Kanagul v Minister for Immigration
[2014] FCCA 1219
•16 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANAGUL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1219 |
| Catchwords: MIGRATION – Application to review decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether Applicant “gave” information consisting of evidence of witnesses at the Tribunal hearing to the Tribunal for the purpose of the application for review. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 359A, 424A |
| Gordon v Minister for Immigration & Anor [2011] FMCA 818 Mazumdar v Minister for Immigration [2012] FMCA 1170 Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 NBKT v Minister for Immigration and Multicultural Affairs (2006) FCR 419; [2006] FCAFC 195 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZCNG v Minister for Immigration and Citizenship & Anor [2006] FMCA 505 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 SZMPT v Minister for Immigration and Citizenship and Another (2009) 107 ALD 121; [2009] FCA 99 |
| Applicant: | NEDIM KANAGUL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1585 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Godwin |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 7 June 2013 in Tribunal case number 1101617.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 January 2011.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1585 of 2013
| NEDIM KANAGUL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 7 June 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant, Mr Kanagul, a Partner (Migrant) visa.
Mr Kanagul is a citizen of Turkey. He married the visa sponsor in Turkey on 22 June 2007. He applied for a Spouse visa (later known as a Partner visa) on 10 February 2009. He was granted a Spouse (Provisional) (Subclass 309) visa on 14 August 2009 and entered Australia on 13 October 2009.
A Class UF visa is a temporary visa which entitles the holder to travel to and remain in Australia on a temporary basis. Thereafter a permanent Partner (Migrant) (Class BC) visa may be granted in a range of circumstances including, relevantly, where the decision-maker is satisfied that the applicant’s relationship with the sponsor has been on-going for at least two years and is genuine and continuing.
On 12 October 2010 Mr Kanagul’s wife advised the Department in writing that she wished to withdraw her sponsorship of Mr Kanagul. When informed of this, Mr Kanagul claimed he loved his wife, that he did not know why she had withdrawn her sponsorship and that they were living together as a “real couple”.
On 24 January 2011 a delegate of the First Respondent refused Mr Kanagul’s application for a Spouse (Migrant) (Class BC) visa. In reasons for decision, the delegate recorded that a Departmental case officer had telephoned the sponsor on 24 January 2011 and that she told the officer that she and the Applicant were still living in the same house because the Applicant had nowhere else to go, but that the relationship had “ended with no chance of reconciliation”.
The delegate refused the application on the basis that the relationship was no longer genuine and continuing and hence that Mr Kanagul was not the spouse of the sponsor within reg.1.15A of the Migration Regulations1994 (Cth) (the Regulations).
Mr Kanagul sought review by the Tribunal on 21 February 2011. On 30 January 2012 his wife wrote to the Department to enquire as to whether she could reverse her decision to withdraw her sponsorship. She claimed that she wanted to give her marriage “another shot”. The Department sent a copy of her letter to the Tribunal on 9 February 2012.
On 28 March 2012 the Tribunal received another letter from Mr Kanagul’s wife explaining the circumstances in which she had withdrawn her sponsorship. She also explained that while she was living and working in Queensland for financial reasons, Mr Kanagul had remained in Sydney because he had a job. She claimed that they had begun talking and seeing each other again and were getting on much better because there was mutual respect. She asked that the relationship be given another chance.
Mr Kanagul attended a Tribunal hearing on 15 February 2013 with his wife and his flatmate. A transcript of the hearing is in evidence before the Court.
The Tribunal Decision
The Tribunal affirmed the decision to refuse the visa application. It was not satisfied on the basis of the material before it that the Applicant was the spouse of the sponsor within reg.1.15A of the Regulations.
The Tribunal stated that in reaching this conclusion it had regard to all the circumstances of the relationship. In relation to the financial aspects of the relationship the Tribunal stated:
The visa applicant and sponsor do not have and have never had any joint bank accounts. They each have separate accounts and neither can access the other’s. They do not have any assets or liabilities. The sponsor owns her home and pays for the mortgage. Neither provides any regular or significant financial support to the other, though the visa applicant does buy things when he is with the sponsor. There is no information to indicate any change in these financial arrangements since the visa applicant moved to Southport. The Tribunal is of the view that this lack of any financial commitment is indicative of a relationship which is not genuine and continuing.
In relation to the nature of the household the Tribunal found:
The visa applicant and sponsor lived together at the Hurstville home until late in 2010. The visa applicant then moved out and has been living in shared accommodation, at least until the time of the hearing, a period of over two years. The sponsor moved to Queensland in September 2011. According (sic) the information provided after the hearing, the visa applicant moved there in about April 2013. There is no information as to the nature of the household or the living arrangements. Based on this information, the Tribunal is of the view that the visa applicant and sponsor have not lived together since late 2010 until April 2013. Further, there is no information as to the nature of the household they now have in Queensland. The Tribunal is of the view that there has been a very limited sharing of a household by the parties during the course of the marriage.
The Tribunal also had regard to the social aspects of the relationship. It accepted that the sponsor’s son was aware of and approved of his mother’s relationship with the Applicant, but found that the sponsor’s mother did not approve of the relationship and was not aware that the couple had “come back together”. The Tribunal found that the Applicant’s flatmate “knows of the relationship as a couple but has not met the visa applicant and has given no evidence as to the quality of genuineness of the relationship” (sic). It is apparent from the Tribunal’s account of the hearing that this was intended to be a reference to the fact that the Applicant’s flatmate (referred to as a roommate) had not met the sponsor. The Tribunal also had regard to the fact that there was no information before it as to any social activities of the couple with others or with family members, apart from a few photographs of the couple taken at various unspecified times and evidence of sharing a birthday with the sponsor’s son. It found that there was a “lack of social activities and acceptance” which indicated “that the relationship is not recognised socially as being that of a couple”.
The Tribunal also had regard to the nature of the commitment of the Applicant and the sponsor to each other. It found they married in Turkey in 2007 and the Applicant entered Australia in October 2009 but that in the three and a half years since that time, he and the sponsor had lived together for a total of about fourteen months and had lived apart for just over two years (although there was documentary evidence that the Applicant had visited the sponsor in Queensland several times between March 2012 and January 2013).
The Tribunal continued:
The parties have lived apart because of the visa applicant’s employment situation, having a job in Sydney which he is able to do despite his language limitations. However, he had made no attempt to obtain employment in Queensland and only applied for a security licence about six weeks before the hearing. The Tribunal is of the view that this indicates that the visa applicant did not have a real commitment to moving to Queensland to be with the sponsor. The Tribunal is of the view that the visa applicant’s recent move to Queensland, about which there is no information other than the change of address, does not indicate that such a commitment has now been made.
The Tribunal accepted that the sponsor “now supports” the Applicant and “wants him to stay in Australia”, but having regard to the factors discussed, was not satisfied that the relationship between the Applicant and the sponsor was genuine and continuing as required under the Regulations. Nor was it satisfied on the evidence before it that the couple had “a mutual commitment to a shared life as husband and wife to the exclusion of all others”. Nor was the Tribunal satisfied that they lived together or that they did not live separately and apart on a permanent basis (despite its acceptance that the couple resumed living together in about April 2013). It concluded that they did not meet the requirements of reg.1.15A of the Regulations and that Mr Kanagul was not the “spouse” of the sponsor within reg.1.15A. Hence it found that he did not meet an essential criterion for the visa.
This Application
The Applicant sought review by application filed in this Court on 12 July 2013. The only ground in this application is that the Tribunal misapplied the law. The particulars to this ground are that the Tribunal “failed to issue the applicant an appropriate Section 359A or Section 359AA Notice in relation to evidentiary issues of concern”.
The Applicant submitted that there were three items of “information” in the evidence given by the other witnesses at the Tribunal hearing which gave rise to obligations on the Tribunal under s.359A of the Migration Act 1958 (Cth) (the Act). The first item was said to be information provided by the Applicant’s wife during the Tribunal hearing that she and the Applicant had entered into a contract (misdescribed as a “prenuptial”) to keep their finances separate. The second item was said to be information provided by the wife that she did not help the Applicant with job applications (although it emerged in oral submissions that the evidence in question related to her attitude to assisting the Applicant with job applications if he moved to Queensland). The final item was information provided by the Applicant’s flatmate during the Tribunal hearing that he had not met the Applicant’s wife.
The Applicant submitted that the Tribunal considered that each such item of “information” would be part of the reason for affirming the decision under review. While it was acknowledged that at the hearing the Tribunal had drawn the Applicant’s attention to the information in question (as well as to the relevance of his wife’s evidence generally) it was contended that as this was not done in accordance with s.359AA of the Act the Tribunal had to put the information to the Applicant in writing in accordance with s.359A.
The first item identified by the Applicant as information within s.359A(1) was the evidence of his wife at the Tribunal hearing about the couple’s financial arrangements. After discussing her move to Queensland, the Applicant’s wife explained that because she had had a divorce previously and did not have “a very nice experience” financially, when Mr Kanagul first arrived in Australia she asked him if they could do what she described as a “prenuptial” or a contract. She gave evidence that she did this on the advice of a solicitor she had consulted who told her not to sign a contract in Turkey but to do it when the Applicant arrived in Australia (which was after their marriage). Her evidence was that the contract, signed in early 2010, provided that everything she owned or earned until 2010 belonged to her. The Applicant’s wife also told the Tribunal that the main reason they did not have a joint account was because she had been advised by her solicitor to protect her financial situation. She said the only account she and her husband shared was a Vodafone account. She had agreed to this because he could not otherwise get a phone contract. She agreed that their finances had been completely separate since early 2010. As discussed further below, the Tribunal put aspects of her evidence to the Applicant at the hearing, although the Applicant submitted that the manner in which this was done did not meet the requirements of s.359AA of the Act.
The Applicant also pointed to the fact that the Tribunal had explicitly stated that the information about the couple’s financial arrangements was one of the reasons for its decision. This was said to support the proposition that the information fell within s.359A(1) being part of the reason the Tribunal affirmed the decision under review.
The next item relied on in support of this ground of review was the evidence given by the Applicant’s wife at the Tribunal hearing about assisting the Applicant in relation to job applications. This evidence followed the wife’s evidence about why the Applicant had not gone to Queensland with her when she moved. She explained that he cleaned houses around Auburn, earned money and was helping financially (although he had been rejected for a factory job because he did not have permanent residence). She also said that she was worried that if he moved to Queensland he would not be working and earning, so he visited her every two to three weeks. The following exchange then occurred between the Tribunal and the Applicant’s wife:
Q. Why could he not get similar sort of work in Queensland? There’s no difference in terms of the States in terms of their legal requirements. So if he can work in Sydney doing this job, why can’t he do the same sort of job in Queensland?
A. Because I think he just cleans the houses in Auburn for the Turks and he speaks, he converses with them in Turkish. His English is still quite poor. And so I didn’t – if I – if he had come to Queensland then I have to be – I’m working in a hospital. If he sort of advertises for job I thought realistically they’re going to ring him and say, “How much are you cleaning three rooms for? What does it involve?” I thought I’m going to be the – I have to answer the phone; I can’t be there.
Q. So how do you see this problem being overcome?
A. I see this problem being overcome if – if I have sponsored him. I don’t know what the result was going to be if he gets his residentship and if he does get his residentship then he can just apply for a job in, even in a factory, anywhere at all, and they might take him in.
Q. But his English would still be at the same standard as now. You would still have to be involved in liaising with the, you know, potential employers. So why would it be different when he’s got the visa than it is now in terms of your involvement?
A. Well, I am willing to help him in the beginning but, of course, if he goes for a job no one’s wife goes with them and go, “Oh, let’s do this together”. It’s just that he cannot physically get the jobs at the moment. He can’t, he can’t go to the employment agency; he tried. They said, “No you can’t,” because he can just look at the files there and that’s how he found his first job as a cleaner with an Italian man in Hurstville because he just sort of – and, unfortunately, when you’re in your own environment – Auburn is just full of Turks and they don’t speak English. They don’t get the opportunity to speak so he doesn’t get the opportunity to learn English.
Again, this evidence was raised with the Applicant at the hearing but (as discussed below), it was submitted that this was not done in accordance with s.359AA of the Act as at no time did the Tribunal advise the Applicant that he could seek additional time to comment on or respond to the information.
The Applicant pointed out that the Tribunal concluded, on the basis of the evidence before it, that the couple did not have a mutual commitment to a shared life as husband and wife. It was submitted that part of that evidence was this information given by the sponsor which was taken by the Tribunal to indicate a reluctance on her part to help the Applicant with job applications. The Applicant contended that although this particular piece of evidence was not specifically referred to in the Tribunal’s findings and reasons, it should be inferred that the Tribunal considered this piece of evidence to be relevant to the issue of a mutual commitment to the relationship.
The last item said to attract an obligation under s.359A was oral evidence given by the Applicant’s flatmate at the Tribunal hearing. In response to a question from the Tribunal as to whether the flatmate had met the Applicant’s wife, he replied “I haven’t met her but I know that [the Applicant] is seeing his wife”.
The Applicant contended that while the Tribunal discussed this evidence with him at the hearing, the Tribunal did not advise him that he could seek additional time to comment on or respond to the information as required under s.359AA.
It was submitted that the information that the flatmate had not met Mr Kanagul’s wife was clearly part of the Tribunal’s consideration of the social aspects of the relationship as required by reg.1.15A of the Regulations and therefore that this information was part of the reason for affirming the delegate’s decision.
The First Respondent conceded that no written invitation was given to the Applicant under s.359A of the Act inviting him to comment on any of the items of evidence identified and that the oral opportunity to comment afforded at the hearing did not include a statement that the Applicant could seek additional time to respond to the information as required under s.359AA(b)(iii) of the Act.
However the First Respondent submitted that none of the three items of evidence in question attracted obligations under s.359A of the Act because none of this evidence was information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. In the alternative, it was submitted any part of the evidence was information within s.359A(1), and that the Applicant gave the information to the Tribunal within s.359A(4)(b) of the Act in response to its questioning at the hearing about the information.
Section 359A of the Act is as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
Section 359AA provides:
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
In order to consider this ground and the First Respondent’s contentions in relation to s.359A(4)(b) it is necessary to set out relevant parts of the evidence at the Tribunal hearing. Before the Applicant’s wife gave evidence, an issue arose as to whether her evidence in English should be translated into Turkish for the benefit of the Applicant. The Tribunal member stated to the Applicant:
It’s important that you understand what she’s saying because what she is telling me is evidence that I’m going to be using. Right. Now, if she says something that might have an unfavourable consequence for the review, I will be asking you for any comments on that. Now, if you didn’t understand or hear what she said, then it will be difficult for you to comment when I raise it. So if you are happy to proceed in English, that’s fine, as long as you understand that that is the purpose of my talking to her today. (Emphasis added).
The Applicant accepted that the sponsor’s evidence should be translated into Turkish.
After the sponsor gave evidence on a number of issues, as outlined above, the Tribunal drew the Applicant’s attention to the relevance of her evidence generally as well as to particular aspects of the evidence. In relation to the first item relied on by the Applicant, the Tribunal stated:
Q. Right. Okay. Now, just as I said, some of the evidence that your wife gave I might need to discuss with you. The fact that I’m raising these things at this point does not mean that I’m necessarily going to make an unfavourable decision. I have a legal obligation to raise them with you, and that’s the only reason I’m doing so, to make sure that I have done that properly. The first thing is the complete separation of the finances at her insistence through a written agreement.
It is very unusual, to say the least, to have that situation, and it could be interpreted as an indication that there isn’t really a commitment on her part to the relationship because she is not prepared to commit financially to it. Did you want to comment on that?
A. INTERPRETER: Although I’m not sure, I think there is this law here that when two people are in marriage, a marital relationship, and they separate and divorce, one side or one party can get at least half of what the other party earns, and I’ve told her that I don’t want anything as such. I told her that I came because, you know – “I’m here because I love you.”
Q. But her evidence was that she went to the solicitor to organise it because she wanted to do it, not at your request, which could indicate that she was concerned not to have a financial relationship, if you like. And that’s different – and that’s very different to the standard marriage.
A. INTERPRETER: That’s how, how it is exactly to me, the standard marriage. It might be that I might be seen as a bad person and that, or give the impression that I’m trying to – I’m doing this in order to try to put my hands on everything she has. Yeah.
Q. That information or that evidence she gave about this contract is also significant for another reason. It could lead to a conclusion that she insisted on that arrangement because your marriage was for immigration purposes and she did not want to have family law complications once you separated after you got your permanent visa.
A. INTERPRETER: We never talked that way, ever.
Q. Okay. All right. Now, the other information that she gave, which is not different to yours –
A. INTERPRETER: Member, excuse me.
MEMBER: Sorry.
APPLICANT (through interpreter): We never thought of this and it’s the first time now I’ve heard anything as such.
Q. Fine. I’ll make a note of that. What I’m telling you is possible interpretations of that information that I have, all right?
A. INTERPRETER: I understand.
Q. And I’m simply putting them to you, as I said, because I have a legal obligation to do so.
The Tribunal then put to the Applicant information that it described as “information that might be adverse but is not different to yours” about the reason for his wife’s move to Queensland. It then put to him his wife’s evidence about assisting him with job applications as follows:
Q. Okay. The other thing is that the fact that she gave evidence that she was reluctant to be involved in assisting you with you finding, say, cleaning jobs in Queensland could indicate a less than genuine commitment to your marriage as such. Because it might be seen that someone in a genuine marriage who had been separated from their partner for many months – well, over a year – would make real efforts to assist them to relocate so that they could be together, whereas she indicates that she would not be prepared to do that. Did you want to say anything about that?
A. INTERPRETER: She expects so – there are so much expectations from me – of me. She wanted me – she’s wanted me to prove myself to her. And when I had nobody around me here and I did not have any environment here or any person to be with here, I found a place to live; I’ve found some jobs, with God’s help. And when I have a bit of savings here I will go to my wife and she expects me to be with her, to live with her and support her.
Q. Right
A. INTERPRETER: And I want to go there but now I am going every two or three weeks. I can’t go and stay there longer because of work commitments. I will go as soon as I get the security licence. Because she calls me all the time, she wants me to go all the time, and she expects me – my question to her just then, the purpose of that question was this.
After a discussion about the reasons the Applicant did not return to Turkey when the sponsorship was withdrawn, the Tribunal telephoned the Applicant’s flatmate. After questioning the flatmate, the Tribunal put to the Applicant aspects of his evidence, including the following:
Q. Now, a couple of things I should start – I’ve got no problem that [the flatmate] was telling me things as far as he knew them, all right, honest. But I have to consider what he has told me when it’s put together with other things that I know and decide whether his evidence is accurate and useful. Now, essentially, he hasn’t met your wife personally and doesn’t know her. He clearly does not know how old she is. He says that you talk about her and say you love her, but he also said that you’ve discussed having children, which is clearly not going to be an option.
So when I’m assessing his evidence, whilst I accept that he is telling me what he believes is the case, the evidence appears to be based solely on what you have told him, not on his own personal knowledge. And as some of that information is clearly inaccurate, it may lead to two things about that evidence; firstly, that I find that he’s not particularly useful at all because he’s not telling me anything he knows himself, and it also might lead me to conclude that you’re telling him things that will support your application for the visa so that he can then pass them on as a witness. And that might lead me to think that you’re not in a genuine relationship and, therefore, that you would not be – say any anything (sic) about that?
A. INTERPRETER: I prepare my bags to go to – before I go to see my wife and I tell [the flatmate] about going to see my wife. I’ve spoken with him about the family problem about her mum, yeah, opposing. Well, I – just because it is extremely private, I do not discuss with [the flatmate] on like where he lives or like - where she lives, what she does and things like that.
Q. Okay.
A. INTERPRETER: I never spoke – have spoken with [the flatmate] about having children. What I told him was that, if possible I told him that we would buy a house in the future and rent it out to the children, as we call them, the students who come to Australia.
Q. Right. Okay. Anything else?
INTERPRETER: I’d like to be clear there myself, just to say that we would like to rent parts of the house to the kids that would come to study in Australia.
Q. Right. Okay.
A. INTERPRETER: No, nothing else.
The hearing in this matter proceeded on the basis that if any of the three items of oral evidence in issue gave rise to a s.359A(1) obligation, what occurred at the hearing did not meet the requirements of s.359AA. It is clear that the requirement of s.359AA(b)(iii) to inform the Applicant that he may seek additional time to comment or respond was not satisfied. Hence, if any of these items of evidence enlivened the Tribunal’s obligations under s.359A(1) of the Act the Tribunal was obliged to put such information to the Applicant in writing.
The First Respondent’s main contention was that there was no failure to comply with s.359A(1) because each item of information in question was within the exception in s.359A(4)(b) of the Act as information the Applicant “gave” to the Tribunal for the purpose of the application for review. However s.359A(4) applies only to material that would otherwise enliven the s.359A(1) obligation. Hence it is convenient to consider first whether any or all of the three items relied on constitute “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
It was not disputed that oral evidence given by a witness for an applicant may enliven an obligation to provide the applicant with clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the review under s.359A of the Act (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 and SZGSI and Another v Minister for Immigration and Citizenship and Another (2007) 160 FCR 506; [2007] FCAFC 110 in relation to s.424A, the equivalent provision in relation to the Refugee Review Tribunal).
However the First Respondent contended that in the particular circumstances of this case the Court should not draw an inference that at any time prior to its decision (see Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 at [22]) the Tribunal considered that any of the three items of evidence constituted information that would be the reason or part of the reason for affirming the decision under review and hence that s.359A(1) was not enlivened. It was submitted that regard should be had to the Tribunal’s reasons in determining whether an inference should be drawn as to its state of mind at an earlier point in time. The First Respondent referred to the following remarks in Gordon v Minister for Immigration & Anor [2011] FMCA 818 at [67]:
…while the obligation under s.359A arises prior to the time of decision (at the point of its opinion or “consideration” that certain information would be the reason or part of the reason for affirming the decision under review), the Tribunal’s state of mind as declared when delivering the reasons may be sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time (see SZLPJ at [16] and also see MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319, SZKLG, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99, SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 and SZLJF v Minister for Immigration and Citizenship [2009] FCA 158).
It was pointed out that the sponsor’s evidence about the contract to keep the couple’s finances separate and about whether she would assist the Applicant with employment applications in Queensland was not referred to by the Tribunal in its findings and reasons. The First Respondent submitted that in these circumstances neither of these matters was a reason or part of the reason for affirming the decision under review.
While it was acknowledged that the information that the flatmate had not met the sponsor was referred to in the Tribunal decision, the First Respondent submitted that this evidence was not considered by the Tribunal to be in itself a matter which undermined the Applicant’s claims. It was contended that this evidence was referred to only in relation to the weight the Tribunal could put on the flatmate’s evidence as to the couple’s relationship, not as evidence that the Applicant and the sponsor were not in a “spousal relationship” within reg.1.15A.
The First Respondent also submitted that the fact that the Tribunal brought the three items of evidence to the attention of the Applicant during the hearing was not conclusive proof that at that time it had considered that such items constituted information within s.359A. It was suggested that a Tribunal may put a particular line of reasoning to an applicant in circumstances where s.359A had no application, for example out of an abundance of caution or concern for fairness (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).
I have borne in mind what was said by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 in relation to s.424A(1) (the equivalent of s.359A(1)) and the relevance of the Tribunal’s reasons for decision. After making the point that s.424A did not require notice to be given “of every matter the Tribunal might think relevant to the decision under review” (at [15]) their Honours continued at [17]:
… the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal,” or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. (Emphasis added).
While these remarks were made in relation to s.424A and concerned an application for a protection visa, the language of s.359A(1) mirrors that of s.424A(1).
Relevantly, the criteria for the visa in question in this case included a criterion that the Applicant was the “spouse” of the sponsoring partner. The concept of “spouse” is defined in reg.1.15A of the Migration Regulations. In relation to persons in a married relationship (as the Applicant and his sponsor were) it was necessary for the Tribunal to be satisfied that there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing and that the couple lived together or did not live separately and apart on a permanent basis (reg.1.15A(1A)(b) and reg.1.15A(2)(c)). Regulation 1.15A requires the Tribunal to have regard to all the circumstances of the relationship in forming an opinion as to whether two persons are in a married relationship, including in particular the factors in reg.1.15A(3) which refers to the social and financial aspects of the relationship, the nature of the household, and the nature of the persons’ commitment to each other.
In this case the reason for affirming the decision under review was that the Applicant was not the “spouse” of the sponsor within reg.1.15A. Hence, in the context of s.359A(1) what is in issue is whether it can be inferred that any of the three items of oral evidence of the Applicant’s wife or flatmate constituted information that the Tribunal considered (at some time prior to its decision) to be information that was part of the reason for affirming the delegate’s decision that the Applicant did not meet the criteria for a Partner visa.
I have also borne in mind that notwithstanding the clear indication in SZBYR at [17] that the operation of a provision such as s.359A should be determined in advance and independently of the Tribunal’s particular reasoning on the facts of the case, it is well-established that regard may be had to the Tribunal’s published reasons for decision in determining whether an inference should be drawn about what the Tribunal considered would be part of the reason for affirming the decision under review.
In SZMPT v Minister for Immigration and Citizenship and Another (2009) 107 ALD 121; [2009] FCA 99 (referred to in Gordon) Jacobson J accepted (at [15]) that “...the High Court in SZBYR impliedly overruled a substantial body of authority in the Federal Court which held that an assessment of whether the Tribunal has complied with section 424A(1) requires close attention to the reasons of the Tribunal”, including the need for the kind of “unbundling” that the Federal Court had previously considered relevant.
His Honour approved the statement by Siopis J in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] that “...the assessment of whether the information enlivened the obligation of the Tribunal under s424A(1) is made by reference to the time at which the Tribunal becomes aware of this information” and is “...not dependent on the use that the Tribunal subsequently made of the information”. However it was accepted that such later use by the Tribunal “may be a relevant consideration in drawing inferences as to the proper characterisation of the information” (see SZMPT at [17]).
Moreover Jacobson J explained (at [15]) that SZBYR did not mean that “in making an assessment of whether s.424A(1) was engaged, a court can never have regard to the reasons of the Tribunal” and accepted (at [18]) that in a proper case the reasons may be referred to in drawing inferences as to whether the Tribunal considered the information to be a reason for affirming the decision. In the particular circumstances considered in SZMPT, the absence of reference in the Tribunal reasons for decision to particular information was taken to support the inference that the Tribunal did not consider that information to be relevant (at [18]). However, relevantly, His Honour also had regard to the absence of any reference to the information in question at the Tribunal hearing or in any document generated by the Tribunal during the review process, in drawing the inference that the Tribunal had not considered that particular information to be information that would be part of the reason for affirming the decision under review.
Thus, consistent with SZBYR, the reasons of the Tribunal may, in an appropriate case, assist in a determination as to whether an inference should be drawn that at an earlier time the Tribunal considered that particular information would be part of the reason for affirming the decision under review. Similarly, what occurred at the Tribunal hearing may be relevant in relation to whether such an inference should be drawn (see SZMPT at [18]).
On the other hand, the mere fact that particular information is not expressly referred to in the Tribunal’s reasons for decision does not necessarily mean that it cannot be characterised as information that at an earlier time the Tribunal considered would be part of the reason for affirming the decision under review. Nor does the fact that a Tribunal’s decision refers only to what was said by way of comment or response to information put to an applicant at a hearing compel the conclusion that at an anterior time the Tribunal did not consider that the information commented on by the Applicant would be the reason or part of the reason for affirming the decision under review.
The first item of information identified by the Applicant was the evidence of his wife in relation to what was incorrectly described as a “prenuptial agreement” in relation to the couple’s financial affairs. The wife gave evidence that a solicitor told her not to sign a contract before the wedding in Turkey, but to “do it when he arrives here [in Australia]”. The terms of the contract were such that “everything [the wife] own(s) until now, everything [the wife] earned until 2010 is – belongs to [the wife]”. The wife stated that the only thing she and the her husband shared was a Vodafone account.
After his wife gave evidence at the hearing the Tribunal raised with the Applicant aspects of her evidence in relation to the complete separation of their finances at her insistence and through a written agreement. The Tribunal pointed out to the Applicant that such an “unusual” situation could be interpreted as an indication that there was not a commitment on the part of the sponsor to the relationship because she was not prepared to commit financially to it or as an indication that she insisted on this arrangement because the marriage was for immigration purposes. In other words, such information was presented to the Applicant as evidence that would undermine his claims to be in a genuine spousal relationship with his wife.
The separation of the couple’s financial arrangements was also referred to in the Tribunal decision and was clearly one of the reasons for the decision, in particular in relation to the Tribunal’s finding about the absence of “mutual” commitment. The underlying factual information regarding the couple’s contractual agreement not to share finances as well as the information about the separation of their finances came from the sponsor’s oral evidence.
Having regard to the nature of this information and the views the Tribunal expressed about it at the hearing, I am satisfied that, notwithstanding the absence of an express reference to the sponsor’s evidence about the couple’s finances in the Tribunal’s findings and reasons, at an anterior time the Tribunal considered such information would be part of the reason for affirming the decision under review (see SZBYR at [17]) and hence that it enlivened the obligation in s.359A(1) of the Act.
In relation to the evidence about assistance with the job applications, the First Respondent pointed to the fact that in its reasons for decision the Tribunal did not refer to the sponsor’s evidence, but regarded the Applicant’s subsequent oral evidence about his failure to obtain employment in Queensland as indicating that he did not have a real commitment to moving to Queensland to be with the sponsor. The First Respondent submitted that in circumstances where the Tribunal’s reasoning was based upon what the Applicant told the Tribunal, rather than the sponsor’s evidence about her reluctance to assist him with job applications, the sponsor’s evidence was not the reason or part of the reason for affirming the decision under review.
However the focus of s.359A is not on the Tribunal’s reasons, but rather on its subjective state of mind at an earlier stage and whether at such an anterior time it considered certain information “would be” part of the reason for affirming the decision under review. Section 359A may apply to information that has come to the attention of the Tribunal during the review notwithstanding that, because of subsequent events (including, in particular, any comment or response by the Applicant) by the time of its decision the Tribunal no longer considers that such information would be part of the reason for affirming the decision under review.
In this case, as the Tribunal recognised in putting this information to the Applicant at the hearing, this aspect of his wife’s evidence could indicate a less than genuine commitment to the marriage. In this sense her oral evidence in this regard was information that on its face undermined the Applicant’s claims to be in a genuine spousal relationship of mutual commitment. Even if the Tribunal’s concerns about the wife’s commitment were addressed by the Applicant’s response that his wife wanted him to prove himself to her or by other aspects of his evidence, I am satisfied that when the Applicant’s wife gave her oral evidence this aspect of it was information that the Tribunal considered would be part of the reason for affirming the decision under review.
The Tribunal referred to this aspect of the sponsor’s evidence in its account of the evidence at the hearing. Notwithstanding that it did not refer to this particular part of the evidence in its findings and reasons, the Tribunal concluded that the couple did not have a mutual commitment to a shared life as husband and wife on the basis of the evidence before it and all the circumstances of the relationship. Part of that evidence was the information given by the wife about not helping her husband with job applications. I am satisfied that this aspect of the wife’s evidence also constituted “information” within s.359A(1).
However I am not satisfied that the flatmate’s evidence that he had not met the Applicant’s wife was within s.359A(1) of the Act. Of itself such information did not constitute a rejection, denial or undermining of the Applicant’s claim to meet the criteria for a Partner visa (see SZBYR at [17]). Moreover it is apparent from the nature of this information, the Tribunal’s remarks at the hearing and its reasoning that the fact that the flatmate had not met the sponsor went to the weight to be given to his knowledge of the marriage (in particular in relation to social aspects of the relationship). As the Tribunal pointed out to the Applicant, the flatmate’s evidence appeared to be based solely on what the Applicant had told him. Moreover the Tribunal’s reasoning in relation to the weight to be given to the flatmate’s evidence (or whether the Applicant had told him things that would support the application) is not information within s.359A(1) (see SZBYR at [18]).
Hence it is necessary to consider whether the two aspects of the Applicant’s wife’s evidence are within the s.359A(4)(b) exception as information the Applicant gave the Tribunal for the purpose of the application for review.
As the First Respondent recognised, the fact that information is given to the Tribunal by a witness for the Applicant does not of itself mean that the information is given to the Tribunal by the Applicant. Indeed, as stated in SZCNG v Minister for Immigration and Citizenship & Anor [2006] FMCA 505 at [64]:
…information is not given by the applicant where it is given orally by a third party in response to questioning at a Tribunal hearing. The fact that the applicant had given the Tribunal notice that the applicant wanted the Tribunal to obtain oral evidence from that person and the Tribunal decided to do so in the presence of the applicant does not alter my conclusion (see Hayne J at [199] in SAAP).
However, the First Respondent pointed out that each of the items of information in question was given to the Tribunal by the Applicant’s witness at a time the Applicant was present at the hearing and that each of the items of information was orally put to the Applicant for comment by the Tribunal. The First Respondent submitted that the transcript made it clear that at the Tribunal hearing the Applicant was given the opportunity to challenge the accuracy of each item of information, that the Applicant took this opportunity and that he did not disavow the correctness of the information provided by his wife. On this basis it was submitted that the information in question was information the Applicant “gave” to the Tribunal and that it was therefore excluded from the s.359A obligation by s.359A(4)(b) of the Act. In support of this proposition the First Respondent referred to NBKT v Minister for Immigration and Multicultural Affairs (2006) FCR 419; [2006] FCAFC 195 at [50] – [62], SZGIY at [24] and Mazumdar v Minister for Immigration [2012] FMCA 1170 at [62].
The Applicant submitted that s.359A(4)(b) did not apply. It was pointed out that SZGIY and NBKT concerned legislation that pre-dated the amendment to the Act that introduced s.359AA and contended that these authorities were not relevant. It was also submitted that Mazumdar was not authority for the proposition asserted by the First Respondent, but that if it was then it was wrong and should not be followed.
The Applicant submitted generally that the First Respondent’s contentions about the scope of s.359A(4)(b) were to be contrasted with the fact that it was clear from the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 that introduced s.359AA that the purpose of the amendment was to ensure fairness at a Tribunal hearing. It was pointed out that if the First Respondent’s argument were to be accepted it would mean that if information given by another person was put to an applicant at the hearing in a manner that did not comply with s.359AA of the Act, a Tribunal could sidestep its strict statutory obligations under s.359AA and s.359A provided that the applicant did not disavow that information.
Insofar as the First Respondent relied on NBKT and SZGIY, the circumstances, source and nature of the information in question in those cases differed from that under consideration in this case. NBKT addressed the issue of whether an applicant could be said to have adopted evidence in and about her own protection visa application such that she could be said to have given factual information contained therein (the dates of her arrival in Australia and of her protection visa application) to the Tribunal. This issue arose for consideration at a time when s.424A (like s.359A) did not contain an express exception in relation to information that the applicant gave (other than orally) during the process that led to the decision under review (now see s.424A(3)(ba) and s.359A(4)(ba) introduced on 1 July 2007). NBKT also predated the decision of the High Court in SZBYR in which the majority referred to the need to consider whether information in terms constituted a rejection, denial or undermining of the applicant’s claims to meet the applicable criteria for the visa in question (at [17]).
In NBKT the applicant had told the Tribunal the date of her arrival in Australia in response to a question at the Tribunal hearing. Young J found that s.424A(3)(b) applied to that information. It is the case that his Honour did not accept that s.424A(3)(b) could not apply because the Tribunal had “elicited” a response which confirmed an uncontentious detail of the visa application. However this does not mean that an applicant’s failure to disagree with evidence of another witness would necessarily amount to the applicant giving such information to the Tribunal.
In NBKT Young J also found that the applicant had given the date of her visa application to the Tribunal for the purpose of the review within s.424A(3)(b) (the equivalent of s.359A(4)(b)), notwithstanding that she had not expressly volunteered the date of her protection visa application at the hearing. His Honour found that the applicant “gave” the date of her arrival and the approximate date of her protection visa application to the Tribunal for the purposes of s.424A(3)(b) via her visa application (which at the hearing she had affirmed was correct) and her adviser’s written submissions to the Tribunal which expressly referred to her statement attached to her visa application which included her arrival date. In addition, by filing written submissions the applicant was said to have invited the Tribunal to refer to her visa application. Young J found (at [63]) that there could be little doubt that the applicant intended the Tribunal to look at her visa application and attachments and that this was a sufficient basis to find that she gave the date of her protection visa application to the Tribunal for the purposes of the review.
Although Young J’s acceptance that information affirmed by an applicant at a Tribunal hearing (even if in response to questioning) may be “given” to the Tribunal (see NBKT at [48]-[60]) is in point, the present case is not one in which the Applicant affirmed a specific fact or uncontentious factual material that was an essential element of the decision under review (at [60]). The issue of whether the applicant “gave” information from his own visa application to the Tribunal for the purpose of the review of the decision refusing that visa application did not arise in this case.
Moreover as Young J stated in NBKT at [59]:
These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal. (Emphasis added).
In this case what is in issue is whether the Applicant “gave” the Tribunal particular information contained in oral evidence of another witness at the Tribunal hearing. The sponsor’s evidence covered several issues and contained various pieces of information. As discussed further below, the Applicant did not positively affirm or actively “give” either of the items of information in question to the Tribunal in his responses when the information was put to him. The information itself did not consist of uncontentious factual material such as the dates considered in NBKT. The Applicant did not invite the Tribunal to have regard to his wife’s evidence by reference to it in written submissions. NBKT does not support the conclusion that s.359A(4)(b) is applicable to the information that consisted of the two items of oral evidence of the Applicant’s wife relied on in this case.
Nor does SZGIY support such a conclusion. SZGIY also concerned the dates of the applicant’s arrival in Australia and visa application. However, consistent with SZBYR at [17], the Full Court of the Federal Court held that such dates were in themselves “neutral”, that they did not reject, deny or undermine the applicant’s claim to be a person to whom Australia owed protection obligations and hence that the dates did not constitute information for the purposes of s.424(1). What was said thereafter in relation to s.424A(3)(b) (at [24] and [25]) was obiter. Moreover, the Court’s reference to the applicant’s “failure to disavow” the correctness of the information is to be seen in context. Dowsett, Bennett and Edmonds JJ stated at [24]:
In any event, we consider that, for the purposes of s 424A(3)(b), the appellant gave the Tribunal the relevant information concerning her date of arrival. That date was stated in her visa application to which she expressly referred in her application to the Tribunal. In the latter application she claimed that the delegate had not read the visa application carefully. The Tribunal’s duty was to consider her application on its merits. Whilst she set out certain aspects of her claim in her application to the Tribunal, any reasonable reader would have understood that the appellant was inviting detailed attention to her visa application. Further, when asked by the Tribunal, the appellant agreed that her documentation showed that she had come to Australia in March 1997. Whilst it is possible to argue that she merely agreed that her documents showed as much, her failure to disavow the correctness of such information was a proper basis for inferring that she accepted it as correct. There is some controversy as to the circumstances in which information, provided orally by an applicant at a Tribunal hearing, is given by that applicant for the purposes of s 424A(3)(b). For present purposes we consider that the decision of the Full Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 compels the conclusion that the appellant relevantly gave such information. See NBKT at [50]-[62].
In other words, what was in issue in SZGIY was a specific uncontentious date the applicant had provided in her own visa application which itself was the subject of review by the Tribunal. The applicant had taken issue with the delegate’s consideration of that application. The applicant agreed at the Tribunal hearing that documentation showed that she had come to Australia at a particular time. It was in those circumstances that her failure to disavow the correctness of “such” information was regarded as “a proper basis for inferring that she accepted it as correct” (see SZGIY at [24]). This is not such a case. The Applicant did not fail to disavow information previously given by him. His wife’s evidence was not part of the initial visa application. The nature of the information and the circumstances in which it was communicated to the Tribunal are not such as to establish that the Applicant “gave” these parts of his wife’s oral evidence to the Tribunal.
Similarly, what was said by Smith FM in Mazumdar about the application of s.359A(4)(b) was also obiter. His Honour concluded that s.359A(1) was not engaged by the information in question (see Mazumdar at [59]) which was information obtained by the Tribunal from a computer database (PRISM) suggesting that certificates of enrolment for the applicant in certain courses had been cancelled and when that cancellation had occurred.
Moreover, insofar as Smith FM suggested that if s.359A(1) had applied, such information was “given” to the Tribunal in the applicant’s apparent acceptance of what was put to him at the Tribunal hearing, Mazumdar involved specific factual information about dates and the applicant’s enrolment in courses. In contrast, in this case the Applicant’s wife gave evidence about her approach to their finances, the legal advice she received, why she sought to keep their finances separate on a contractual basis and what the Tribunal perceived as her reluctance to be involved in assisting the Applicant with finding cleaning jobs in Queensland. This was not information that had already been provided to the Department in support of the visa application. It was not simply uncontentious factual material about the Applicant. It was not information previously provided by the Applicant.
I am not persuaded that in his oral response to the informal oral invitation to comment on his wife’s evidence, the Applicant “gave” the Tribunal such evidence. Consistent with NBKT and SZGIY, the question of whether what occurred at the Tribunal hearing meant that the Applicant “gave” information from another source to the Tribunal for the purposes of s.359A(4)(b) is to be determined “giving careful consideration to the nature of the information… and the circumstances in which it is communicated to, or elicited by, the Tribunal” (NBKT at [59]).
When the Tribunal put to the Applicant his wife’s evidence about why she went to a solicitor and the contract to keep their finances separate and the possible implications of this action, it stated that this was a matter it needed to “discuss” with him and then asked if he wanted “to comment on that”. The Applicant did not affirm in any meaningful sense or fail to disavow the accuracy of what his wife said. Indeed was not in a position to avow or disavow his wife’s evidence about any reluctance on her part to be involved in assisting him with finding jobs. His comments that she wanted him to prove himself to her and about what he had done in that respect were not such as to amount to giving the information in her evidence to the Tribunal. The Applicant’s response that he did not want, or to be seen to want to get half his wife’s assets and his denial that they ever talked about a marriage for immigration purposes was an attempted comment or explanation. It was not such as to amount to an adoption or affirmation of the specific evidence given by the sponsor relevant to her commitment as well as to the reasons for and fact of the separation of their finances.
As the Applicant submitted, it would be contrary to notions of procedural fairness on which provisions such as s.359AA and s.359A are based (see the “Outline” in the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006) to allow the Tribunal to circumvent the operation of such provisions by putting information (such as evidence from a witness) to an applicant for comment at the hearing in a manner that did not comply with s.359AA on the basis that it could to rely on s.359A(4)(b) on the basis that the Applicant did not expressly contradict or disavow the evidence of the witness in response to such an informal opportunity to comment.
In any event, given the nature and source of the information and the Applicant’s responses at the Tribunal hearing I am not satisfied that he “gave” the information in his wife’s evidence to the Tribunal for the purposes of s.359A(4)(b).
Hence s.359A(4)(b) did not apply. Thus the Tribunal breached s.359A in relation to the two items of evidence from the sponsor outlined above in a manner constituting jurisdictional error.
The application should be remitted to the Tribunal for reconsideration in accordance with law.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 16 June 2014
4
14
3