Khaira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4)
[2021] FCCA 1716
•28 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Khaira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4) [2021] FCCA 1716
File number(s): BRG 530 of 2018 Judgment of: JUDGE EGAN Date of judgment: 28 July 2021 Catchwords: MIGRATION – Partner Visa – failure by Tribunal to fully advise applicant as to the effect of dob-in information the subject of s. 375A certificates – certificates found to be invalid – failure by Tribunal to give access to applicant of all written material before the Tribunal prior to hearing – whether mandatory obligations breached – jurisdictional error established – application granted. Legislation: Constitution Act 1900 (Cth), s 75.
Migration Act 1958 (Cth), ss 5F, 57, 348, 349, 357A, 360, 362A, 359A, 359AA, 375A, 424A.
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 802.221.
Cases cited: Khaira v Minister for Home Affairs & Anor [2020] FCCA 1264.
Khaira v Minister for Home Affairs (No 2) [2021] FCCA 659.
Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Little v Registrar of High Court of Australia (1991) 101 ALR 247.
Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14.
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305.
Number of paragraphs: 62 Date of last submission/s: 26 May 2021 Date of hearing: 18 January 2019, 13 March 2019, 1 April 2020, 20 May 2020, 3 August 2020, 16 February 2021, 31 March 2021, 14 April 2021. Place: Brisbane Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: No Borders Lawyers Counsel for the First Respondent: Ms Hoiberg Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 530 of 2018 BETWEEN: VATANDEEP KAUR KHAIRA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
17 AUGUST 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Originating Application for Review filed on 31 May 2018 be granted.
3.The decision of the Administrative Appeals Tribunal made on 30 April 2018 be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, it be constituted by a different member than the member who handed down the decision on 30 April 2018.
AND IT IS ORDERED BY CONSENT THAT:
6.The First Respondent pay the Applicant’s costs of and incidental to the proceeding, as agreed or, failing agreement, as assessed.
7.The costs referred to in paragraph 6:
(a)include the reserved costs of and incidental to the hearings on 1 April 2020, 16 February 2021, 31 March 2021, 1 April 2021, 6 April 2021 and 14 April 2021;
(b)exclude the reserved costs of and incidental to the applicant’s application in a case filed on 21 April 2020;
(c)exclude the costs of and incidental to the hearings on 18 January 2019, 13 March 2019 and 3 August 2020.
8.For the avoidance of doubt, the orders in paragraphs 6 and 7 do not have the effect of disturbing the orders for costs made on 17 January 2019, 13 March 2019 and 3 August 2020.
REASONS FOR JUDGMENT
JUDGE EGAN:
INTRODUCTION
The applicant is a citizen of India who, whilst in Australia on a Student Visa, applied for both a Partner – Temporary (Class UK) (Subclass 820) Visa and a Partner –Residence (Class BS) (Subclass 801) Visa. Those applications were made on 25 October 2012 following the applicant’s marriage to an Australian citizen on 12 September 2011.
The applicant was granted a Temporary Partner (Subclass 820) Visa on 10 January 2014. At that time, the applicant’s application for a Subclass 801 Partner Visa remained on foot.
On 28 March 2015, the Department received a letter from the sponsor advising the Department that the applicant and the sponsor were no longer living in a spousal relationship, and that the sponsor no longer wished to sponsor the applicant. [1] On 7 July 2015, a delegate of the Minister refused to grant to the applicant the Subclass 801 Partner Visa on the basis that there was no continuing relationship between the applicant and the sponsor.
[1] Exhibit 1 at p. 488.
The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. On 22 December 2016, the Tribunal affirmed the decision of the delegate.
On 19 January 2017, the applicant applied to this Court for review of the decision of the Tribunal’s decision dated 22 December 2016. Orders were made by consent on 11 August 2017 quashing the decision of the Tribunal, and remitting the matter for rehearing. It was conceded by the first respondent that the failure by the original Tribunal to put adverse information to the applicant pursuant to the provisions of s. 359A of the Migration Act 1958 (Cth) (‘the Act’) rendered the Tribunal’s 22 December 2016 decision invalid.
On 21 March 2018, the applicant attended a hearing before a differently constituted Tribunal, where she was represented by a lawyer.
On 30 April 2018, the Tribunal affirmed the decision of the delegate not to grant a visa to the applicant.
THE REASONS OF THE TRIBUNAL
At [4] – [5] of its reasons, the Tribunal noted that the earlier decision of the Tribunal made on 22 December 2016 had been quashed. The Tribunal also noted that the applicant had raised a claim that she was the subject of family violence within a statutory declaration dated 19 December 2016.
At [9] of its reasons, the Tribunal appropriately set out the relevant issues for determination, namely:
(a)Whether the applicant and the sponsor were in a spousal or de facto relationship which had ceased for the purposes of the Act; and if so
(b)Whether the applicant had suffered family violence from the sponsor within the meaning of the Migration Regulations 1994 (Cth) (‘the Regulations’).
At [17] – [18] of its reasons, the Tribunal set out the relevant provisions which must be satisfied for the grant of the visa under cl. 801.221 of the Regulations. Clause 801.221 of the Regulations relevantly provided as follows:
“801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
(3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).
(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).
(5) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a Subclass 820 visa; and
(b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(d) has developed close business, cultural or personal ties in Australia.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note:For special provisions relating to family violence, see Division 1.5.
(6A) Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long‑term partner relationship with the sponsoring partner.
(7) Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:
(a) refusing to grant a Subclass 801 visa; or
(d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).
(8) The applicant meets the requirements of this subclause:
(a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and
(b) if the Tribunal:
(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or
(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.”
At [18] of its reasons, the Tribunal noted the matters relevant to determining whether the applicant and the sponsor were in a spousal relationship pursuant to the provisions of s. 5F of the Act, and r. 1.15A of the Regulations. Section 5F of the Act and r. 1.15A of the Regulations relevantly provided as follows:
“5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”
“1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”
At [19] of its reasons, the Tribunal accepted that the applicant and the sponsor were married on 12 September 2011 under a marriage that was valid for the purposes of s. 5F(2)(a) of the Act.
At [24] – [27] of its reasons, the Tribunal set out the financial aspects of the relationship relevant to r. 1.15A(3)(a) of the Regulations. The Tribunal had before it two bank statements from a joint account of the applicant and the sponsor, and two tenancy agreements spanning the period 7 May 2012 – 4 May 2014. The Tribunal noted that there was no joint ownership of assets, other than furniture and white goods which the applicant had orally claimed to have been purchased jointly with the sponsor. The Tribunal also noted that there was little evidence within the bank statements of the joint account which demonstrated the pooling of financial resources and the sharing of day to day household expenses. It was claimed by the applicant that due to the sponsor’s obligation to pay child-support to previous partners of the sponsor with which he had two children, the applicant was required to pay for most household expenses. On that basis, the Tribunal recorded that it placed limited weight upon the financial aspects of the relationship.
At [28] – [33] of its reasons, the Tribunal considered the nature of the living arrangements of the applicant and the sponsor pursuant to r. 1.15A(3)(b) of the Regulations. The Tribunal had regard to statements made by the applicant within her September 2014 statutory declaration. Under the heading ‘Describe the nature of your household’ in the applicant’s statutory declaration, the applicant claimed as follows: [2]
“6. Is same. We are no sharing our privacy with anyone else because we only two living together and enjoy our wife husband time. Sharing of responsibility for house work is almost equil. We work together. We are both working full time so we have to help each other. He is very nice he always help to do cleaning, washing and even cooking too. All the bills and rent we paying by net banking so who ever get time to all this. And for grocery shopping we go together and sometimes alone too. So everything is all good and working very well. I am feeling blessed and happy.”
[2] Exhibit 1 at pp. 459 – 460.
At [32] – [33] of its reasons, the Tribunal noted inconsistencies between the statements made within the applicant’s September 2014 statutory declaration and the applicant’s oral evidence given to the Tribunal at the hearing as follows:
“[32] The Tribunal observes that the applicant's evidence regarding the parties living arrangements as contained in her September 2014 statutory declaration differ from the oral evidence given by her at hearing. At hearing she stated that to alleviate the burden upon her an additional person moved into the unit. The applicant initially said that this was a couple of months after they moved in, and later said that it might have been 4 to 6 months later. Whichever version is correct, neither is consistent with the claim in the applicant's statutory declaration regarding not sharing their privacy and only the two of them living together. Further, when questioned later by the Tribunal, the applicant said that the tenant stayed with them for a long time – she said that 'the tenant moved in between January and March 2012 and stayed for a long time'. Similarly, at hearing the applicant stated that she did most of the housework, whereas in her September 2014 statutory declaration she stated that the parties shared it almost equally.
[33]The Tribunal places limited weight on the evidence of the nature of the household.”
At [34] – [37] of its reasons, the Tribunal set out the social aspects of the relationship relevant to r. 1.15A(3)(c) of the Regulations. The Tribunal considered the contents of three (3) form 888 statements made by friends of the applicant and the sponsor at [35] of its reasons as follows:
“[35]The Tribunal had regard to the form 888 of [name omitted] dated 13 October 2012. The Tribunal places little weight upon [name omitted] statutory declaration as at the time of the making of it he had only known the applicant and sponsor for three months, and while he states that he has observed the parties' relationship to be full of genuine love, that they are a very strong couple and that their relationship grows from strength to strength, it does not state why he believes those matters. The Tribunal also considered the form 888 of [name omitted] dated 14 December 2011. [Name omitted] states that he has known the applicant for two years and seven months and the sponsor for three months. He does not state whether he believes the relationship to be genuine and continuing, and neither, therefore, does he give reasons for having such a belief. As well, the Tribunal considered the form 888 of [name omitted] dated 13 October 2012. She declares that she knew the applicant for three years and the sponsor for one year at the time of making her statutory declaration. She states that she believes the relationship between the parties is genuine because she has witnessed how much they love each other first-hand and how the love continues to grow. The Tribunal finds this statutory declaration to be lacking in detail.”
[names omitted]
The Tribunal considered the applicant’s oral evidence as well as the contents of the applicant’s September 2014 statutory declaration regarding the social aspects of the relationship at [36] and [37] of its reasons. The Tribunal noted that the applicant had not met the sponsor’s parents before the breakdown of the relationship, and had only met two of the sponsor’s friends. The applicant had claimed to the Tribunal that due to her and her sponsor’s busy work schedules they had little time to plan and undertake joint social activities. The Tribunal had reservations as to the genuineness of the relationship as a result of the failure by the sponsor to introduce the applicant to his parents given the importance of marriage to their cultures. The Tribunal also did not find the supporting declarations to be persuasive due to their ‘brevity, and the superficial knowledge of the applicant and sponsor by the respective declarants.’ [3] Accordingly, the Tribunal placed little weight on the social aspects of the relationship.
[3] Exhibit 1 at p. 666 at [37].
At [38] – [46] of its reasons, the Tribunal considered the extent of the applicant’s and sponsor’s commitment to each other relevant to r. 1.15A(3)(d) of the Regulations. At the time of the hearing before the Tribunal on 21 March 2018, the applicant and the sponsor had not been in a relationship for three (3) years. Submissions made by the applicant before the Tribunal were therefore made in support of the applicant’s claim that she had suffered family violence from the sponsor.
At [39] – [40] the Tribunal recorded the submissions made by the applicant, noting inconsistencies between the applicant’s statutory declarations respectively made in September 2014, December 2016 and September 2017 as follows:
“[39]The Tribunal discussed the applicant's statutory declarations of September 2014 and September 2017 with her. The Tribunal asked the applicant to reconcile the contents of the two statutory declarations which were inconsistent. For example in September 2014 the applicant declared that the sponsor always supported her emotionally and physically. She stated in that statutory declaration that he is a very emotional person, and that specifically he gave her significant support both at the time of her miscarriage, and when her father was unwell. She also stated in the statutory declaration that the sponsor was very excited when she fell pregnant with their child. By way of contrast, in the September 2017 statutory declaration, as well as claiming that the sponsor pressured her to become a Muslim and wear the burqa, the applicant also claimed that the sponsor was not supportive when her father was ill, nor was he supportive of the pregnancy, nor of the applicant when she had the miscarriage. The Tribunal also raised the statutory declaration made by the applicant in December 2016, and in particular the fact that it made no specific reference to her father's ill health, nor her having a miscarriage, nor the sponsor's attitude to those events. The applicant stated that the sponsor told her what to write in her statutory declaration of September 2014 because he used to manipulate her mind. The applicant also said that until recently, she had been too embarrassed to write about the family violence she had suffered.
[40]The applicant told the Tribunal that the family violence was such that the parties had bad fights and the police came to their house, although there are no reports of such. She said however, that notwithstanding that, the sponsor was able to convince her to do whatever he wanted her to do.”
At [40] – [41] of its reasons, the Tribunal recorded its concerns regarding the sponsor having had a GPO box and a self-storage container of which the applicant was unaware. The applicant was unable to explain to the Tribunal why the sponsor would have maintained such arrangements, particularly in circumstances where the applicant’s September 2014 statutory declaration had claimed that the parties received letters to the same address.
At [43] of its reasons, the Tribunal noted that the applicant’s relationship statement had included words directly taken from a Facebook page entitled ‘I love you forever much from everything.’ The Tribunal had previously asked the applicant whether the relationship statement was written in her own words, to which the applicant replied that it was. When it was put to the applicant that some of the words contained in the statement were taken from the internet, the applicant had orally explained that she had searched the internet for a romantic statement to include in her relationship statement. Following the Tribunal hearing, the applicant’s migration agent addressed the use of those words in the relationship statement as follows: [4]
“The Member notes that the first paragraph of this letter was copied from a Facebook page. With English being her second language, the applicant advises that she had done some research on the Internet when she was writing the letter purely as a form of inspiration and guidance. The applicant advises that the first and last paragraph of this letter are quotes and poems found on the Internet which she included in her letter because she truly felt that they represented her feelings at the time. It is submitted that it does not in any way suggest that the applicant and sponsor’s relationship is not genuine.”
[4] Exhibit 1 at p. 652.
At [45] – [46] of its reasons, the Tribunal recorded that it was not persuaded that the parties derived companionship or emotional support from one another, such that the Tribunal placed little weight upon the nature of their commitment to one another.
At [47] – [57] of its reasons, the Tribunal set out its concerns regarding the credibility of the applicant relating to:
(a)Inconsistent evidence about the tenant as recorded in the September 2014 statutory declaration and oral evidence given at the hearing.
(b)The fact that the applicant had orally claimed before the Tribunal that the relationship statement was all in her own words in circumstances where parts of the statement had been taken directly from the Internet
(c)Notable inconsistencies between statements contained in the applicant’s statutory declaration of September 2014 and the applicant’s later statutory declarations and oral submissions to the Tribunal
(d)The absence of evidence regarding family violence in the period following the claimed commencement of violence in December 2012 until the claimed breakdown of the relationship in March 2015. The Tribunal was particularly concerned that the applicant omitted details about her claim of being pushed by the sponsor whilst she was pregnant in her December 2016 statutory declaration.
At [49] of its reasons, the Tribunal noted the submissions made by the applicant’s migration agent that mistruths recorded in the applicant’s September 2014 statutory declaration were a result of the manipulation and control by the sponsor. At [50] of its reasons, the Tribunal dealt with such submission as follows:
“[50]The Tribunal's view with respect to those matters is that it is clear on the face of the statutory declaration signed by the applicant that she was aware that a person making a false statement in a statutory declaration commits an offence under s.11 of the Statutory Declarations Act 1959. The Tribunal is not persuaded that fear or shame (if indeed that is what the applicant felt) outweigh the making of an offence.”
At [54] – [56] of its reasons, in the light of there having been an absence of claims relating to family violence before December 2016, as well as the omission by the applicant of details about the physical violence said to have been suffered by the applicant whilst she was pregnant, the Tribunal found as follows:
“[54]The Tribunal is also troubled by the fact that the applicant's claim of family violence was only initiated in December 2016, when it involved, according to the applicant's December 2016 statutory declaration, the sponsor becoming rude, starting to push the applicant to become Muslim and wear the burqa, hitting her, threatening to take her sponsorship back, and becoming angry. In the form 1410 statutory declaration made in September 2017, the applicant made additional claims. In particular she claimed that her husband pushed her and she fell badly when she was about eight or nine weeks pregnant. The Tribunal finds it difficult to understand why what was clearly a significant event in the mind of the applicant, in connection with the family violence she claims to have suffered from the sponsor, was not mentioned in the December 2016 statutory declaration. Further in relation to the evidence regarding family violence, the Tribunal observes that the applicant first alluded to it in her statutory declaration of December 2016. The Tribunal is therefore concerned as to why no mention of family violence, and resultant health problems were made to her doctor until 7 September 2017, notwithstanding that according to the letter from the doctor she was seen multiple times between December 2014 and September 2017 for medical issues and infective symptoms. This is even more inexplicable in relation to the period between December 2016 and September 2017.
[55]An additional concern with respect to the claim for family violence is that the delegate's decision made on 7 July 2015 made express reference to a claim for family violence being a basis upon which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsoring partner has ceased. The Tribunal acknowledges the applicant's registered migration agent's submissions that the applicant was too afraid and ashamed to tell anybody about the family violence. However, l considers the delays between July 2015 and December 2016, when the first claim for family violence was made, and then September 2017 when the applicant's form 1410 was made, and some of the other evidence claimed to be relied upon was provided, and further until March 2018 when the balance of evidence was provided, to be inconsistent with a genuine claim for family violence. Based on all of the circumstances, including in particular the chronology of events surrounding the claim for family violence, the Tribunal considers that the claim for family violence was contrived for the purpose of achieving a migration outcome.
[56]At hearing the Tribunal put to the applicant that it found it difficult to believe that given her level of education and previous employment as an assistant nurse, it was difficult to believe that she had no knowledge and awareness that she was being subjected to family violence. The Tribunal acknowledges the applicant's registered migration agent's submission that there is little or no correlation between a person's educational and employment background and their susceptibility to domestic violence, and accepts that. Notwithstanding that submission, the Tribunal considers all the circumstances surrounding the family violence claim (including the chronology as set out above, and the fact that the first time the claim was made there was a significant omission in relation to the miscarriage) weigh in favour of it being contrived to achieve a migration outcome.”
Having weighed up all of the relevant considerations as to whether the applicant and the sponsor were in a spousal relationship pursuant to s. 5F of the Act and r. 1.15A of the Regulations, as well as the applicant’s claims relating to family violence, the Tribunal concluded that the parties were never in a spousal relationship, and it affirmed the decision under review. Although the applicant had claimed to have been the subject of family violence, the Tribunal found that because the Tribunal was not satisfied that the applicant and the sponsor were ever in a spousal relationship, the applicant could not meet the requirements of cl. 801.221(6).
The Tribunal was clearly of the view that the applicant was not creditworthy. In such circumstances, the weight which was put by the Tribunal upon evidence favourable to the applicant was a relevant matter for this Court’s consideration.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 31 May 2018, the applicant filed an Originating Application for Review to this Court for review of the decision of the Tribunal, the grounds of which were as follows:
“Grounds of application
1.Failed to properly interpret and apply Reg 1.15A of the Migration Regulations 1994.
2.Failed to properly interpret and apply cl 801.211 of the Migration Regulations 1994.
3.The second respondent failed to take into account relevant considerations.
4.The second respondent’s decision was unreasonable.
5.The second respondent failed to properly conduct a review for the purpose of implementing Part V and/or ss 348 and 349 of the Migration Act 1958.
6.The decision was otherwise unlawful.”
In the applicant’s final consolidated written submissions filed on 13 May 2021 (‘AS’), the applicant abandoned grounds one (1), three (3) and six (6) of the Originating Application for Review. [5] In such submissions the applicant also corrected a typographical error contained in ground two (2), whereby the applicant stated that it had rather been the applicant’s intention to there refer to cl. 801.221 of the Regulations, instead of r. 801.211. [6] The Court has noted such correction, and has proceeded upon the basis that Ground 2 of the applicant’s originating application for review relied upon r. 801.221 of the Regulations.
[5] See paragraph [157] of the AS filed on 13 May 2021.
[6] Paragraph [136] of the AS filed on 13 May 2021.
Ground 5
In the consolidated submissions filed on behalf of the applicant, [7] the applicant submitted that Ground 5 of the Originating Application for Review, broadly characterised by the applicant as a failure by the Tribunal to conduct a proper review, was made out on a number of bases. A summary of such bases is as follows: [8]
(a)The Tribunal erred in law by regarding both purported certificates located at page 521 and 522 of Exhibit 1 as valid, and as a consequence, it was submitted that the Tribunal had failed to comply with s. 362A of the Act by failing in its obligation to allow the applicant to have access to the undisclosed documents protected from disclosure by the certificates.
(b)By supplying the two certificates on the day of the hearing, the Tribunal further breached the provisions of ss. 362A and 357A(3) of the Act.
(c)The Tribunal kept the applicant ‘in the dark’ about the assertion in the reasons that the applicant’s husband was not the cause of the applicant becoming pregnant twice.
(d)The Tribunal did not properly put its adverse allegations to the applicant, namely by:
(i)Confusing the applicant as to whether the Tribunal was referring the applicant’s first or second husband during the hearing, thereby depriving itself of understanding the evidence of the applicant.
(ii)Misunderstanding the evidence about the living arrangements of the applicant, her second husband and another person sharing their two bedroom apartment.
(iii)Misunderstanding the evidence about the poem at page 48 of Exhibit 1, having been distracted by its own internet searches which were never revealed to the applicant, and having failed to record such search for inclusion in the review material depriving this Court of the opportunity to carry out its supervisory function under s. 75 of the Constitution Act 1900 (Cth).
[7] AS filed on filed on 13 May 2021.
[8] See paragraph [1] of the AS filed on 13 May 2021.
The s. 375A Certificates
For the purposes of addressing the applicant’s claims under Ground 5, it is necessary to deal with bases (a) and (b) together, as both relate to the two purported s. 375A certificates dated 7 December 2015 and 15 December 2015, which certificates respectively appeared at pages 521 and 522 of Exhibit 1. As to the operation of s. 375A of the Act, such section relevantly provided as follows:
“375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.”
On 6 September 2017, the applicant made a request through her lawyers, pursuant to the provisions of s. 362A of the Act, for the applicant, and her assistant, to have access to all material held by the Tribunal in relation to the matter. [9] Subject to ss. 375A and 376 of the Act, the provisions of Section 362A of the Act vest in the applicant an entitlement to have access to all written material given or produced to the Tribunal for the purposes of the review. Section 362A of the Act relevantly provided as follows:
“362A Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act 1988 . In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).”
[9] Exhibit 1 at pp. 552 –553.
It is not in dispute that, in response to the applicant’s s. 362A request, the Tribunal did not provide to the applicant the material covered by the two (2) s. 375A certificates. It is further not in dispute that the applicant only came to know of the existence of the certificates shortly after the commencement of the Tribunal hearing, copies of such certificates having been handed over to the applicant at that time.
For the purpose of appreciating the relevance of findings made by this Court in relation to the s. 375A certificates, the reasons of this Court handed down on 22 May 2020, 1 April 2021 and 6 April 2021 are incorporated into, and are intended to form part of, this judgment. [10]
[10] See Khaira v Minister for Home Affairs & Anor [2020 FCCA 1264; Khaira v Minister for Home Affairs
(No 2) [2021] FCCA 659; Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687.
After the handing down of the Court’s reasons on 22 May 2020, the 15 December 2015 s. 375A certificate recorded at p. 522 of Exhibit 1 was identified by Counsel for the applicant as being unsigned, and therefore defective, so as to render it invalid. That assertion was conveyed to the lawyers for the first respondent at a time shortly prior to the listed hearing of this matter on 3 August 2020. Such hearing was adjourned in order to allow the lawyers for the first respondent to receive appropriate instructions as to the validity of such certificate in the light of the matters raised by Counsel for the applicant. Following the adjournment of such hearing, the first respondent, upon instructions, conceded that the 15 December 2015 s. 375A certificate located at p. 522 was invalid, and that the documents protected from disclosure by such certificate should have been provided to the applicant at the time of the initial s. 362A request. [11] The documentation behind the certificate at p. 522 of Exhibit 1 was provided to the applicant by the first respondent in an un-redacted form by Order of this Court on 16 February 2021. Such documentation relevantly formed part of Exhibit 3.
[11] See paragraph [35] of the first respondent’s consolidated written submissions filed on 26 May 2021.
On 16 March 2021, the applicant filed an Application in a Case seeking, inter alia, an order for the first respondent to make discovery of the document or documents protected from disclosure by the 7 December 2015 s. 375A certificate recorded at p. 521 of Exhibit 1. This Court, by judgment handed down on 8 April 2021, ordered that the first respondent disclose to the applicant the document/s covered by the s. 375A certificate at p. 521 of Exhibit 1. [12] Such order was made on the basis that the first respondent’s claim for public interest privilege did not outweigh the possible importance of the document to the applicant in the conduct of her application. Such documentation relevantly formed part of Exhibit 6.
[12] See Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687.
Counsel for the applicant submitted that by reason of the failure of the Tribunal to produce to the applicant the contents of the documentation covered by the two s. 375A certificates, the Tribunal had failed to perform a mandatory statutory duty required to be performed by it in the exercise of its power, thereby resulting in the Tribunal failing to conduct a proper review.
The documentation claimed to be privileged under the purported s. 375A certificates, in each case, was ‘dob-in’ information relating to the applicant, but the information disclosed in the documents was different in one relevant respect – namely as to who the applicant was living with at the time of the making of the dob-ins. In Exhibit 3, the male person identified as ‘POI’ is the same male person identified in Exhibit 6 as ‘POI 1’. In Exhibit 3, the applicant was identified as being the person who was living with POI. In Exhibit 6, the applicant was identified as being ‘POI 4’, but she was so identified in the context of her living with her sponsor. The latter was arguably supportive of her living in a spousal relationship with her husband. The relevant parts of each set of documents touching upon the applicant’s living arrangements were as follows:
EXHIBIT 3:
“Source alleged POI is living with the female that the ute is registered too and that the female is currently the main applicant in a partner visa yet is living with POI and not the sponsor, as the relationship between the female and the sponsor of the partner visa is contrived and that the female has paid that sponsor a sum of money to be sponsored and obtain PR.”
EXHIBIT 6:
“POI 4 married the other guy just on paper. She is staying with him until she obtains PR and then will marry POI 1.”
At [11] – [12] of its reasons, the Tribunal discussed the two (2) certificates as follows:
“[11]The Tribunal disclosed to the applicant the existence of two 375A certificates dated respectively 7 December 2015 and 15 December 2015. In the view of the Tribunal those certificates are validly made because of the reasons stated in them and the justification given. The Tribunal provided copies of the certificates (with the name of the certifier redacted) to the applicant, and her registered migration agent, and asked whether they had any comments or submissions to make in relation to the certificates. No comments or submissions were made. The Tribunal notes that the failure to disclose the existence of these certificates in the course of the first review of this matter by the Tribunal was one of the reasons for the issue of the writs of certiorari and of mandamus.
[12]The Tribunal further notes that the orders made by consent by the Federal Circuit Court included that at least some of the documents the subject of the certificates were relevant or potentially relevant to the issues arising on the review, and further that the Tribunal fell into jurisdictional error for failing to put to the applicant for comment under s.359AA of the Act the allegation that the applicant paid a sum of money to be sponsored on or around 15 December 2015. Accordingly, the Tribunal put the gist of a number of matters arising from the material covered by the s.375A certificates to the applicant. Those matters included the applicant paying the sponsor for the marriage, and living with another person whilst claiming to be in a married relationship with the sponsor. The only response the applicant made was to say that she did not know where her previous husband is. That issue will be dealt with later in this decision.”
Again, at [44] of its reasons, in purported compliance with the provisions of s. 359AA of the Act, the Tribunal said as follows:
“[44]The Tribunal also put to the applicant pursuant to the provisions of s.359AA of the Act that it had information that she had paid money for the marriage, and that throughout the marriage she had lived with someone else. The applicant's response was that she did not know where her previous husband is. In any event, the Tribunal places no weight upon these allegations, as they were made anonymously.”
(underlining added)By only advising the applicant during the course of the hearing that the Tribunal had information which suggested that the applicant was living with ‘someone else’ (presumably someone other than her sponsor), the Tribunal failed to perform its duty under s. 360 of the Act because, notwithstanding the clear existence of documentation in its possession which arguably contradicted such information, it failed to advise the applicant that it had information in its possession which suggested, in support of the applicant’s claims, that the applicant was living with the sponsor. Moreover, it did so under the erroneous view both of the certificates were valid. Section 360 of the Act relevantly provided as follows:
“360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
It was the duty of the Tribunal to conduct a hearing which was fair in all respects. Only revealing the existence of the two certificates to the applicant and her adviser shortly after the commencement of the Tribunal hearing unfairly prejudiced the applicant in the advancement of her claims. The applicant was prevented from having a real and considered opportunity to seek advice as to the validity of the certificates as a whole, or as to whether such certificates were in part invalid. Further, the late provision of particulars under either ss. 359A or 359AA, in the circumstances of this matter, did not allow the applicant or her adviser sufficient time to formulate arguments in response to what was put to the applicant by the Tribunal.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said as follows:
“[35]The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
The fact that the Tribunal purported to comply with its duty to give to the applicant clear particulars of information which it had concerning the applicant paying her sponsor to marry her, as well as information about the applicant living with ‘someone else’ – that, presumably, being information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review – was, in the circumstances, irrelevant for the purpose of a consideration as to whether it was or was not conducting a fair and just hearing under s. 360 of the Act.
Section 359AA relevantly provided as follows:
“359AA Information and invitation given orally by Tribunal while applicant appearing
“(1) 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.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Consideration of What Constitutes a Failure to Perform a Mandatory Statutory Duty
The Tribunal, at [44] of its reasons, did not exhibit fairness to the applicant when it ‘put to the applicant pursuant to the provisions of s. 359AA of the Act… that throughout the marriage she had lived with someone else’. The Tribunal had before it dob-in information which suggested that she was living with her husband, the sponsor. At the least, the Tribunal ought to have put to the applicant that it had information that she was both living with POI, as well as the information that she was living with the sponsor, before giving to the applicant ‘clear particulars’ of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review. It had that obligation irrespective of whether or not it had said that it had disregarded such information on the basis that it was anonymously provided by way of a dob-in. [13] By failing to advise the applicant that the Tribunal had other dob-in information which in part was supportive of the applicant’s claims about her being the sponsor’s spouse and that they were living in a spousal relationship, the applicant was deprived of the opportunity to use such information when making submissions in support of her claims.
[13] Paragraphs [44] and [60] of Tribunal’s reasons.
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294, the High Court was there dealing with whether the Tribunal had or had not failed to comply with the provisions of s. 424A of the Act. That section was not dissimilar to s. 359AA of the Act, and relevantly provided as follows:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) 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 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) 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 424AA.
(3) 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.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
At [68] – [71] inclusive of SAAP, McHugh J said as follows:
“[68]In SRFB, the Full Court held that "the only implied limitation [on s 424A] can be one of fairness in the way in which the statutory obligations are observed." The Court held that each case turns on its own facts. "[I]t is impossible to spell out the content of this limitation in more precise terms." However, the Court observed that "[a]n example of procedural unfairness would be if an interviewing officer were to inform an applicant at the hearing that, although the requisite statutory notice would be given after the hearing, the applicant would be treated more favourably if he or she responded orally without waiting for the notice." In SRFB, the Full Court found that the Tribunal formed the view at a s 425 hearing that certain information in an application for a tourist visa was a reason or part of a reason for affirming the decision. The "interviewing officer gave the [applicants] a choice as to whether to respond immediately or to await receipt of the statutory notice before providing a response." The Tribunal gave the applicants a s 424A notice after the hearing. The Court held that in these circumstances the applicants had not been denied procedural fairness. However, the assumption that no breach of s 424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the section. Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.
[69] Before the primary judge, the Minister accepted that there was no written notification given under s 424A. Mansfield J found that s 424A applied and that the Tribunal failed to comply with the obligation to give the first appellant in writing particulars of the adverse information obtained from her daughter's evidence. The Minister did not seek to challenge the finding before the Full Federal Court or before this Court that a technical breach of s 424A had occurred. However, the Minister contended that the word "must" in s 424A(1) did not impose a mandatory obligation on the Tribunal "in all circumstances" to provide the adverse information in writing. The Minister also contended that, even if there was a failure to comply with s 424A, such failure did not amount to jurisdictional error with the result that the Tribunal's decision was invalid.
[70]Because the language of s 424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section. Gray J remarked in VEAJ that:
"It is clear from sub-s (2) [of s 424A] that the Tribunal cannot discharge its obligation by giving to an applicant oral particulars of the information in the course of a hearing. The obligation of the Tribunal to give both the particulars and an indication of the relevance of the information by one of the means specified in s 441A, or by the prescribed means of giving documents to persons in detention, makes it clear that the particulars and the explanation of relevance must be reduced to writing. Even in the case of relatively simple, and perhaps uncontroversial, items of information, the Tribunal is not given the option of raising them with an applicant in the course of a hearing and giving an oral explanation of its view as to their relevance. The Tribunal must give written particulars and a written explanation."
[71]His Honour's approach should be followed. There was some debate before this Court as to whether the term "must" in s 424(1) necessarily imposed a "mandatory" requirement to provide the information in writing in all circumstances. However, in the absence of any qualifying terms, the natural meaning of the section is that the Tribunal is compelled in all circumstances to provide the information in writing. This is so, even if the Tribunal puts the information to the applicant at an interview or when the applicant appears before the Tribunal to give evidence and present arguments. Such a construction is consistent with the purpose of the section to accord the applicant procedural fairness in the conduct of the review.”
[footnotes omitted]
At [207] – [208] inclusive of SAAP, Hayne J said as follows:
[207]It is clear that want of procedural fairness may constitute jurisdictional error. As Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex parte Aala:
"However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for 'trivial' breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v)."
In the present matter, although the provision now in question was, as I have pointed out earlier, one of several intended to achieve procedural fairness, the immediate focus is not upon the "observance of fair decision-making procedures". It is upon "the character of the decision". Has the Tribunal validly decided the review? Or is the decision reached in the review, in breach of s 424A, invalid?
[208]Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
[footnotes omitted]
The Court finds that it was imperative that the Tribunal so carried out its functions that no accusation could be made against it that it was ‘picking and choosing’ which part of the information covered by the s. 375A certificates it was prepared to pass on to the applicant. The failure on the part of the Tribunal to fully appraise the applicant of the conflicting nature of the dob-in information the subject of the certificates left the Tribunal open to the accusation that it was not acting fairly toward the applicant. The language of s. 359AA was such as to impose a mandatory duty upon the Tribunal to contextually explain to the applicant, in a way which the applicant understood, the effect of all of the dob-in information which was before it which related to a matter central to her claims. The Tribunal failed to do so in the context of it having important information in its possession which was arguably of assistance to the applicant. The Court finds that the review failed for that reason, that such failure was jurisdictional in nature, and that the review was not conducted validly in accordance with ss. 348, 349 and 360 of the Act.
Section 357A, Section 359A and Section 375A of the Act
The question as to how a Tribunal ought to perform its function having regard to the provisions of ss. 359A and 375A was considered in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305. At [12] – [13] of Singh, it was held by Kenny, Perram and Mortimer JJ as follows:
“[12]There is a potential tension between s 359A and s 375A. If the Tribunal proposes to use a document or information which is subject to a s 375A certificate as part of its reasons for affirming a decision under review, s 359A appears to require the Tribunal to give an applicant particulars of that document or information which, at the same time, s 375A requires not to be disclosed.
[13]There are conflicting views about how this apparent tension might be resolved. In Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [21] and [28], Dowsett J considered that the prohibition in s 375A on the provision of a document or information certified under it outflanked any obligation on the Tribunal under s 359A to provide particulars of that document or information. But in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 at 31 [40], Wilcox J concluded that the provision of particulars could be done without necessarily disclosing the document or information certified under s 375A. We return to this tension later in these reasons.”
The resolution of how a Tribunal is required to deal with issues which touch upon the tension last referred to will depend upon the unique circumstances of each case. In the present matter, the Court respectfully adopts what was said in Singh at [24] – [68] of the Court’s judgment, and finds that the Tribunal ought to have decided, prior to the hearing, that the 15 December 2015 certificate was invalid.
Did the Tribunal Comply with the Provisions of s. 362A of the Act?
By letter dated 6 September 2017, the lawyers for the applicant sought access to the material before the Tribunal. The 15 December 2015 certificate ought realistically to have been identified by the Tribunal, as at 6 September 2017, as not validly attracting privilege. The certificate had a basic flaw which rendered it invalid – namely it was unsigned. It was held by this Court that the undisclosed documents the subject of such certificate were not the subject of a valid claim of privilege. The applicant and her lawyers were not able to access such documents until after the Court had made orders for the disclosure of un-redacted copies of the documents covered by such certificate.
The Court finds that the legislature intended that the words ‘entitled to’, in s. 362A(1) of the Act were to have the effect that an applicant had a rightful claim to access all written material which was before the Tribunal, other than those documents rightfully the subject of a claim for privilege under s. 375A of the Act. [14] It was regrettable that an application for such access was not made to the Court until after the Tribunal had handed down its decision. In the light of this Court’s finding that the applicant had a rightful claim to access such documents well prior to the time of the Tribunal hearing, and because the applicant did not have such access, the Court finds that the Tribunal failed to discharge its obligations under s. 362A of the Act. The Court further finds that such failure was jurisdictional in nature because it went to the very root of the applicant’s entitlement to be fully informed about all material and information which was before the Tribunal. That material conceivably could have assisted the applicant in the conduct of her application. Such obligation on the part of the Tribunal coexisted with its obligation to ensure that the hearing conducted by it was fair. Had all of the material covered by both certificates been disclosed to the applicant, the Court finds that that Tribunal could realistically arrived at a different decision.
[14] Shorter Oxford English Dictionary; Little v Registrar of High Court of Australia (1991) 101 ALR 247 at
255.35.
A consideration of the provisions of s. 57(2) of the Act is relevant for the purpose of considering how s. 362A operates. Section 57(2) of the Act provided as follows:
“57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review applicant; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note:Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.”
When considering whether or not there was non-compliance with the provisions of s. 57(2) of the Act, Gordon J in Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 at [49] said as follows:
“[49]As explained by the plurality in Plaintiff M174, the consequences of non-compliance with s 57(2) are twofold. First, as "[c]ompliance with s 57(2) is a condition of the valid performance of the duties of the Minister to consider a valid application ... non-compliance renders a decision to refuse to grant a visa invalid in the sense that the decision is ineffective in law to achieve that result". A writ of certiorari should issue to quash the impugned decision. Second, as "the duties of the Minister to consider and determine the application remain unfulfilled" by reason of the non-compliance with s 57(2), "their performance is able to be compelled by a constitutional writ of mandamus", and such a writ should issue.”
[footnotes omitted]
If the applicant had a rightful claim to access all of the material in the possession of the Tribunal under s. 362A of the Act, it was the Tribunal’s obligation to ensure that the applicant had such access. In that sense, the duty on the part of the Tribunal was mandatory. Because the Tribunal failed to fulfil its mandatory statutory duty, the Tribunal erred in a jurisdictional sense. That was another aspect of the failure on the part of the Tribunal to conduct a fair hearing. In such circumstances, the Court finds that the Tribunal was so fundamentally in error, that the implied obligation to act fairly was unmet. Questions of materiality of such error, in the circumstances, do not arise.
The Court finds that Ground 5 of the Originating Application for Review has been made out.
In the light of the Court’s findings with respect to Ground 5, it is unnecessary for the Court to deal with Grounds 2 and 4 of the Originating Application for Review.
The applicant has established jurisdictional error on the part of the Tribunal.
The decision of the Tribunal is quashed.
The Court will hear the parties as to costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 17 August 2021
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