant initially said the sponsor did not visit the house where his children live.  That was an uncomplicated straightforward statement.  It could not be misunderstood.  The Applicant then said, in an entirely contradictory and diametrically opposite way that the sponsor visited his children’s home three times a week.  Such a reversal of evidence pointed squarely to the Applicant’s overall veracity.  The Tribunal was entitled to look ascant at her evidence on that issue as well as at her overall reliability from that one piece of evidence.

Ground eight

The Tribunal failed to consider mandatory relevant considerations, being any, or any combination of, the matters set out in reg.1.15A(3)(a)(i), (a)(ii), (a)(iv), (a)(v), (b)(i),(b)(iii),(c)(ii),(c)(iii),(d)(iii) or (d)(iv).

1. Under this ground, the Applicant asserted that the Tribunal failed to consider a collection of mandatory considerations set out in reg.1.15A(3) of the regulations. On behalf of the Applicant, it was put that the Federal Court’s decision in Nguyen and He v Minister for Immigration and Border Protection[2] held that all of the subparagraphs must be the subject of separate consideration and that here, they were not with the consequence that the Tribunal thereby fell into jurisdictional error.

   [2] (2017) 255 FCR 41

2. I do not agree.

3. Of reg.1.15A(3), White J addressed those requirements in Nguyen. 

   
   

   I accept that the following propositions emerge (see first respondent’s written submissions at paragraph 45):

   (a)the matters set out in r 1.15A(3) are relevant considerations which the decision-maker is bound to consider, at [52];

   (b)this requires the decision-maker to bring an active intellectual process to each matter, giving proper, genuine and realistic consideration to each, at [52];

   (c)the requirement that the Tribunal “consider” the circumstance in r 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The legislative intention is that the enumerated matters must be addressed, and not merely thought about, al [76]-[77]. However, it is not necessary for the Tribunal to address each of the enumerated matters in a formulaic manner. Nor is it necessary that it make findings upon every piece of evidence bearing upon an enumerated matter. Nevertheless, the Tribunal is required to make findings upon the matters enumerated in r 1.15A(3), at [82]-[83]; and

   (d)the failure by the Tribunal to set out in its reasons a finding concerning any of the .enumerated matters may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process in arriving at the decision, at [79].

4. The first respondent further submitted that the Full Court in He approved of Charlesworth J’s statement in Singh to the effect that the Tribunal’s task is impressionistic and evaluative and its reasons are not to be construed minutely and finally with an eye attuned to the perception of error. I agree that the applicant’s approach to reg.1.15A(3) admitted that approach. The Tribunal considered the financial aspects of the relationship as it was required to do. The Tribunal considered the nature of the household, as required. The Tribunal considered the social aspects of the relationship, as required. The Tribunal considered the nature of the couple’s commitment to each, as required. Against that backdrop, the first respondent’s written submissions conclude at paragraph 52:

   The Tribunal's findings reflected an overriding concern that coextensive with the inception and development of the relationship between the applicant and her sponsor, the sponsor was in a relationship with Ms Huyhen. The Tribunal also expressed concerns about the consistency of evidence provided by the applicant on this subject. Against this background, the Tribunal considered each of the paragraph (d) matters, including the parties' evidence that they provided support to each other 'through the challenges of life over some 20 years’ ([42]) and that they claimed their relationship was a long term one ([43]).

5. In my opinion, this submission is correct.

Grounds nine and ten

The Tribunal failed to comply with s362A, in that it failed to give the Applicant material covered by an invalid certificate issued under s375A.

Alternatively, by reason of the matter in ground 1 above, the Tribunal did not comply with s360(1), in that the hearing was unfair because the Applicant had not been provided with access to all material as required under s362A.

1. The Applicant’s complaints under grounds nine and ten were dealt with together.

2. Counsel submitted that the Tribunal had the certificate and failed to give it to the Applicant. Nor was the Applicant given the underlying material. Folios 50-56 were not provided. These are at pages 38-44 to the Affidavit of Isabelle Lulu Minnett sworn 1 November 2019. Essentially the point made was that what was referred to as the ‘dob in’ information was not given to the Applicant and should have been. It is submitted that the Applicant could have called the mystery man, the person of interest 3, referred to in that material. It was further submitted that there was no evidence to support the certificate which meant that it was not valid.

3. Counsel for the first respondent submitted that the Applicant had sought the information under the Freedom of Information legislation. Information provided to the Applicant at page 51 of Ms Minnett’s Affidavit identified the four persons referred to in the ‘dob in’ information and also referred to incorrect information on birth certificates. At the most it is submitted that there had been a failure to identify that money had been paid which caused both certificates to be issued. Counsel laid emphasis on the decision of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In particular, the First Respondent’s written submissions referred to the judgment of the plurality (Bell, Gageler and Keane JJ) at [45]-[46] when their Honours said:

   45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error.  A breach is material to a decision only if compliance could realistically have resulted in a different decision. 

   46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.  Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. 

4. In my opinion, the material that the Applicant unquestionably obtained in 2015 sufficiently disclosed to her the gravamen of the information that the Tribunal ultimately had before it. Even if she had had the materials that were not provided, I do not think that further evidence would have made any difference. The reason for this is in a sense an overarching one.

5. The legislation required the Applicant to be in a spousal relationship to the exclusion of all others. During this time, the sponsor had two children with another woman who did not work, continued to live in a property owned by the sponsor and received regular financial support from him. While skilfully put, the submissions of the applicant have about them, in my opinion, something of the absurd. The fact that the Tribunal in the face of the established facts concluded that the Applicant was not in a spousal relationship to the exclusion of all others, is utterly unsurprising. It was a finding well open to the Tribunal to make. Indeed, in the face of those considerations, any other outcome was in my opinion in no wise ever likely.

Conclusion

1. None of the grounds of the application have been made out and the application will be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of his Honour Judge Burchardt.

Associate:

Date: 20 December 2019