Jiang v Minister for Immigration
[2016] FCCA 2093
•3 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIANG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2093 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – child visa – estoppel and inconsistency of Administrative Appeals Tribunal decisions – issue estoppel – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359AA, 430 Migration Regulations 1994 (Cth) |
| AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131 Carl Zeiss Sifting v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 Chan v Minister for Immigration and Multicultural Affairs [1998] FCA 1357 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Craig v South Australia (1995) 184 CLR 163 Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37 Kuligowski v Metrobus (2004) 220 CLR 363 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration v Wang (2003) 215 CLR 518 NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791 Soboleva v Minister for Immigration and Multicultuural Affairs (2001) 113 FCR 353 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 323 ALR 1 |
| First Applicant: | MINRONG JIANG |
| Second Applicant: | STEVEN JIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3463 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Cutler of Counsel. |
| Solicitors for the Applicants: | Cathay Lawyers. |
| Counsel for the Respondents: | Mr G Johnson of Counsel. |
| Solicitors for the Respondents: | Mills Oakley Lawyers. |
THE COURT ORDERS AS FOLLOWS:
The Application filed in this Court on 21 December 2015 is dismissed, with costs to be determined.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3463 of 2015
| MINRONG JIANG |
First Applicant
| STEVEN JIANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Nature of Proceeding
The first and second applicants are mother and son. By Application filed in this Court on 21 December 2015 they seek, by constitutional writs, to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 11 December 2015, which affirmed a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister or Department), dated 13 February 2015, refusing to grant to them a Child (Residence) (Class BT) Child (Subclass 802) visa (Child Visa).
Background
The first named applicant (Applicant) is a female citizen of China aged 26 years, having been born on 2 June 1990. The second applicant is the Applicant’s son, who was born on 26 November 2014 and was subsequently included on the Child Visa application as a member of the Applicant’s family unit.
On 6 January 2012 the Applicant was granted a Spouse visa as a dependent on her father’s successful Spouse visa application. She arrived in Australia on 4 February 2012, but the father’s visa was cancelled on 27 March 2014 and as a consequence the Applicant’s Spouse visa was also cancelled.
Before her arrival in Australia she had on two occasions (namely in March 2007 and January 2008) been refused the grant of a Student visa for providing fraudulent documents.
On 1 August 2014 the Applicant applied for the grant of a Child Visa on the basis of being a dependent child of her sponsor who was her mother, Ms Wen Hua Lin.
Application for a Prospective Spouse Visa by Mr Gao Yong
On 16 October 2012, Mr Gao Yong (Mr Gao) applied in Guangzhou, China for a Prospective Marriage (Class TO) Subclass 300 visa (Prospective marriage visa) which was sponsored by the Applicant as the intended spouse of Mr Gao, as required by cl.300.213 of the Migration Regulations 1994 (Cth) (Regulations).
In support of his application for the Prospective marriage visa, Mr Gao attended a face to face interview with a Delegate (Mr Gao’s Delegate) of the Minister in Guangzhou and the Applicant was interviewed by Mr Gao’s Delegate by telephone.
By her Decision Record dated 12 November 2013, Mr Gao’s Delegate refused his application. It had been necessary both at time of application and time of decision under cl.300.216 and cl.300.221 for him to satisfy Mr Gao’s Delegate that the Applicant and he genuinely intended to live together as spouses. They both claimed to have met in person on 13 April 2012 and become engaged on 6 August 2012 and intended to marry in Australia on 24 September 2013.
It is unnecessary for me to set out in detail the considerations behind Mr Gao’s Delegate’s decision to refuse Mr Gao the Prospective marriage visa. It suffices to say that Mr Gao’s Delegate referred to Mr Gao as being a 28 year old male residing in China and that the Applicant was a 23 year old female then residing in Lidcombe, NSW. Mr Gao’s Delegate considered the factors that she was entitled but not required to take into account under reg.1.15A(3) of the Regulations, including the financial aspects of the asserted relationship, the nature of the household and the social aspects of the relationship. Mr Gao’s Delegate regarded Mr Gao and the Applicant as having provided vague and inconsistent information about the development of their claimed relationship, which cast doubt in Mr Gao’s Delegate’s mind on the genuine nature of the parties’ claimed relationship and their intentions for the future. Mr Gao’s Delegate was not satisfied that Mr Gao and the Applicant had shown that they provided one another with companionship and emotional support, and that they saw the relationship as a long term one. Mr Gao’s Delegate was further not satisfied that Mr Gao and the Applicant intended to live together as spouses.
Accordingly, Mr Gao’s Delegate was not satisfied that the prescribed criteria for the grant of the Prospective marriage visa had been met and refused Mr Gao’s application for such a visa.
Mr Gao did not seek merits review of Mr Gao’s Delegate’s decision.
Application for Child Visa
As recited above at paragraph 5, on 1 August 2014 the Applicant applied for a Child Visa on the basis of being a dependent of her sponsor for the Child Visa, who was her mother, Ms Wen Hua Lin.
Relevantly, under sub-cl.802.212(1) she had to be at time of application a “dependent child” of a person who was an Australian citizen, holder of a permanent visa or eligible New Zealand citizen, and who had not turned 25 years of age unless incapacitated for work due to the total or partial loss of his or her bodily or mental functions (this exception being derived from the definition of “dependent child”, extracted below).
As the Applicant had turned 18 years of age, her application for the Child Visa was subject to cl.802.214 at time of application (and continuing until time of decision as required by sub-cl.802.221(1)(b)), which was as follows:
802.214
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full‑time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
“Dependent child” is defined in reg.1.03 as:
the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.
Accordingly, the Applicant had to show that she was not engaged to be married and did not have a spouse or de facto partner and had never had a spouse or de facto partner.
Decision of Delegate
The Delegate, in her Decision Record of 13 February 2015, refused the Applicant’s application for the Child Visa because she found that she was not satisfied that the Applicant was not engaged to be married and, therefore, the Applicant did not meet cl.802.214(1)(a). In effect the Delegate found that the Applicant was engaged to Mr Gao.
In her Decision Record, the Delegate considered a body of evidence, including that the Applicant had sponsored the application by Mr Gao for his Prospective marriage visa and the grounds for that refusal, namely that Mr Gao’s Delegate not been satisfied that Mr Gao and the Applicant genuinely intended to live together as spouses.
The Delegate refused the second applicant’s application for a Child Residence visa as a dependent child of the Applicant because there was non-compliance with cl.802.321 which required the second applicant to be a member of the family unit of a person, in this instance the Applicant, who satisfied the primary criteria and was the holder of a Subclass 802 visa. As the Applicant had not satisfied the primary criteria for the grant of the Child Visa and it had been refused, the application by the second applicant was necessarily therefore also refused.
Application for Review to the Tribunal of Delegate’s Decision
The Applicant sought review of the Delegate’s decision by application made to the Tribunal on 14 February 2015. On 15 October 2015 the Tribunal invited the Applicants to appear before it to give evidence and present arguments at a hearing scheduled for 2 December 2015, at which the Applicants did appear. On 17 November 2015 the Applicant’s registered migration agent provided a pre-hearing submission to the Tribunal which attached the Decision Record of Mr Gao’s Delegate dated 12 November 2013 refusing the Prospective marriage visa application of Mr Gao.
In conducting its review, the Tribunal correctly noted that the issue in the review was whether the Applicant was the dependent child of her sponsor, her mother, Ms Wen Hua Lin. The Tribunal took evidence from the Applicant herself and from Ms Lin.
It should be noted that the Tribunal put to the Applicant, pursuant to s.359AA of the Act, the documents on the Department’s file in relation to her sponsorship of Mr Gao’s application for a Prospective marriage visa, which indicated that she was committed to and in love with him. The Tribunal also put to the Applicant, pursuant to s.359AA of the Act, that she previously had two Student visa applications refused, contrary to her oral answer to the Tribunal in which she had said that she had “never” been refused a visa. The Tribunal indicated that the Applicant did not have to answer any questions in relation to either of these issues and could request an adjournment, but the Applicant elected to proceed.
In the result, the Tribunal found that the Applicant was not a truthful witness and that her evidence to the Tribunal was evasive and inconsistent and that she was not a witness of credit.
Importantly, having stated that cl. 802.214(1)(a) required the Applicant not to be engaged to be married, the Tribunal found that in sponsoring the application of Mr Gao, the Applicant had claimed that she intended to maintain a lasting relationship with him and had provided sworn documents indicating she was committed to that relationship and engaged to be married on 24 September 2013. The Tribunal contrasted that evidence with her present assertion that the Applicant had only agreed to sponsor Mr Gao because of her parents’ request, and that she did not intend to marry him. As I have said above, the Tribunal did not believe her and found her not to be a truthful witness. The Tribunal did not accept that the relationship with Mr Gao had ended and was not satisfied that she was not in a continuing relationship and engaged to him. The Tribunal accordingly found that both at the time of application and the time of the decision, cl.802.214(1)(a) was not met by the Applicant and therefore affirmed the decision of the Delegate not to grant the Applicant a Child visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds in the Amended Application filed on 3 March 2016 are as follows:
1. The Tribunal took into account an irrelevant matter.
Particulars
The First Applicant’s travel to China and the birth of her child are not indicative of the factors in cl.802.214(1)(a).
2. The Tribunal failed to consider:
a. the previous rejection of the Applicant’s application to sponsor a partner; and
b. regulation 1.15A.
3. In the alternative to 2, the Tribunal is estopped (or alternatively it is unreasonable) from making inconsistent decisions in relation to the First Applicant’s relationship status.
Before considering each of these three Grounds I interpolate that Mr Cutler of Counsel who appeared for the applicants prefaced his submissions at the hearing by giving an executive summary of his argument as being inconsistent decision making.
Consideration of Grounds
Ground 1
It is clear that jurisdictional error may result if an administrative tribunal relies on irrelevant material: Craig v South Australia (1995) 184 CLR 163 at 179.
Under this Ground, the Applicant asserts that her travel to China from January to March 2015 and the birth of her child were neither indicative of nor relevant to consideration of whether she was engaged to Mr Gao and therefore whether she met cl.802.214(1)(a).
At the hearing, the scope of this Ground was refined and argued on the basis of paragraphs 57 and 58 of the Tribunal’s Decision Record which were as follows:
57.The applicant claims at the hearing that she never had any intention to marry the person she was engaged to. However, her statement is that a few weeks after this present application was refused she returned to China. She claims they argued and then agreed to end the relationship. She returned to Australia on the day her BC 100 visa was cancelled. [emphasis supplied]
58.The Tribunal has formed the belief that she returned after the partner visa was refused to continue her relationship. The Tribunal does not accept that she would have argued if she had not been in a relationship. The Tribunal finds that she only re-entered Australia when she was notified that her visa was being cancelled.
The obvious sense to be given to the reference in paragraph 57 to the refusal of “this present application” would be to the Delegate’s refusal on 13 February 2015 of a Child visa to the Applicant under review by the Tribunal. This sense would mean that the Tribunal could have erroneously been under the impression that the Applicant had claimed that any relationship between Mr Gao and her only ended as late as March 2015.
However, after further debate and consideration at the hearing, Mr Cutler very fairly and properly accepted and thus it became common ground, that by reason of either some typographical error or infelicity of expression the reference in paragraph 57 to “this present application” was in truth a reference to Mr Gao’s Delegate’s decision (and after which some 7 weeks later the Applicant did indeed travel to China on 2 January 2014). Accordingly, in my view it follows that the Tribunal was not under a mistaken belief that any relationship with Mr Gao had extended until March 2015 but rather understood from paragraph 7 of the Applicant’s statutory declaration of 8 January 2015 that it was the Applicant’s case that any such relationship, such as it was, had ended in approximately February 2014. Therefore, Ground 1 must fail because the Tribunal has not irrelevantly taken into account the Applicant’s travel to China from January to March 2015 or the birth of her child. On the latter matter it is true that the Tribunal questioned the Applicant about the identity of the father of her child, but in the result it did not make a positive finding as to whether Mr Gao or another person was the father.
Ground 2
It can also constitute jurisdictional error for an administrative tribunal to ignore relevant material.
Under Ground 2, it is asserted by the Applicant that the Tribunal “failed to consider” both Mr Gao’s failed Prospective marriage visa application and the indicia of a spousal relationship set out in reg.1.15A of the Regulations for the purposes of s.5F of the Act.
However, as Ground 2 stands on its face the short answer is that by a letter dated 17 November 2015 the Applicant’s lawyers made a submission to the Tribunal which:
a)specifically referred to Mr Gao’s failed Prospective marriage visa application;
b)enclosed a copy of Mr Gao’s Delegate’s Decision Record of 12 November 2013 refusing the Prospective marriage visa application; and
c)submitted that the relationship between the Applicant and Mr Gao had ended once Mr Gao’s visa application had been refused on 12 November 2013.
Further, the Delegate’s Decision Record of 13 February 2015 under review by and necessarily before the Tribunal specifically referred to Mr Gao’s Delegate’s Decision Record of 12 November 2013.
Finally, the Tribunal specifically referred to Mr Gao’s failed application at [16]-[17] and [46]-[48] of its Decision Record and specifically put to the Applicant at the hearing on 2 December 2015 that she had submitted documents and information to Mr Gao’s Delegate in support of her claim that she was committed to and in love with Mr Gao.
Accordingly, it is simply not correct to assert, as this Ground does, that the Tribunal “failed to consider” Mr Gao’s Delegate’s refusal to grant a Prospective marriage visa to Mr Gao as sponsored by the Applicant.
That deals with this Ground as read literally. However at the hearing its sense was amplified to encompass the submission that the Tribunal should have considered Mr Gao’s Delegate’s decision as mandating or requiring the Tribunal to come to the same view, namely that the Applicant was not engaged to be married and that the Applicant and Mr Gao did not genuinely intend to live together as spouses. In other words, the argument tended in the direction that the Tribunal in the decision under review and, if the Applicant were successful in obtaining constitutional writs in this case, any future Tribunal, must grant a Child visa to the Applicant. I deal with this submission when considering Ground 3 below, because it falls more conveniently within the ambit of that Ground.
This Ground also contends that the Tribunal “failed to consider” reg.1.15A of the Regulations, which sets out arrangements or factors to be considered in determining whether persons are in a married relationship and which are mandatory to consider for some classes of visa applications and optional to consider for other visa classes. They were optional in the respective visa applications before both Mr Gao’s Delegate and the Delegate.
In the Decision Record of the Tribunal under review it is true that there is no specific reference to reg.1.15A. However, in paragraph 16 it makes specific reference to the Decision Record of Mr Gao’s Delegate, which in Part 4 expressly refers to it being open to her to consider any of the circumstances appearing in sub-reg.1.15A(3), and then does so in the balance of Part 4 under the applicable headings of:
· “Financial aspects of the relationship”;
· “The nature of the household”;
· “The social aspects of the relationship”; and
· “The nature of persons’ commitment to each other”.
In my opinion there can be no doubt and I find that the Tribunal had read and considered the Decision Record of Mr Gao’s Delegate and was alive to the significance of reg.1.15A to the decision of Mr Gao’s Delegate and the possible significance of this regulation to the decision the Tribunal was called upon to make on the application for the Child visa.
The Tribunal in arriving at its decision was not required to consider the factors set out in sub-reg.1.15A(3), but at its option could do so. It had to come to a view as to whether it was satisfied that the Applicant was not engaged to be married and it was clearly aware of the potential relevance to its decision of the factors set out in reg.1.15A(3). In coming to the view that it was not satisfied of this, it expressly dealt in its Decision Record with the historical and social aspects of the Applicant’s relationship with Mr Gao and the nature of any commitment between them. Subject to the issue of unreasonableness dealt with in relation to Ground 3 below, the Tribunal did not commit jurisdictional error by not expressly mentioning and dealing with any financial aspects of the relationship or the nature of the household, which are the two other factors expressly provided for by reg.1.15A(3).
In my view Ground 2 has no substance and fails.
Ground 3
This Ground, as amplified by the Applicant’s written submissions and by Mr Cutler at the hearing can, I believe, fairly be summarised as contending that:-
a)the decision of the Tribunal under review was inconsistent with the decision of Mr Gao’s Delegate in relation to Mr Gao’s Prospective marriage visa application and the Tribunal was estopped from arriving at a different inconsistent result and it was jurisdictional error to do so;
b)issue estoppel precluded the Tribunal from coming to a different decision to that of Mr Gao’s Delegate; and
c)the Tribunal decision was legally unreasonable in that it lacked an evident and intelligible justification and was thereby vitiated by jurisdictional error: Minister for Immigration v Li (2013) 249 CLR 332.
Estoppel and Inconsistency
In relation to inconsistency, the Applicant points to the decision of Mr Gao’s Delegate, who found that she was not satisfied that Mr Gao and the Applicant genuinely intended to live together as spouses, and to the decision of the Tribunal under review that it was not satisfied that the Applicant was not engaged to be married to Mr Gao.
It is because of this alleged inconsistency that Ground 3 asserts that the Tribunal was estopped from coming to the view that the Applicant and Mr Gao continued to be engaged to be married, or alternatively that it was legally unreasonable in a Wednesbury or Li sense to do so.
At this point I note that it is not necessary to determine whether there is a strict logical inconsistency between the two decisions. In a general sense, there is clearly a substantial degree of inconsistency between Mr Gao’s Delegate’s decision rejecting the Prospective marriage visa because she was not satisfied that Mr Gao and the Applicant genuinely intended to live together as spouses, and the Tribunal’s decision rejecting the Applicant’s Child Visa application because the Tribunal was not satisfied that she was not engaged to be married to Mr Gao. I proceed on that basis.
It was accepted by Mr Cutler that the doctrine of precedent does not apply to Tribunal decisions and thus the Tribunal is not obliged to follow its own decisions.
In my view it is clear that the duty of the Tribunal in this instance was to review the Delegate’s decision de novo. In SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791 where, after referring to a number of provisions of the Act and, in particular, s.430, Mansfield J stated in connection with the Refugee Review Tribunal as follows:-
[21] In my judgment, that constellation of provisions indicates that the Tribunal's function by its review was to determine the correct or preferable decision on the material before the Tribunal in relation to the application for a protection visa.
[22] That approach is consistent with the decisions of the Full Court in Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 in relation to a review of a decision of a delegate of the respondent to the Administrative Appeals Tribunal, in particular per Bowen CJ and Deane J at 589. It is also consistent with the discussion by the Full Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [68]-[72] in which the Court said that “the review is by way of re-hearing de novo”.
[23] In a similar context, the High Court (Kitto, Taylor and Owen JJ) in Phillips v Commonwealth of Australia (1963) 110 CLR 347 at 350 said of an appeal under the Commonwealth Employees' Compensation Act 1930-1959 (Cth) in the nature of a re-hearing:
What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it.
See also the discussion by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621.
[24] The “review” provided for under the Administrative Appeals Tribunal Act 1975 (Cth) has similarly been held to involve a review de novo: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470; 48 FCR 111; Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554; Woss v Jacobsen (1985) 60 ALR 313.
In the case of a hearing de novo, the relevant matter is heard afresh and a decision is given on the evidence presented at that new hearing and the matter is in effect retried with the previously successful party below enjoying no advantage: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 ([13]) and 242 ([119]).
Insofar as Ground 3 contends that the Tribunal was estopped from making its decision because it was inconsistent with Mr Gao’s Delegate’s decision on the Prospective marriage visa application, I consider that the contention must fail.
It fails at the threshold because there was no suggestion by the Applicant of any detrimental change of position or reliance by her on the faith of Mr Gao’s Delegate’s decision refusing the Prospective marriage visa or of any expectations generated by Mr Gao’s Delegate’s refusal: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 and Chan v Minister for Immigration and Multicultural Affairs [1998] FCA 1357.
Further, as Gummow J said in Kurtovic (supra) at 208 (and I consider it remains the law):-
The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:
“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of a public or a section of the public.” (Halsbury’s Laws of England (4th ed), Vol 44, “Statutes” para 949.)
In Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37, the Tribunal refused to grant the applicant a Protection visa, although the applicant’s sister had been granted a Protection visa by a differently constituted Tribunal some ten months earlier. The Full Federal Court rejected an argument that the Tribunal had improperly failed to adopt an approach consistent with the facts found by that Tribunal which had heard the applicant’s sister’s application. At 41 ([15]) the Full Court comprised of Burchett, Goldberg and Finkelstein JJ said:-
[15] There is no merit in the submission that the tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant's case consistent with the fact finding of the tribunal which determined the appellant's sister's application in December 1998. Although consistency may be an important element of good administrative decision-making each case must be considered in the context of its individual circumstances.
In Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 Moore J at 359 ([21]) said:-
[21]There is nothing in the Act to suggest that the Tribunal is bound in some way by conclusions reached in previous decisions. Indeed the Act, and in particular s420, requires that the Tribunal must act in accordance with the merits of the case. As the Full Court explained in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 the nature of the Tribunal's task in reviewing a decision requires a consideration of all available evidence. In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.
In NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 at [13] Sackville J said (omitting unnecessary citations):-
[13] So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality… The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant…
In my view, the decision of Mr Gao’s Delegate rejecting the Prospective marriage visa application of Mr Gao, based on different visa criteria and different evidence, has no legal or factual effect or impact by reason of possible inconsistency or any form of estoppel, upon the Tribunal’s decision to reject the Child visa application in its decision under review in this Court.
Issue Estoppel
In Kuligowski v Metrobus (2004) 220 CLR 363 at 373 ([21]) the High Court unanimously adopted Lord Guest’s formulation of the elements of issue estoppel in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 935 which was as follows:-
(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
The first thing to say is that having regard to the authorities referred to above in paragraphs 49 to 56 I do not consider that as a general rule the doctrine of issue estoppel can be appropriately applied to decisions of the Tribunal. The Tribunal is not a court of law hearing adversarial proceedings where there has been joinder of issues between the parties and the issues both of law and fact applicable to the case have been appropriately defined for the purpose of the proceeding. Before the Tribunal there are no opposing parties as such because the nature of its role is inquisitorial. In my view the role of the Tribunal and its findings in any particular case are inconsistent with the doctrine of issue estoppel as applied in relation to judicial determinations of issues of fact or of law in proceedings in courts of law.
The doctrine of issue estoppel has recently been thoroughly considered by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 323 ALR 1 and it is made clear in that decision that a privy in interest must claim under or through the person of whom he or she is said to be a privy. Further, the interest of the privy must be a legal interest. As French CJ, Bell, Gageler and Keane JJ said in Tomlinson (supra) at 11([35]):-
[35]Subsequent applications of the principle in Ramsay have for the most part correctly emphasised that the interest of the privy must in each case be a legal interest: an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient.
In this case I do not consider that the Applicant is a privy in interest of Mr Gao in connection with the decision of Mr Gao’s Delegate concerning Mr Gao’s application for a Prospective marriage visa. The Applicant’s role in Mr Gao’s visa application was merely as sponsor approved by the Minister and prospective spouse as required by cl.300.213 and cl.300.322 of the Regulations. As such, she was not a party to Mr Gao’s visa application, although she obviously had a personal and social interest in that application as his claimed prospective spouse. That was however not a legal interest such as to make her Mr Gao’s privy in interest in relation to the decision and outcome of his Prospective marriage visa application.
Accordingly, Ground 3 is not supported by the doctrine of issue estoppel. I do not consider that it can apply to the decision of the Tribunal vis-à-vis Mr Gao’s Delegate’s decision. Further, even if it could, the Applicant was in any event not Mr Gao’s privy in interest.
Legal Unreasonableness and Lack of Intelligible Justification
That leaves the final argument under Ground 3 being that the Tribunal was unreasonable in coming to a decision inconsistent with the decision of Mr Gao’s Delegate in the Prospective marriage visa application. This must necessarily be a reference to legal unreasonableness in the decision making process of the Tribunal.
An immediate difficulty for the Applicant in putting this Ground is the statement of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 ([131]) to the effect that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60], the Full Court of the Federal Court comprised of McKerracher, Griffiths and Rangiah JJ cited with approval the following passage from the judgment of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516:
[52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[54]… The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
There is in my view no lack of an evident and intelligible justification for the decision of the Tribunal such that it could be considered to be legally unreasonable. Nor could the decision of the Tribunal be described as “arbitrary” or “capricious” or “irrational”. Rather, the Decision Record displays a reasoned consideration of the body of evidence before it. It considered the submissions put before it on behalf of the Applicant and also considered the materials that had been put before Mr Gao’s Delegate in support of Mr Gao’s application which indicated that she was committed to him and in love with him. It considered and clearly placed great weight upon the documents from the Applicant that stated that she intended to maintain a lasting relationship and was committed to the relationship and engaged to be married to Mr Gao. As a result, and having regard to its adverse findings on credibility, the Tribunal put stronger weight on previous statements of the Applicant of her committed relationship with Mr Gao, rather than the more recent evidence from the Applicant that she had never had any intention to marry him. The Applicant had earlier given evidence in support of Mr Gao’s Prospective marriage visa application that she was engaged to him and indeed intended to marry him on 24 September 2013 and that there had been an engagement party on 6 August 2012. The Tribunal substantially took her at her earlier word and disbelieved, as it was entitled to do, her later disavowal of the evidence she had given and the position she had taken as sponsor of Mr Gao’s application.
I finally deal with the argument put in support of Ground 2 (noted in paragraph 38 above) that the decision of Mr Gao’s Delegate to refuse to grant to Mr Gao a Prospective marriage visa on the basis that he and the Applicant did not intend to live together as spouses mandated or required the Tribunal in the decision under review, or any future Tribunal, to find in respect of her Child visa application that it was satisfied that she was not engaged to be married to Mr Gao.
In my view this argument fails for the same reasons that I have given for rejecting, in paragraphs 48 to 62 above, the arguments for the Applicant in connection with estoppel, issue estoppel and inconsistency.
However, the decision of the High Court in Minister for Immigration v Wang (2003) 215 CLR 518 is also quite inconsistent with this argument.
In Wang (supra), the Full Court of the Federal Court of Australia had set aside a decision of the Refugee Review Tribunal on the basis that it had erred in law but remitted the matter back to the Refugee Review Tribunal on the basis that the rehearing be conducted by the same original Tribunal member, namely Ms Boland, in order to preserve her factual findings that were said to be favourable to Mr Wang. The basis for the Full Court’s direction in this regard seems to me to have been an assumption on its part that the Tribunal in the normal course of conducting any redetermination of Mr Wang’s visa application was not bound by any findings of the earlier Tribunal determination which had been set aside. It was on that assumption that the Full Court hoped that Ms Boland would continue, if she heard the redetermination, to maintain her favourable findings with respect to Mr Wang.
In the High Court the majority considered that the Full Court had wrongly exercised its discretion in requiring the redetermination by the Refugee Review Tribunal to be heard by Ms Boland. The majority were clearly of the view that the redetermining Tribunal was at complete liberty to make its own findings and decision and not bound by the earlier Tribunal decision and its findings.
Gleeson CJ at 522 ([6] –[7]) said as follows:
[6]…The Full Court ordered that the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be determined in accordance with law.
[7]The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent's claim to refugee status.
At 525 ([15]-[16]) Gleeson CJ said:
[15]It is clear that the reason for the order finally made by the Full Court was a view that the interests of justice required that the respondent should be protected as far as possible from the contingency that, on the hearing of the remitted matter, the Tribunal might take a view of the facts less favourable to the respondent than had been taken by Ms Boland.
[16]…The Tribunal's decision upon that review is to be made on the basis of the facts as they appear in the course of that review. To what extent the information before the Tribunal will differ from the information that was originally before Ms Boland is not known. The findings made by Ms Boland will have no legal status in that further review. Neither Ms Boland, if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them. The most that can be said is that, as a practical matter, if Ms Boland undertakes the review, then, unless there is a significant change in the information before the Tribunal, she is unlikely to alter the view of the facts she took previously, whereas a fresh decision-maker might see the matter differently even if the information remains substantially the same. If that be regarded properly as a risk, does justice require that the respondent be protected from it? (emphasis supplied)
At 526 ([18]) Gleeson CJ said:
[18]Proceedings before the Tribunal are not adversarial. No issues are joined. There is an ultimate question to be answered, and a statutory consequence attaching to the answer to that question. The question is whether the Tribunal is, or is not, satisfied of the matters set out in s 65 of the Act which, in the case of the respondent, concern his claim that he has a well-founded fear of being persecuted for reasons of religion. That state of satisfaction must exist at the time of the decision following the hearing of the remitted matter, and must be formed on the basis of all the information before the Tribunal at that time. Justice requires that the respondent's claim be considered fairly, and on its substantial merits. It does not require that the hearing be conducted on the basis that any favourable findings of fact, made in the course of the decision that was set aside by the Full Court, be somehow preserved for his benefit. Nor does it require the selection, if possible, of a decision-maker who has already shown herself to be willing to accept parts of the respondent's case. Fairness to a person seeking a visa may require that, in a given case, he or she be protected against the possibility, or the appearance, of adverse pre-judgment. It does not require protection against the risk that open-minded judgment will result in a view of certain facts less favourable than that of an earlier decision-maker whose decision has been set aside completely.
McHugh J in Wang at 533 ([45]) said as follows:
[45]Although the Full Court appears to have made the order that it did to ensure that Mr Wang got the benefit of the previous factual findings, it did not direct the Tribunal, in rehearing the application, to apply or accept the findings that it had made in the original hearing. It seems to have assumed that, because the matter would go back to the same person, Mr Wang would receive the same favourable findings on certain issues. That may or may not have been a safe assumption. But whether it was or was not, the Tribunal was not bound to make the same findings as it did on the first occasion. (emphasis supplied)
Gummow and Hayne JJ said to similar effect at 540 ([68]):
[68]Whether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review.
The Full Court of the Federal Court comprised of McKerracher, Griffiths and Perry JJ in AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131 at [53] said of the effect of Wang:-
[53]…In essence, the High Court said that… in conducting the remitter, the Tribunal (however constituted) was not obliged to reach the same findings of fact as previously made because circumstances may have changed or, even if they had not, a different view might be taken of the evidence.
In my view the Tribunal was not bound in coming to a determination with respect to the Applicant’s Child visa application to take into account and give effect to any finding of Mr Gao’s Delegate.
Conclusion
I consider that the Tribunal’s Decision Record evinces no jurisdictional error and the Application should therefore be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 3 November 2016
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