Nguyen v Minister for Immigration
[2007] FMCA 453
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 453 |
| MIGRATION – Migration Review Tribunal – spouse visa – whether s.359A letter identified relevant information – whether s.359A letter adequately explained relevance of information – whether Tribunal required to make enquiries – whether Tribunal failed to consider relevant material – application allowed. |
| Migration Act 1958, ss.54, 359A Migration Regulations 1994, reg.1.15A, sch.2 cl.100.221 |
| Davis v Minister For Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 Lek v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418 M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SCAS v Minister for Immigration and Multicultural Affairs [2002] FCA 598 SHJB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 43 SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370 SZAQI v Minister for Immigration & Multicultural Affairs [2006] FCA 1653 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs WAFP v Minister for Immigration and Indigenous Affairs [2003] FCAFC 319 Wang v Minister for Immigration and Citizenship [2007] FCA 488 Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 | ||
| Applicant: | DUC TOAN NGUYEN | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1314 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 27 March 2007 |
| Date of last submission: | 27 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2007 |
REPRESENTATION
| Advocate for the Applicant: | Francis Lim |
| Solicitors for the Applicant: | Francis Lim |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | DLA Phillips Fox |
DECLARATION
The decision of the second respondent made in matter V05/06632 is unlawful, void and of no force and effect.
ORDERS
There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter V05/06632 made on 5 September 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to said decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 5 September 2006.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1314 of 2006
| DUC TOAN NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 19 October 2006 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 5 September 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant the applicant a partner visa.
The applicant is a 32 year old male citizen of Vietnam. He arrived in Australia on 11 December 2001 as the holder of a visitor visa. On
9 February 2002, the applicant married Thi Yen To (“the sponsor”) in Melbourne. He then returned to France, his usual place of residence. On 18 July 2002, he applied for a subclass 309 (provisional) visa and subclass 100 (permanent) visa. On 25 November 2003, the applicant was granted the temporary visa and he arrived in Australia on
19 January 2004.
On 1 December 2005, a delegate of the first respondent refused the permanent partner visa application. On 22 December 2005, the applicant applied to the Tribunal for review of the decision of the delegate. On 26 September 2006, the Tribunal handed down its decision dated 5 September 2006 affirming the decision of the delegate refusing to grant a permanent partner visa.
On 19 October 2006, an application for judicial review of the Tribunal’s decision and a supporting affidavit sworn by the applicant on 18 October 2006 were filed in this court. On 10 January 2007, the applicant filed contentions of fact and law and two further affidavits. On 24 January 2007, the first respondent filed contentions of fact and law.
The legislation
The relevant criteria for the grant of a permanent partner visa are set out in clause 100.221 of Schedule 2 of the Migration Regulations 1994 which states that:
Criteria to be satisfied at time of decision
(1)The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or
…
(b)the applicant is the spouse of the sponsoring spouse; and
(c)subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
“Spouse” is relevantly defined in regulation 1.15A as follows:
1.15A Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
…
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ae)a Partner (Provisional) (Class UF) visa; or
…
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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.
…
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
Initial claims
The applicant said that he met the sponsor in a refugee camp in Hong Kong in 1989. The applicant went to France to live and the sponsor came to Australia, as did the applicant’s sister, Xuan Nguyen. The applicant said that he came to Australia on 11 December 2001 to visit his sister. He said that he and his mother and sister visited the sponsor’s family on 13 December 2001. The applicant said that his relationship with the sponsor developed quickly and he asked her to marry him on 5 January 2002. She accepted on 6 January 2002 and they were legally married on 9 February 2002. A wedding party was held on 24 February 2002 attended by about 20 relatives from both sides. The applicant returned to France in March 2002 and applied in France for a partner visa on 18 July 2002. He was granted a temporary partner visa on 25 November 2003. The applicant returned to Australia on 14 January 2004. He claimed that, since then, he and the sponsor had been living at the applicant’s sister’s house.
The applicant submitted a large number of documents to the department in support of his claim including statements of a joint bank account, wedding and other photographs, utility bills, receipts and various statutory declarations including:
a)a statutory declaration made on 4 October 2004, in which Thi Dung Phuong Vu stated that she had known the applicant and the sponsor since January 2004 when they moved in to 15 Hall Street Ardeer. She said, ‘[w]e would often see each other and at times will have a talk. I have also been in their house several times. On average, I would see them weekly.’;
b)a statutory declaration made on 4 October 2004, in which the applicant’s cousin, Thi Lan Hoang, stated that she had been many times to the house of the applicant and the sponsor and would meet up with them every one to two weeks for get togethers;
c)a statutory declaration made on 1 April 2005, in which Thi Tram Vu said that she met the applicant and the sponsor at a party and said ‘…I see them both from time to time when they would come and visit me’; and
d)a statutory declaration made on 6 April 2005, in which Thi Hue Hoang stated that she had been a good friend of the applicant since 1987 and since meeting the sponsor, would ‘… meet up once every two weeks for get togethers and visits.’
Section 359A notice
On 16 August 2005, departmental officers conducted a home visit at 151 Hall Street Ardeer. That was the home of the applicant’s sister and her husband and children where the applicant and sponsor claimed to also live. Among other things, the sponsor was unable to describe the contents of the cupboards and drawers in the bedroom that she and the applicant claimed to occupy. The delegate rejected the application largely on the basis of the home visit. On 9 March 2006, the Tribunal wrote to the applicant and invited him to comment on the following information:
Information that was gathered during a home visit by officers of the Department on 16 August 2005, and is set out in the enclosed report (see attached). This information would be the reason, or part of the reason, for affirming the decision under review because it casts doubt on your claim to have been cohabitating in a genuine and continuing spousal relationship with the sponsor since the date on which you arrived in Australia.
On 5 April 2006, the Tribunal received a response dated 1 April 2006 from the sponsor which said:
1.I was unable to identify the items in our bed room as I have explained to the officers of the Department on the day of the visit that my sister in law usually moves our items around. As we do not own the house and there are many people living in the same household, we usually share wardrobe and the limited storage space. Sister in law is the housewife and the house owner thus it is her daily duties to clean and put her children’s clothes, her family’s and our belongings where she wants them to be.
…
4.I am able to locate only my personal items but still it is beyond my control if my sister in law had moved my belongings around without my knowledge. I was angry at her that night as once again she had invaded our personal space.
5.“I am not doing very well am I?” – I asked that question at the time because it seemed that night, everything was going against me. My sister in law had moved my room around and I failed to identify my belongings in their usual spots. …
Evidence before the Tribunal
On 5 June 2006, the applicant’s agent hand delivered to the Tribunal documents said to evidence joint financial commitments including various receipts and bank statements for two separate accounts, one in joint names and the other in the name of the applicant alone.
At the Tribunal hearing on 7 June 2006, oral evidence was given on a range of matters. Among other things, the applicant said that he and the sponsor moved shortly after the departmental home visit to live with the sponsor’s mother at 17 Kosky Street, Sunshine. The Tribunal summarised the applicant’s evidence on this issue at [17] as follows:
He claimed that this move came about as a result of conflict between the sponsor and the review applicant’s sister, because “the house was a mess” and because the latter’s alleged habit of moving her belongings (including her most personal belongings) had led her to be unable to answer the departmental officers’ questions during the home visit.
The Tribunal summarised the sponsor’s evidence on this issue at [19] as follows:
… She said that she and the review applicant moved from Ardeer to Sunshine in about August 2005, following arguments about the review applicant’s sister’s alleged habit of arbitrarily moving the sponsor’s belongings and “invading my privacy”. She said that her sister-in-law had been doing this since she moved into her house in January 2004. The Tribunal asked why, if this intrusive behaviour had been going on throughout the 18 months in which she claimed to have lived in her house, she had not either resolved the matter or moved out. She did not answer directly, simply saying that the review applicant’s sister tried to assume a maternal role in their lives, and that she was particularly angry with her sister-in-law after the home visit by Departmental officers, when (in her view) her inability to locate items led to the visa being refused.
Tribunal’s reasons for decision
In its reasons for decision, the Tribunal addressed the factors set out in reg.1.15A(3). In relation to the financial aspects of the relationship, the Tribunal said at [29] that:
… There is no evidence of joint assets or liabilities of any significance, and no evidence that either party owes any legal obligation in respect of the other. Some receipts have been provided for household appliances and other items. However, the Tribunal attaches very limited weight to them, as most were issued after the home visit in August 2005, and many bear the names of the parties written in the same handwriting.
In relation to the nature of the household, the Tribunal said at [30] that:
The parties claim that they cohabited at the home of the review applicant’s sister in Ardeer from the date of his arrival in January 2004 until shortly after the home visit in August 2005, when they moved into her mother’s house in Sunshine West. The evidence gathered by the delegate and the other officers during the home visit of 16 August 2005 casts the most serious doubt on the veracity of those claims. Invited to comment on the evidence under s.359A of the Act, the sponsor fundamentally sought to ascribe her comprehensive inability to describe the contents of the drawers and cupboards in her claimed matrimonial bedroom to her sister-in-law’s alleged proclivity for arbitrarily reorganising even her most personal belongings. The Tribunal rejects that claim as irretrievably implausible, together with the related assertion that it was her inability to locate her belongings as a result of that proclivity that led the sponsor and the review applicant to move to the home to the sponsor’s mother in West Sunshine shortly after the home visit. Challenged by the officers about that inability during the home visit, the sponsor is recorded as having said she did not know and did not care.
In relation to the social aspects of the relationship, the Tribunal said at [31] that:
The parties have provided written and oral statements by an assortment of relatives and friends, all of whom vouch for the genuineness of their claimed relationship. None of them indicates that they have any social contact with the parties. The Tribunal accepts that the parties have met, that they have married, that they may associate with others occasionally, and may represent themselves as a couple within an extremely limited familial circle.
In relation to the nature of the commitment of the applicant and the sponsor to each other, the Tribunal said at [32] that:
The Tribunal takes into account that the parties have been married for over four years, that the review applicant entered Australia on 19 January 2004, and accepts that there may have been a continuing association of sorts between them. The Tribunal also accepts that since the Department’s visit to the review applicant’s address in August 2005, the parties have assembled material designed to satisfy the Tribunal that they are genuinely living together as spouses in an exclusive and committed relationship. However, the circumstances in which the parties were found to be living at that address and the dearth of evidence of a prior spousal relationship within the meaning of regulation 1.15A suggest to the Tribunal that the latter measures should appropriately be seen as a belated attempt to salvage the review applicant’s immigration claim, rather than as a bona fide manifestation of spousal commitment. The Tribunal is not satisfied that the parties have lived together at the same address for six months or longer, and so does not extend the benefit of the presumption in subregulation 1.15A(5). The Tribunal finds that the totality of the evidence does not remotely support the parties’ claims to be involved in a mutually committed, exclusive spousal relationship, as required by regulation 1.15A of the Regulations.
On this basis, the Tribunal concluded that the applicant did not satisfy the requirements of clause 100.221 of Schedule 2 and affirmed the decision under review.
Grounds of review
In the application filed on 19 October 2006, the applicant set out the following grounds of review:
The decision of the Second Respondent was made without jurisdiction or is affected by an error of jurisdiction in that it was made contrary to law.
PARTICULARS
The decision was made contrary to the provisions of Sections 54 and 57 and Part 5 of the Migration Act 1958 and Regulations 100.221 and 1.15A of the Migration Regulations.
Alternatively, the decision was made in breach of the rules of natural justice in that the delegate of the Second Respondent did not accord procedural fairness to the Applicant and it was made without having regard to all relevant matters.
The applicant also said in the application that further particulars were set out in the affidavit sworn by the applicant on 18 October 2006. Various aspects of that affidavit, and other affidavits filed by the applicant, were objected to by the first respondent at the hearing before this court. In the end, the applicant chose not to rely on those affidavits.
Applicant’s written contentions of fact and law
In his written contentions of fact and law, the applicant at [66] said that there were two main issues for determination by the court. They were described as follows:
A. The Statutory Issue:
I)Whether, having regard to the terms of the Act and specifically sections 54(1) and 349(1), the Second Respondent had failed to have regard to all the information in the application as defined in section 54(2) of the Act?
II)Whether the Tribunal had contravened section 359 of the Act in failing to make the necessary inquiries?
III)Whether, having regard to the terms of the Act and specifically section 359A, the Tribunal was bound to give the Applicant written notice of certain relevant information having regard to the significance of these information as the reason, or part of the reason, for refusing to grant a permanent spouse visa to the Applicant and invite him to comment on the information?
IV)Whether, having regard to the terms of the Act, the Second Respondent complied with the requirements of section 359A by sending a letter to the Applicant dated 09 March 2006 which invited the Applicant to comment on the following information:
“Information that was gathered during a home visit by officers of the Department on the 16 August 2005, and is set out in the enclosed report (see attached). This information would be the reason, or part of the reason, for affirming the decision under review because it casts doubt on your claim to have been cohabiting in a genuine and continuing spousal relationship with the sponsor since the date on which you arrived in Australia.” [See CB 436-456]
B.The Discretionary Issue:
Whether the Applicant is guilty of any misconduct which would result in him forfeiting his rights for relief under Section 476 of the Act and Section 39B of the Judiciary Act 1903.
Ground 1: adequacy of Section.359A letter
The first ground relied upon by the applicant at the hearing before this court was that the s.359A letter sent by the Tribunal to the applicant was inadequate in that it did not properly explain the relevance of the information contained in it. The s.359A letter, the substance of which is set out at paragraph 9 above, enclosed an eight page record of the home visit on 16 August 2005 and copies of 12 photographs that were taken during that home visit. The applicant noted that s.359A(1) of the Migration Act 1958 (“the Act”) provides that:
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(c) invite the applicant to comment on it.
The applicant submitted that the Tribunal had failed in its obligation to explain the relevance of the information contained in the home visit report and the photographs because the Tribunal merely said the information “casts doubt on your claim to have been cohabiting in a genuine and continuing spousal relationship with the sponsor since the date on which you arrived in Australia.” The applicant argued that he was left confused and perplexed by the quantity of information that had been provided to him and the lack of any specific statement about its relevance.
The first respondent argued that the Tribunal had complied with s.359A of the Act by giving the applicant a copy of the information relied upon and by saying it was relevant to the review because it cast doubts on the applicant’s claim to have cohabited with the sponsor in a genuine spousal relationship since arriving in Australia. The first respondent argued that the Tribunal was not required to set out its reasoning process in relation to the information. In relation to the claim that the applicant was confused by the large quantity of material, the first respondent noted that the applicant was represented throughout by a migration agent and, in any event, the substance of the information was well known to the applicant because it had been the subject of the delegate’s decision. In this regard, the first respondent referred to SCAS v Minister for Immigration and Multicultural Affairs [2002] FCA 598.
The first respondent further argued that the Tribunal’s finding about the implausibility of the sponsor’s explanation for not knowing what sort of items were in each of the drawers and cupboards in her alleged bedroom was a credibility finding which was a matter for the Tribunal, par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per Mc Hugh J at [67]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]. The first respondent further argued that the Tribunal was not required to put to the applicant its disbelief in the claims prior to concluding that the explanations offered were implausible: SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 at [31]-[32]; WABY v Refugee Review Tribunal [2005] FCA 209 at [69]; SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 274 at [39]-[40]; SZBCP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 743 at [31]; WALS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1642 at [26]. The first respondent also submitted that the Tribunal’s appraisal on the issue of credibility was not ‘information’ for the purposes of s.359A: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].
Consideration of ground 1
The obligation on the Tribunal was to ensure, as far as reasonably practicable, that the applicant understood the relevance to the review of the information that was provided under s.359A of the Act. The information that the Tribunal provided was the report of the home visit including the photographs taken on that occasion. The Tribunal set out in the s.359A letter the reason that the information was relevant as follows:
This information would be the reason, or part of the reason, for affirming the decision under review because it casts doubt on your claim to have been cohabitating in a genuine and continuing spousal relationship with the sponsor since the date on which you arrived in Australia. (emphasis added)
The information provided in the s.359A letter led the Tribunal to seriously doubt that the applicant and sponsor had cohabited since the applicant’s arrival in Australia. At [30], the Tribunal said that “The parties (sic) claim that they cohabited” was “irretrievably implausible”. The possibility that the Tribunal would form that view was clearly foreshadowed in the s.359A letter.
In Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396, the Full Court of the Federal Court considered the requirements under s.424A of the Act, which is the equivalent of s.359A in relation to refugee matters. Justice Allsop said at [104]:
[104] The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]). (emphasis added)
In Wang v Minister for Immigration and Citizenship [2007] FCA 488 at [28] to [29], Besanko J said:
[28] The Full Court considered the obligations in s 424A of the Act in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. In material respects, that section is in the same terms as s 359A. The Court held that the Tribunal had failed to comply with s 424A(1)(a) and s 424A(1)(b). The Court said (at [40]-[41]):
[40] As mentioned above, the obligation on the Tribunal was to ‘ensure, as far as is reasonably practicable’, that the respondent understood why the information set out in the s 424A letter was relevant to the review. No practical or other difficulty stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s 424A letter did not explicitly tell the respondent that the relevance to the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false. The Tribunal’s failure to state explicitly the relevance to the review of the information concerning the respondent’s letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident.
[29] It is to be noted that the case involved a breach of both of the subparagraphs, whereas this case involves an alleged breach of subparagraph (b). It is also to be noted that the Court said that the use the Tribunal could make of the information as particularised was not self-evident. In my opinion, there may well be cases where the relevance of the information to the review is self-evident and no letter or explanation is required to satisfy the requirements of s 359A(1)(b). However, in this case I think that the Tribunal was required to do more than it did. The Tribunal should have advised the appellant that the non-certification by the university that her academic results were at least satisfactory would constitute a breach of a condition attached to her student visa. It may not have been necessary for the Tribunal to go on and say that in those circumstances cancellation of the visa was mandatory but, at the very least, the Tribunal should have advised the appellant that the information was relevant because it would constitute a breach of a condition attached to her visa. (emphasis added).
In my view, the explanation given by the Tribunal, in the context of this case, was adequate. The Tribunal relied on the information to conclude that the applicant’s claims to have cohabited with the sponsor for a particular time were implausible. That is the possibility that the applicant was alerted to in the s.359A letter.
Moreover, in this particular case, the applicant was well aware that the record of the home visit might lead to a conclusion that the applicant and sponsor did not live together on a genuine basis because the delegate had come to that conclusion as well. The explanation that the sponsor’s sister-in-law moved around the personal possessions of the applicant and the sponsor had been put forward verbally during the home visit and was also rejected by the delegate, presumably on the basis that the explanation offered was implausible. Accordingly, this is not a case where the issue on which the decision ultimately turned was unknown to the applicant.
I accept that the Tribunal provided no particular explanation of the relevance of the copy photographs provided with the report of the home visit. However, the photographs were clearly intended to provide a visual aid to assist in the interpretation of the report of the home visit. While the information provided with the s.359A letter was extensive, and the Tribunal did not explain how each statement in the report and how each photograph led to the formation of its doubts that the applicant and sponsor cohabited as spouses, the overall relevance of the information was explained succinctly and clearly. That is all that was required of the Tribunal. It was not required to set out in detail its thought processes. This ground is not made out.
Ground 2: failure to give proper consideration to the evidence
In his written submissions in relation to this ground, the applicant said the following:
[67] The Tribunal should not dismiss any claims of the Applicant as implausible if such claims have not been disproved by proven facts nor so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal, therefore, was bound to examine and deal with all documents submitted by the Applicant and justify by appropriate findings of fact and reasoning therefrom its treatment of the material. Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 at [86]
[68] In Prasad v Minister for Immigration and Ethnic Affairs 65 ALR 549, 559 Wilcox J. said, “The third matter relied upon in support of this ground is the failure of the Minister to have regard to the contents of the eight statutory declarations which were furnished to the department in support of the application for internal review. The evidence indicates that the declarations were available both to the Panel and to the Minister but there is nothing to indicate that either decision maker took any notice of them. They are not mentioned in the reasons for either decision. Although the members of the Panel questioned Mr Berry and Mr Collins, they did not seek comment on this new material. The members of the Panel appear not to have posed for themselves the obvious question whether the content of the declarations called in question the reliability of the officers' views.
A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so. [212]
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (15 June 2004) KIEFEL, WEINBERG & STONE JJ
[69] In finding that “...the circumstances in which the parties were found to be living together as spouses in an exclusive and committed relationship” and that “the dearth of evidence of a prior spousal relationship within the meaning of regulation 1.15A” [CB 508 para 32] and concluding that: “The Tribunal is not satisfied that the parties have lived together at the same address for six months or longer, and so does not extend the benefit of the presumption in sub-regulation 1.15A(5) and finding that “the totality of the evidence does not remotely support the parties’ claims to be involved in a mutually committed, exclusive spousal relationship, as required by regulation 1.15A of the regulations, the Tribunal had failed to give any or give any due and proper consideration to the following matters placed before the Tribunal in the Applicant’s application for a Permanent Spouse visa in the contravention of Sections 54(1) and 349(1) of the Migration Act 1958 (“the Act”): …
A long list of items that were said to have not been considered was set out in the applicant’s written submissions. However, in the oral hearing before this court, the applicant confined his argument to six categories of documents which he said the Tribunal had not considered. Those categories were receipts, letters, statutory declarations made by friends of the applicant, statutory declarations made by the applicant, the sponsor and their relatives, utility bills and 89 photographs.
More particularly, the applicant argued that the Tribunal had found at paragraph 31 of its reasons for decision that “None of [the statements from the applicant’s friends and relatives] indicates that they have any social contact with the parties” when the four statutory declarations described at paragraph 8 above (“the four statutory declarations”) clearly indicated that the makers of the declarations did have social contact with the parties. The applicant noted that the Tribunal at paragraph 8 of its reasons for decision said it had before it folios 1 to 61 of the Tribunal’s file when the four statutory declarations, which were presented to the Department, were marked with folio numbers between 153 and 187. This indicated, in the applicant’s submission, that the Tribunal did not have the four statutory declarations before it and did not consider them. The same point was made about the other categories of documents. This question is considered below.
The applicant’s written submissions also claimed that:
a)the applicant and the sponsor had lived together for two and half years at 151 Hall Street Ardeer;
b)the Tribunal had brushed aside the statutory presumption in reg. 1.15A(5) of a genuine relationship where the parties had cohabited for six months or more;
c)the Tribunal had wrongly failed to conclude that the parties were in a genuine exclusive relationship because there was no evidence of either party having an affair;
d)the Tribunal had erred by concluding that the applicant and sponsor might represent themselves as a couple within “an extremely limited familial circle” when reg. 1.15A(3)(c)(i) only requires the Tribunal to consider whether the parties represent themselves to other people as a couple, not whether they represent themselves to the wider community as a couple; and
e)the Tribunal had uncritically accepted the record of the home visit and did not give genuine consideration to the other documents in the case.
The first respondent’s written submissions on this ground were as follows:
Failure to have regard to information in the application – (paras 67-81)
[13] The applicant contends that the Tribunal failed to have regard to all the information in the application and failed to give any or any proper consideration to certain material before the Tribunal.
[14] The question of whether a person is a ‘spouse’ of another, is essentially a question of fact and evaluative judgment for the decision-maker: Re Minister for Immigration and Multicultural Affairs & Ors: Ex parte Cohen (2001) 177 ALR 473 at [35]-[36]. The Tribunal’s reasons disclose that it considered matters made relevant by reg 1.15A(3) and weighed up the evidence before it on each of those aspects in determining that it was not satisfied that the applicant was in a spousal relationship as at the date of its decision.
[15] The Tribunal was not required to refer to each specific item of evidence relied upon by the applicant in order to complete its jurisdictional task. [Footnote: In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court said at [14]: ‘The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.’; and in Vargas v Minister for Immigration & Multicultural Affairs [2001] FCA 1025; Kenny J said at [28]: ‘…The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593 per Kirby J; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per Mc Hugh J and Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point). No inference of error can be drawn from the Tribunal’s failure to refer specifically to the applicant’s statement that he campaigned for his candidate.; and in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said at [57]: ‘57...Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. "Relevant" for this purpose means that the decision-maker is bound by the statute or by law to take this into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42.; Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 [131, 132]’. See also Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1113 at [21]-[42].] In Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297, Nicholson J, with whom Kiefel and Downes JJ agreed said:
[6] The first ground of appeal alleges that the primary judge erred in holding that the Tribunal was not required to refer to every piece of evidence placed before it. It also alleges that the primary judge wrongly applied such principle in the case of the cancellation of the appellant’s visa. The reference to the principle was made by the primary judge in the penultimate paragraph to his reasons where he said at [28]:
‘Similarly, I consider that the Tribunal adequately addressed the relationship between the applicant and his mother at [21] of its reasons. In a matter in which an applicant seeks a particular type of visa, the Tribunal is required to deal with all integers of an applicant’s claim. It is not required to refer to every piece of evidence placed before it. See generally Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, and VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447. Although the applicant in the present case does not seek a visa, and is simply resisting deportation, an analogous principle may be said to apply.’
[7] In the passage from Paul, Allsop J (with whom Heerey J agreed) stated the following:
‘A failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made where the claim has been addressed is not a jurisdictional error constituted by a failure to take into account a relevant consideration’.
[16] In so far as the applicant further contends that the Tribunal failed to consider those matters within reg 1.15A(3), the Tribunal considered each aspect of those matters within reg 1.15A(3) to the extent that it considered the evidence as relevant to each matter. The Tribunal was not required to make express findings about each of the matters set out in each placitum to each sub-paragraph of that sub-regulation: Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]; Davis v Minister For Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35].
[17] The applicant’s complaints concerning the Tribunal’s consideration of the matters arising under reg 1.15A(3) are essentially with the Tribunal’s process of reasoning on issues of fact, and are an invitation to merit review of the Tribunal’s decision within jurisdiction. The applicant’s contentions in this regard invite the Court to engage in an approach to the Tribunal’s decision which is mandated against by the High Court. In the context of an application for judicial review, it is well known that the Tribunal’s reasons should receive a beneficial construction, and should not be scrutinised in an overly critical or overly zealous fashion in order to glean some inadequacy in the way the reasons are expressed or ‘with an eye keenly attuned to the perception of error’: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272. In making its findings, the Tribunal was not required to accept the applicant’s claims uncritically. [Footnote: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR at 4437 at 451; NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1106.] It was not moreover required to have rebutting evidence available to it. It was ultimately a factual question for the Tribunal. [Footnote: ‘That other decision-makers may have reached a different view, and have done so reasonably, is not to the point.’: Minister v Eshetu (1999) 197 CLR 611 per Gummow J at [147].] Moreover, there is no basis for review simply because the court disagrees - even profoundly disagrees - with the weight given by the decision maker to the various factors relevant to his or her decision or the factual findings made. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43; [2003] FCAFC 303 the Full Court (at (12]) quoted the decision of Selway J at first instance, where his Honour had said:
[16] I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
`A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.'
In oral submissions, the applicant relied upon Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 at [86] per Lee J and [117] to [118] per Tamberlin J. Those paragraphs are as follows:
[86] Putting to one side that, as discussed earlier in these reasons, the foregoing findings may have misstated part of the appellant’s claims in some degree, the matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described by the appellant did not happen. The Tribunal may not have been persuaded that events occurred as claimed but it had no material on which it could convert such a doubt into a positive finding that the events had not occurred. The Tribunal, therefore, was bound to examine and deal with the documents and justify by appropriate findings of fact and reasoning therefrom its treatment of the material.
…
[117] A positive finding that documents are contrived or fraudulent is a strong adverse finding. Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility. A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case. This is particularly so in cases concerning refugees, where documentary evidence may be of greater assistance than oral assertions in establishing facts which cannot, in any meaningful sense, be properly investigated by way of probative independent evidence. Of course, in some cases, there is country information which indicates that forgery of documents and fabrication of false documents is prevalent in that country or region. Such information is one matter to be taken into account. However, in the present case, several important documents have been dismissed without any proper investigation, examination or consideration. These omissions may have had a significant bearing when balancing considerations for and against a finding of lack of credibility.
[118] I consider that the Tribunal did not properly deal with the claims made by the appellant in this matter. This is because of the critical role played by the finding on credibility and the importance of the letters, which, on their face, are reliable and supportive of the appellant’s case, and because of the failure of the Tribunal to make a number of simple phone calls to verify the authenticity of the documents. The failure of the Tribunal to deal with the case sought to be made by the appellant and the documentary evidence called for findings by the Tribunal as to the authenticity and weight of the documents. This was not done. To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to "implausibility" support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.
The applicant argued that the Tribunal had relied so heavily on the record of the first interview that it had closed its mind to all of the other documents that supported the genuineness of the marriage. The applicant also referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at paragraph 212 per Madgwick J (with whom Conti J agreed). Paragraph 212 is as follows:
[212] There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
The applicant also referred to Lek v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418 at pages 435 to 436 where Wilcox J said, among other things:
It seems to me that this reasoning fails to address the specific claims made in the two letters. The matters mentioned by Mr Paterson were relevant to his decision. But they were merely general considerations. General positions may be subject to exceptions. If the claims made in the letters are true, and if they fairly represented a position that continued when Mr Chung's application was being considered, it was not good enough to rely upon evidence of the general situation. I think that Mr Paterson failed to give this matter proper consideration. Proper consideration of the specific claims may involve the making of inquiries in Cambodia, but that is no reason to absolve the delegate from the task of investigating them. The decision concerning Mr Chung must be set aside.
The applicant also relied upon the judgment of Keely J in Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 where his Honour said at page 299:
Given the fact that the department had acted upon the basis that the telephone conversation had taken place and its acceptance of the applicant's account of what was said by the mother in that conversation (although it had not decided to accept the truth of what was said by the mother in that conversation), in my opinion the delegate failed to take into account a relevant consideration, namely, the applicant's claim that it was likely that she would be arrested and detained the moment she returned to Poland. In referring to the claim as to the likelihood of that occurring I am not making any assumption that the claim is true or not true. It is relevant that the interview at the Embassy in Warsaw with the mother did not deal in any direct way with the question whether there was such a "likelihood"; doubtless that was because the Embassy was not given sufficient information. However, whatever the cause, in my opinion that question was not the subject of any real inquiry at all - either in Poland or in Australia. In my opinion this matter was one of those: "… occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts." per Wilcox J. in Singh v. Minister for Immigration and Ethnic Affairs (unreported - 4 December 1985).
…
In my opinion the delegate's failure to have regard to the applicant's claim as to events in Poland and the likelihood of her arrest on her return was a failure in respect of an important matter and in itself is sufficient to warrant an order setting aside the decisions.
The applicant also made mention of Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 in which Gummow and Hayne JJ said:
[51] However, in the light of the detailed specification of the criteria for the grant of the various classes of visa, including protection visas, it is impossible to treat the consideration by the Minister's delegate (and hence the Tribunal) of what are the relevant criteria (the issue in Applicants S134), and the satisfaction thereof, as other than conditions precedent to the making of a valid decision to grant or refuse to grant a visa under s 65. Further, certain observations by Gaudron and Kirby JJ in Applicants S134 (not on an issue upon which the division in the Court turned) are, with respect, compelling. Their Honours said:
"The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker's actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked."
The applicant noted that the first respondent relied upon paragraphs 19 and 20 of Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 but said that that case was distinguishable because the Tribunal in that case had dealt with all of the relevant factors. The court said in Zhang that the Tribunal did not have to evaluate each and every item of evidence. The present case was different, in the applicant’s submission, because there was no reference at all to the statutory declarations and that led to the conclusion that they had been ignored. Similarly, the first respondent’s reliance on Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 was misplaced in the applicant’s submission because in that case the Tribunal had in fact considered all of the aspects of the case, albeit without expressly considering every item of evidence.
The first respondent said in oral submissions that the Tribunal did not have to have rebutting evidence to reject the applicant’s claims and that weight was a matter for the Tribunal. The first respondent referred to SHJB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 43 which cited the reasons of Selway J at first instance as follows:
[12] His Honour then said this:
‘I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.’
This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39]-[53], [100]-[103], [122]-[147], [183]-[194]. However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal. Plainly there was material before it that justified its conclusion. Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion. It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it.
Having concluded that the applicant was not from Afghanistan, but instead was from Pakistan, the conclusion by the Tribunal that the temporary visa should be cancelled was almost inevitable. If the correct information had been given in the application as is required by s 101 of the Act it would seem clear that the applicant would never have been granted a visa in the first place.
In the absence of any jurisdictional error in the reasoning or decision of the Tribunal, the application for judicial review must be dismissed.’
The first respondent pointed out that the Tribunal definitely had a copy of the delegate’s decision. I accept that. There is a copy of it at page 425 of the court book with a stamp indicating that it was received by the Tribunal on 22 December 2005. The first respondent noted that, in her decision, under the heading, “the social aspects of the relationship”, the delegate had said:
In support of social recognition of their claimed relationship, the applicant and the sponsor provided statutory declarations from their friends Ms VU Thi Tram and Ms HOANG Thi Hue, who have both written statements in which they express their opinion that there is a genuine spousal relationship between the parties. I have given no weight to their statutory declaration (sic) as findings at the home visit, and information obtained at the interview, had lead to my conclusion that there is not a genuine spousal relationship between the parties.
The first respondent relied upon that statement as an indication that the Tribunal was aware of and took account of the four statutory declarations. However, I note that the passage cited only indicates that the Tribunal may have been aware, through its reading of the delegate’s decision, of the statutory declarations referred to in paragraphs 8(c) and (d) above and does not indicate that the Tribunal had any awareness at all of the statutory declarations referred to in paragraphs 8(a) and (b) above. Also, the delegate’s decision did not note that the statutory declarations supported any social interaction between the applicant’s friends and relatives and the applicant and the sponsor although they clearly say that there was social interaction between the applicant and the sponsor and the makers of the statutory declarations, only one of whom was a family member.
The first respondent also argued that the Tribunal accepted that the parties “may associate with others occasionally and may represent themselves as a couple within an extremely limited familial circle”, thus suggesting that the Tribunal had had regard to the four statutory declarations described in paragraph 8 above.
Consideration of ground 2
The applicant’s written submissions claimed that the applicant and the sponsor had lived together for two and half years at 151 Hall Street Ardeer. That claim was rejected by the Tribunal so it cannot be accepted by this court as a fact. Similarly, the applicant’s submission that the Tribunal had brushed aside the statutory presumption in reg.1.15A(5) of a genuine relationship where the parties had cohabited for six months or more must be rejected because the Tribunal did not accept that the parties had cohabited for six months or more. The applicant submitted that the Tribunal had wrongly failed to conclude that the parties were in a genuine exclusive relationship because there was no evidence of either party having an affair. However, the absence of evidence of any other relationships does not of itself mean that the parties were in a genuine spousal relationship. There was no error in that regard.
The applicant in his written submissions also argued that the Tribunal had erred by concluding that the applicant and sponsor might represent themselves as a couple within “an extremely limited familial circle”. The applicant submitted that reg.1.15A(3)(c)(i) only requires the Tribunal to consider whether the parties represent themselves to other people as a couple, not whether they represent themselves to the wider community as a couple. In my view, the Tribunal considered the correct question and concluded that the applicant and sponsor represented themselves only to “an extremely limited familial circle” as a couple. There was no misconstruction of the regulation in that regard. However, the question of whether the Tribunal may have failed to consider the four statutory declarations which attested to social contact with the applicant and sponsor is addressed below.
The applicant in his written submissions said that the Tribunal had uncritically accepted the record of the home visit and did not give genuine consideration to the other documents in the case. The Tribunal was entitled to prefer some evidence over other evidence and was under no obligation to set out a critical appraisal of the evidence it accepted. Subject to the Tribunal giving proper consideration to the other evidence in the case, the Tribunal did not err in its reliance on the report of the home visit.
The Tribunal said at paragraph 8 of its reasons for decision that it had before it the departmental case file containing folios 1-61 and the Tribunal case file containing folios 1-67. It is apparent from the court book that the departmental case file included at least 196 folios. The Tribunal did not refer to the documents that had been before the delegate except the home visit report which was set out in full in the Tribunal’s reasons for decision. Otherwise, the Tribunal referred only to documents that were submitted directly to the Tribunal: see paragraph 14 of the Tribunal’s reasons. Nevertheless, the Tribunal noted at [31] that:
The parties have provided written and oral statements by an assortment of relatives and friends, all of whom vouch for the genuineness of their claimed relationship. None of them indicates that they have any social contact with the parties. The Tribunal accepts that the parties have met, that they have married, that they may associate with others occasionally, and may represent themselves as a couple within an extremely limited familial circle. (emphasis added)
The first sentence of that paragraph indicates that the Tribunal was cognisant of some written statements from the applicant’s relatives and friends. It is not clear which written statements the Tribunal was referring to. There appear to have been no written statements provided directly to the Tribunal by any of the applicant’s relatives or friends and there appear to be no written statements by relatives or friends included in the first 61 folios of the departmental file. However, there was oral evidence given to the Tribunal by Hue Hong, a friend, Truc Hong, a neighbour, Loan Nguyen, a friend, Xuan Nguyen, the applicant’s sister, and Kuc Nguyen, the sponsor’s mother: court book 490. Also, there were the four statutory declarations that bear folio numbers ranging from 153 to 187, and the reference in the delegate’s decision to the third and fourth of those statutory declarations. Also, the applicant himself lodged with the department a statutory declaration made on 5 March 2002, which appears to have been folio 31 of the departmental file, in which he said that:
Since the marriage, we have always considered and been treated by relatives, friends as husband and wife as follows:
-lived together at my sister’s home of 151 Hall Street, Ardeer
- go shopping every week
- see movies and get together with friends
- attend Tet festival
-going out together …
In these circumstances, and in view of the findings made below in relation to the other categories of documents identified by the applicant, I am satisfied that the Tribunal did not have before it the four statutory declarations and did not consider them in making its decision. I am satisfied that in making its findings at paragraph 31 of its reasons for decision, that the Tribunal relied on, at most, the applicant’s statutory declaration made on 5 March 2002, the oral evidence given directly to the Tribunal and possibly the reference in the delegate’s decision to two of the four statutory declarations.
In relation to the receipts that were said to evidence joint purchases, it is apparent from the court book that there were a good many receipts submitted to the department by the applicant. However, relatively few of them appear in the first 61 folios of the departmental file. More particularly, there are receipts marked folio 45, 46 and 47, another marked folio 98 and many others in the court book that have no folio number at all. On the other hand, the applicant’s migration agent submitted directly to the Tribunal the day before the Tribunal hearing another bundle of receipts. Those receipts are described in detail at paragraph 14 of the Tribunal’s decision. There is no similar description of the receipts provided directly to the department.
In relation to the receipts, the applicant noted that at paragraph 29 of the Tribunal’s reasons for decision it said:
Some receipts have been provided for household appliances and other items. However, the Tribunal attaches very limited weight to them, as most were issued after the home visit in August 2005, and many bear the names of the parties written in the same handwriting.
The applicant took issue with the Tribunal’s finding that most of the receipts were issued after the home visit in August 2005. On my calculation, 10 out of 14 of the receipts submitted directly to the Tribunal were issued after the home visit in August 2005. On the other hand, it appears that somewhat less than half of the receipts submitted to the delegate were issued after the home visit in August 2005. This suggests that the Tribunal did not have before it or consider the receipts that were before the delegate. That possibility is reinforced by the Tribunal’s statement that it only had before it folios 1-61 of the departmental file. I conclude that the Tribunal did not have before it, and did not consider, any receipts other than those marked folios 45, 46 and 47 and those submitted directly to the Tribunal. More particularly, I conclude that the Tribunal made its findings at paragraph 29 of its reasons for decision, about the financial aspects of the relationship, without having before it or having regard to the other receipts that had been submitted and that are in the court book.
The Tribunal made no mention of the 89 photographs provided to the delegate. There seems to be no prospect that those photographs were contained in the first 61 folios of the departmental file as those folio numbers appear to be taken up with other documents. Accordingly, I find that the Tribunal did not have the 89 photographs before it and it did not take them into account in considering the social aspects of the relationship or the genuineness of the relationship.
As to the letters sent by the sponsor to the department, in which she claimed to live at the applicant’s sister’s address, I note that those letters bear folio numbers higher than 61 and the Tribunal has not mentioned them in its reasons for decision. Similarly, the statutory declarations from the applicant, the sponsor and the applicant’s brother in law were not mentioned by the Tribunal and some at least of them bear folio numbers higher than 61. The Tribunal did not mention the utility bills in its decision and they bear folio numbers higher than 61.
In all the circumstances, I am satisfied that the Tribunal did not have before it and did not consider the six categories of documents identified by the applicant. While the Tribunal is under no obligation to mention every item of evidence before it, the fact that it said it only had folios 1-61 of the departmental file, and the fact that it made a finding that it could not realistically have made if it had looked at the four statutory declarations, makes it clear that the Tribunal did not have before it or consider the six categories of documents identified by the applicant.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ said at [82]:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52; 176 ALR 219). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (Craig (1995) 184 CLR 163 at 179). (emphasis added)
In the present case, the Tribunal clearly did not have before it and did not consider material, being the documents provided to the delegate with folio numbers higher than 61. At least some of that material was relevant on any view, namely, the four statutory declarations. They said that the makers of the statutory declarations had social contact with the applicant and the sponsor. This was clearly a relevant matter because the Tribunal itself treated the issue of social contact as a relevant matter.
The Tribunal mistakenly said that none of the people who had provided statements said they had social contact with the applicant and sponsor. The Tribunal’s mistaken belief that none of the makers of the statutory declarations had said they had social contact with the applicant and sponsor was part of the Tribunal’s reason for decision. The fact that the Tribunal accepted that the applicant and sponsor socialised together within an extremely limited familial circle does not overcome the problem. All but one of the makers of the four statutory declarations were friends rather than family members, and the family member was not a close family member but a cousin. In the circumstances, I am satisfied that the Tribunal failed to consider relevant material, consisting of at least the four statutory declarations, and thereby fell into jurisdictional error.
It may be said that there is a gloss on the High Court’s use of the words “relevant material” in Yusuf in that a jurisdictional error only occurs where there has been a failure to consider an integer of the claim, so to speak, rather than the evidence going to such an integer. However, this case is unusual in that I have found that the Tribunal did not have before it a substantial body of material that was before the delegate, at least some of which was relevant on any view. Accordingly, the error in this case is similar to, but more fundamental, than the error detected by the Full Court of the Federal Court in WAFP v Minister for Immigration and Indigenous Affairs [2003] FCAFC 319 where the court said at [21]:
However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].
Moreover, the Tribunal, by failing to have regard to the material that was before the delegate, failed to conduct a review of the delegate’s decision. In Muin v Refugee Review Tribunal (2002) 190 ALR 601, Kirby J referred to the nature of a review by the Refugee Review Tribunal said at [212] that:
[212] Given that the foregoing procedure was intended to be a real “review”, contemplating the possibility of occasionally producing a “decision or recommendation … that is most favourable to the applicant”, [footnote: the Act s 424(1)] it is unthinkable that the evidentiary foundation for such “review” should involve materials more limited than those available to the primary decision-maker. The obvious purpose of the review “on the papers” was to save the costs, inconvenience and delay that a full review with a hearing would require, as where an obvious mistake or misjudgment had occurred justifying immediate administrative correction. Such a conclusion would normally necessitate “review” by the tribunal of the same “material” as had been before the primary decision-maker, that is, the “papers”.
I also, with respect, consider that “it is unthinkable that the evidentiary foundation for such “review” should involve evidentiary materials more limited than those available to the primary decision-maker.” There is of course no material difference in this regard between the Migration Review Tribunal and the Refugee Review Tribunal. A purported review which is based on a fraction of the materials before the original decision-maker, especially where those materials were obviously relevant to the decision to be made, is no review at all.
While the Minister, and the delegate, by s.54 of the Act, must have regard to all of the information in the application in making a decision, there does not appear to be an equivalent provision in the Act in relation to the Tribunal. Nevertheless, the relevant matters for the Tribunal to take into account include the matters that the governing legislation expressly or impliedly requires the decision-maker to take into account: Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24. I have no doubt that the Act, impliedly, requires the Tribunal to at least have before it the material submitted by the applicant to the department. Other considerations might apply in relation to general country information, or the so-called Part B documents. However, it is inconceivable that a Tribunal, any more than a court, could review a decision without having before it the material that was before the original decision-maker. In purporting to do so, the Tribunal fell into jurisdictional error.
Alternatively, the Tribunal misunderstood an aspect of the claim. The Tribunal understood that there was no claim by the people who gave statements in support of the applicant that they had social contact with the applicant when in fact there was such a claim. This is not a mere error of fact that had no impact on the decision. The Tribunal expressly took into account its mistaken view of the claims that were made by the applicant’s friends on his behalf. In doing so, the Tribunal fell into jurisdictional error.
Ground 3: failure to make inquiries
The applicant’s written submissions on this point were as follows:
II) Whether the Tribunal had contravened section 359 of the Act in failing to make the necessary inquiries
[82] Although it is plain that Section 359 of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide. Applicant M164/2002 V Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 at [75]
[83] If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(i)(d). Applicant M164/2002 v Minister for immigration & Multicultural Affairs [2006] FCAFC 16 at [76]
[84] Where inquiries are within a narrow range and are easily made and answered, as would appear to be the case here, they should of course be made. NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [193]
[85] However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function. Applicant M164/2002 v Minister for immigration & Multicultural Affairs [2006] FCAFC 16 at [90]
[86] It is submitted that this is an obvious case in which the power available to the Tribunal should have been used, if the Tribunal were to be seen to be exercising its powers, and making decisions, in a fair and even-handed manner. Minister for Immigration and Multicultural and Indigenous Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Marsfield JJ at 561. Applicant M164/2002 v Minister for immigration & Multicultural Affairs [2006] FCAFC 16 at [66]
A. The Tribunal ought not to have rejected the receipts and tax invoices submitted by the Applicant without making any further inquiries as to their authenticity.
[87] It is trite law that the Tribunal’s function is inquisitorial and not adversarial. At paragraph 29 of CB 508 the Second Respondent stated: “Some receipts have been provided for household appliances and other items. However, the Tribunal attaches very limited weight to them, as most were issued after the home visit in August 2005, and many bear the names of the parties written in the same handwriting”. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [23]-[24], [26]. Applicant M164/2002 v Minister for immigration & Multicultural Affairs [2006] FCAFC 16 at [69] and [75]
[88] As a matter of fact, it is respectfully submitted that the Tribunal’s statement at paragraph 29 of CB 508 referred to above is blatantly inaccurate and baseless. The Applicant had submitted to the First Respondent’s delegate numerous Tax Invoices that predate the first home visit on the 16 August 2005. [See CB 73, 74, 110. 202, 205. 207, 208, 252, 253, 254, 255, 256. 283, 358, 364, 394 and 483]
[89] If the Tribunal rejected these receipts on the suspicion that they were fabricated and wished to affirm the delegate’s decision, it could not do so without first having made proper inquiries relating to the genuineness or otherwise of those receipts submitted by the Applicant. It is submitted that the Tribunal should have informed the Applicant of its suspicion and invited him to clarify or bring the appropriate witnesses to verify the authenticity of these documents. It would not be very difficult for the Tribunal to make a telephone call to the various traders who issued those suspicious Tax Invoices to verify their authenticity or otherwise. This was never done by the Tribunal. There is no evidence to even indicate that the Tribunal had raised this suspicion with the Applicant during the hearing before David Young on the 07 June 2006 or thereafter by letter prior to the making of its decision on the 26 September 2006. This suspicion was raised for the first time in its decision at CB 508. M164/2002 v Minister for immigration & Multicultural Affairs [2006] FCAFC 16 at [76-77] and [86] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [58]
B. The Tribunal ought not to have rejected the Applicant and his sponsor’s claim of his sister’s proclivity for arbitrarily reorganising her personal belongings as “irretrievably implausible” without making any further inquiries.
[90] At paragraph 30 of CB 508 the Tribunal stated: “Invited to comment on that evidence under s.359A of the Act, the sponsor fundamentally sought to ascribe her comprehensive inability to describe the contents of the drawers and cupboards in her claimed matrimonial bedroom to her sister-in-law’s alleged proclivity for arbitrarily reorganising even her most personal belongings. The Tribunal rejects that claim as irretrievably implausible, together with the related assertion that it was her inability to locate her belongings as a result of that proclivity that led the sponsor and the review applicant to move to the home of the sponsor’s mother …. Shortly after the home visit.”
[91] It would not be a hugely difficult task for the Tribunal to verify or disprove this proclivity of the Applicant’s sister by questioning her. In fact the Tribunal’s record at CB 490 shows that the Applicant’s sister Xuan Nguyen was present at the hearing before David Young on the 07 June 2006. There is no evidence to even suggest that David Young questioned Xuan Nguyen about her proclivity for arbitrarily reorganising her belongings in their bedroom. Why? There is no mention in its decision record that it did question Xuan Nguyen about her proclivity and her response to its question although it had comprehensively parroted out the record of the home visit by the First Respondent’s delegate which it blindly and wholly accepted and followed.
[92] It is respectfully submitted that the Tribunal member David Young who is not of Vietnamese origin and has no or very little knowledge of the Vietnamese culture would find it irretrievably implausible for a sister-in-law to go into the sponsor’s bedroom to reorganise her personal belongings.. Would someone of David Young’s Caucasian culture go into her sister-in-law’s room to re-organise her personal belongings? I dare say “NO!” I respectfully submit that it would be rare for a couple of Caucasian origin to live with their sister and brother-in-law or even with their parents-in-laws after their marriage, as happened in the case of the Applicant and his sponsor/wife. This is not something a person of David Young’s position would understand or believe could happen
[93] At the hearing on the 07 June 2006 David Young could have questioned the Sponsor’s mother, the Applicant’s sister and 2 friends and a neighbour who are all of Vietnamese origin in relation to his misconception. [See CB 490] There is no evidence that this was done.
[94] It is pertinent to note that the Tribunal in its record of decision never questioned how willingly and casually without hesitation the Applicant’s sister had led the First respondent’s delegate into the Applicant’s matrimonial bedroom and gave them free access. She did not even realise that she had no right to allow strangers to have full and free access to her brother’s and sister-in-law’s bedroom without their consent. She even gave them free access to her own bedroom and permitted them to take photographs in her own bedroom although they are in no way relevant to the Applicant’s application for a Permanent Spouse visa. [ CB 498]
Would someone of the Caucasian origin even imagine that this could happen? So, what is so irretrievably implausible about a lady such as the Applicant’s sister to have arbitrarily re-organised the sponsor’s personal belongings in their bedroom since the house belongs to her and her husband?
C. The Tribunal ought not to have concluded that none of the Applicants and his sponsor/wife relatives and friends indicated that they have any social contact with the parties without making any further inquiries .
[95] At paragraph 31 of CB 508 the Tribunal stated: “The parties have provided written and oral statements by an assortment of relatives and friends, all of whom vouch for the genuineness of their claimed relationship. None of them indicates that they have any social contact with the parties.” This statement is highly disputable.
a) Dung Phuong Thi Vu at CB135 declared under oath that: “We would often see each other and at times will have a talk. I have also been in their house several times.”
b) Thi Lan Hoang at CB 142 declared under oath that: “On average, we would all meet once every 1-2 weeks for getting together(s). ….I have many times been to their house and seen the union they share with one another.”
c) Thi Tram Vu at CB 168 declared under oath that: “Since then will see them both from time to time when they would come and visit me. … Whenever Toan and Yen come to visit me they would come together.”
d) Thi Hue Hoang at CB 171 declared under oath that: “We would meet up once every two weeks for get together(s) and visits.”
[96] There is no evidence to suggest that the Tribunal had raised this concern with the Applicant or attempted to question any of the 4 persons named above if it is not satisfied as to the social aspect of their spousal relationship. It is submitted that this would not be a hugely difficult task for the Tribunal to do if it was really concerned with this alleged lack of evidence to satisfy itself whether or not the Applicant and her wife (sic) did represent to their friends and relatives that they are a married couple.
[97] As such the Tribunal could not be said to have adequately considered the Applicants claims that:
a) He lived with his Sponsor/wife for 2 years 7 months as husband and wife as at 05 September 2006 at his sister’s house and his parents-in law’s house.
b)He had forwarded sufficient evidence to DIMA to show that he owes a legal obligation to his wife and vice versa.
c)His sister frequently re-organised their personal belongings in their bedroom which resulted in his Sponsor/wife’s comprehensive inability to describe the contents of the drawers and cupboards in her claimed matrimonial bedroom.
d) They had social contacts with their relatives and friends and represented to them as a married couple.
e) He has a mutually exclusive and committed spousal relationship with his Sponsor/wife at all material times.
f)His spousal relationship with his Sponsor/wife is at all material times genuine and continuing.
Waniewska v Minister for Immigration and Ethnic Affairs 70 ALR 284, 299 per Keely J
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418, at pages 435-436
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [193]
The first respondent’s written submissions on this point were as follows:
[18] There is no general duty to inquire. [footnote: The provisions of the Migration Act 1958 are relevantly the same for the Migration Review Tribunal and the Refugee Review Tribunal.] As Bennett J said in SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370:
‘12. ….The Tribunal had no obligation other than to consider the claims made by the appellant, as presented. The Tribunal was not obliged to conduct its own investigation or to seek out evidence for itself from India (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’).
…
25 The respondent submits that the appellant did not request the Tribunal to obtain evidence from a witness or seek further time to obtain evidence. In Re Ruddock; Ex parte S154 of 2002 (2003) 201 ALR 437 at [57] – [58] Gummow and Hayne JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions. In SGLB at [1], [19], [43] and [124], Gleeson CJ and Gummow and Hayne JJ, with Callinan J reaching a similar conclusion, held that the provisions of the Migration Act do not impose upon the Tribunal a duty to inquire. I accept the respondent's submissions on this aspect. The Tribunal is under no obligation to make out the appellant's case. The appellant's claim that the appellant had such a duty is not supported by any principle of law. I can find no error on the part of the Tribunal in respect of this aspect.’
[19] In VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178, the Full Court said:
‘23 The Act provides for the procedure to be followed by the Tribunal in the conduct of its review. The Tribunal is empowered to obtain oral evidence in this situation (see ss 424(1), 427(1), 429A) “but is not required” to do so (see s 426(3)). Moreover, in SAAP, Hayne J, having considered the statutory review scheme, observed that the review process undertaken by the Tribunal is a “predominantly documentary process” (at [192]).’
[20] In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, the Full Court (Black CJ, Sundberg and Bennett JJ) said:
‘20 …If his Honour meant that the Tribunal should have sought information from other sources available to it under s 424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
21 The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s 424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so.’
[21] The High Court re-visited the issue in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. At [43] Gummow and Hayne JJ, with whom Gleeson J agreed, said;
‘This ground of error is misconceived for two reasons. First, ... Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.’
[22] More recently in VUAX V MIMIA [2005] HCATrans 155 (Kirby and Hayne JJ, 11 March 2005) Kirby J said:
‘First, it was said that the Tribunal had declined to exercise its powers of inquiry by failing to secure an expert report of a document examiner on the authenticity of an arrest summons and subpoena document said to evidence a persecution in Jordan. If this was error, it was error in the conduct of the proceedings in the exercise of jurisdiction. It is not error that involved the Tribunal’s abandoning or stepping outside its jurisdiction.’
[23] See to the same effect; SZDZH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1533 at [13]; SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 at [17]-[20]; SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23]; SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC164 at [8]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277; Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 at [24].
[24] Accordingly, there was no obligation on the Tribunal to make inquiries as to the authenticity of various retail traders receipts. Further, there was no obligation to make inquiries as to the applicant’s sister’s claimed proclivity for reorganising the sponsor’s personal belongings, and no obligation to make further inquires regarding claimed social contact. It was open to the Tribunal to make findings in respect of the evidence presented without making further enquiry. Even if there were some residual requirement in some circumstances to make inquiries it certainly did not arise here. As the authorities have repeatedly made clear, it is for an applicant for review to provide the material to make out his or case. Kenny J made the point in Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 at [25]. Her Honour said:
‘Generally, it is for an applicant to provide the decision-maker with whatever information or material he or she may have that tends to support his or her case: cf Abebe v The Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ. The law imposes no obligation on the Tribunal to request the review applicant to meet a deficiency in the case that the applicant chooses to advance to the Tribunal.’
In oral submissions, the applicant accepted that there is no general duty to enquire, but argued that if the enquiry is simple, the enquiry should be made. The applicant submitted that in relation to the invoices, the Tribunal could have simply contacted the various suppliers and asked them for the appropriate details. The applicant also argued that the Tribunal implied that the invoices had been forged and argued that before making a finding of fraud or forgery, the Tribunal is obliged to make enquiries. In support of the proposition, the applicant referred to M164 at paragraphs 76 and 90, which are as follows:
[76] If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
…
[90] However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function.
The first respondent in oral submissions referred to the decision in SZALV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1370 at [12] and [25] which are as follows:
[12] In explanation, the appellant said that if he goes back to his country he will encounter many problems. He commented that other people from India had been accepted as refugees, that he was afraid to go back to India and that the Tribunal had not phoned India to try to find out more information about him. Much of this complaint relates to questions of fact. Factual findings are matters for the Tribunal and the findings of fact were available on the evidence. The Tribunal had no obligation other than to consider the claims made by the appellant, as presented. The Tribunal was not obliged to conduct its own investigation or to seek out evidence for itself from India (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’).
…
[25] The respondent submits that the appellant did not request the Tribunal to obtain evidence from a witness or seek further time to obtain evidence. In Re Ruddock; Ex parte S154 of 2002 (2003) 201 ALR 437 at [57] – [58] Gummow and Hayne JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions. In SGLB at [1], [19], [43] and [124], Gleeson CJ and Gummow and Hayne JJ, with Callinan J reaching a similar conclusion, held that the provisions of the Migration Act do not impose upon the Tribunal a duty to inquire. I accept the respondent's submissions on this aspect. The Tribunal is under no obligation to make out the appellant's case. The appellant's claim that the appellant had such a duty is not supported by any principle of law. I can find no error on the part of the Tribunal in respect of this aspect.
The first respondent argued that there was no obligation on the Tribunal to telephone the supplier of electrical goods and to verify the receipts that had been provided to the applicant. The first respondent argued that there had been no finding of forgery in relation to the receipts. Rather, the Tribunal had simply said that the receipts were being given little weight. The first respondent said that there was no obligation to inquire of the applicant’s sister about her claimed proclivity to rearrange the contents of other people’s cupboards and there was no obligation to make further enquiries about the level of social contact between the applicant and the sponsor and other people.
Consideration of ground 3
In my view, there was no obligation on the Tribunal to make the inquiries specified by the applicant. The High Court’s decisions in SGLB and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, and the decisions of the Full Federal Court in VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, are clear that the Tribunal has no duty make enquiries. Although the decisions in all four of those matters were handed down before M164 was decided, it did not refer to any of them. Similarly, NAJT was decided after SGLB and VUAX but did not refer to either of those High Court decisions. Accordingly, M164 and NAJT were arguably decided per incuriam. Whether they were or not, the High Court has made it abundantly clear that the Tribunal has no duty to make enquiries.
If there were any residual obligation to make enquiries, it would arise only where the enquiries were extremely simple to make and where the results of the enquiries would substantially resolve an issue central to the case. Enquiry into the matters nominated by the applicant would not have produced simple and unequivocal answers, but would have involved a considerable amount of oral evidence that was unlikely to have resulted in a clear resolution of a question in the case. Accordingly, even if there were a residual duty to enquire, it would not have arisen in this case. This ground is not made out.
Ground 4: Section.359A
The applicant’s written submissions on this point included the following:
III) Whether the Tribunal had contravened section 359A of the Act by failing to give the Applicant certain relevant information and invited him to comment on them?
[98] Section 359A of the Act provides that the Tribunal must give to the Applicant 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 provided this information was not given by the Applicant for the purpose of the application before the Tribunal.
[99] In SAAP the High Court held that pursuant to s 424A (which is a mirror image of Section 359A) the Tribunal was required to inform an applicant, in writing, of any material obtained by the Tribunal adverse to the applicant’s application, (including information obtained in the course of a hearing conducted by the Tribunal under s 425 of the Act)(which is a mirror image of Section 360), that would be the reason, or part of the reason, for the Tribunal affirming the decision under review. Applicant M164/2002 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 16 at [96]
[100] In SAAP (supra) Mc Hugh J who was a member of the majority in that case said at [para 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."
[101] In the latest High Court decision on this issue, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (15 December 2006) at paragraph 35 the High Court said: “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.”
[102] At paragraph 43 the High Court said: “The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did add to the issues that arose on the review.”
[103] Any breach of the requirements of section 359A of the Act would constitute jurisdictional error. Accordingly, non-compliance would render the Tribunal’s decision invalid. SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [110]. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 per McHugh at [77], per Kirby J at [173] and per Hayne J at [208]
[104] It is submitted that the Tribunal did rely on the following information as the reason, or part of the reason, for making its decision which were not raised as live issues by the First Respondent’s delegate in her decision [See CB 406-412]:
a.The Tribunal’s rejection as irretrievably implausible the claim by his wife that her inability to describe the contents of the drawers and cupboards in their bedroom was due to the proclivity of the Applicant’s sister in arbitrarily reorganising her personal belongings in their bedroom.
b.The Tribunal’s rejection of receipts submitted by the Applicant on suspicion that they were fabricated resulting in the Tribunal making an adverse inference relating to the Applicant’s and his wife’s credibility.
[105] At paragraph 30 CB the Tribunal said: “The Tribunal rejects that claim as irretrievably implausible, together with the related assertion that it was her inability to locate her belongings as a result of that proclivity that led the sponsor and the review applicant to move to the home to the sponsor’s mother (sic) shortly after the home visit.” The Tribunal did not give any written notice to the Applicant to inform him that his sponsor’s claim in relation to the proclivity of his sister in reorganising her personal belongings in their bedroom was a live issue which would adversely affect his and his sponsor’s credibility and would be a reason or part of a reason for refusing him a permanent spouse visa and invite him to comment on this claim. Even at the hearing before the Tribunal, the member did not point out to the Applicant that his sponsor’s claim of his sister’s said proclivity was a serious life (sic) issue although this is not sufficient to comply with Section 359A read with section 360 of the Act. Applicant M164/2002 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 16 at [96]
[106] At CB 508, paragraph 29 the Tribunal said: “Some receipts have been provided for household appliances and other items. However, the Tribunal attaches very limited weight to them, as most were issued after the home visit in August 2005, and many bear the names of the parties written in the same handwriting.”
[107] It is submitted that the Tribunal did rely on the information in paragraph 104 to seriously doubt his and his wife’s credibility. It is submitted that this was the reason or part of the reason for affirming the delegate’s decision. The Tribunal relied on the said information to reject the Applicant’s claim that he and his wife are married and have cohabitated since their marriage for 2 years and 7 months at the 2 addresses mentioned above.
[108] As such it is submitted that before making the decision to affirm the delegate’s decision the Tribunal ought to have written to the Applicant to give him the relevant particulars as they were never raised as issues in the delegate’s decision. The Tribunal should also indicate to the Applicant clearly that the said information has caused the Tribunal to question his and his wife’s credibility and to invite him to comment on the apparent conflict. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 [para 35 & 43]
The applicant referred to the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 in his written submissions but the applicant abandoned any reliance upon that decision in the hearing before this court. In oral submissions, the applicant argued that the response to the Tribunal’s s.359A letter about the report from the home visit was provided in the form of a letter from the sponsor rather than from the applicant. The applicant argued that the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 meant that the Tribunal was required to put the sponsor’s response to the applicant in writing. At paragraph 16 of its reasons for decision the Tribunal said:
The Tribunal explained the purpose and scope of the hearing, set out a chronology of events culminating in the present hearing, and confirmed that the review applicant had read and understood the delegate’s decision record. Noting that the sponsor had already provided a written response on behalf of the review applicant to the Tribunal’s s.359A letter of 9 March 2006, the Tribunal asked him whether he wished to add anything, or was happy with the response that had been provided. He indicated that he had nothing to add.
The applicant particularly argued that the Tribunal was required to put to the applicant in the form of a s.359A letter its conclusion that the evidence that the applicant’s sister had a proclivity to rearrange other’s people’s possessions was “irretrievably implausible”.
The applicant relied upon M164 at paragraph 96 which states as follows:
In SAAP the High Court held that pursuant to s 424A the Tribunal was required to inform an applicant, in writing, of any material obtained by the Tribunal adverse to the applicant’s application, (including information obtained in the course of a hearing conducted by the Tribunal under s 425 of the Act), that would be the reason, or part of the reason, for the Tribunal affirming the decision under review. The applicant also emphasised paragraphs 116 and 177 of his written submissions which are as follows:
[116] The Tribunal had contravened Section 359A of the Act because it did not notify the Applicant in writing in relation to the following information which would be the reason, or part of the reason, for affirming the decision of the First Respondent’s delegate refusing to grant the Applicant the permanent spouse visa, which would not be obvious and known to the Applicant and invited him to comment on them:
(a)What evidence that was purportedly gathered by the delegate and other officers during the home visit of 16 August 2005 which case the most serious doubt on the veracity of those claims. [See paragraph 30 of CB 508]
(b)How each of the 12 photographs attached to the delegate’s record of the first home visit [CB 324-335] considered by the Tribunal to be adverse to the Applicant’s claim that his spousal relationship with his sponsor/wife is genuine and continuing.
(c)Its purported conclusion that they (sic) are some receipts for household appliances and other items that bore the names of the Applicant and his wife/sponsor apparently written in the same handwriting. [See paragraph 29 of CB 508]
(d)The response given by the Applicant and his wife/sponsor to the Tribunal on the 07 June 2006 at the hearing that she bought a house in her sole name. [See paragraph 29 of CB 508]
(e)The reason given by the Applicant’s wife/sponsor to explain her inability to describe the contents of the drawers and cupboards in our bedroom at 151 Hall Street, Ardeer 3022 Victoria in response to the Tribunal’s letter to the Applicant dated 09 March 2006 purportedly pursuant to Section 359A of the Act. [See paragraph 30 of CB 508]
(f)The response of the Applicant’s wife/sponsor when challenged by DIMA officers about the inability during the home visit in August 2005 when she was recorded to have said, “I don’t know, I don’t care really”. [See paragraph 30 of CB 508]
(g)Any other responses by my wife/sponsor given to the DMIA (sic) officers during the home visit in August 2005 which caused the Tribunal to arrive at an adverse conclusion/inference relating to the credibility of the Applicant and his wife/sponsor with regards to their continuing spousal relationship.
(h)Any other responses by his wife/sponsor given to the DMIA (sic) officers during at (sic) the interview and home visit in October 2005 which caused the Tribunal to arrive at an adverse conclusion/inference relating to the credibility of the Applicant and his wife/sponsor with regards to their continuing spousal relationship.
(i)Any other responses by his wife/sponsor given to the Tribunal in June 2006 at the hearing which cause the Tribunal to arrive at an adverse conclusion/inference relating to the credibility of the Applicant and his wife/sponsor with regards to their continuing spousal relationship.
[117] The letter dated 09 March 2006 send by the Tribunal to the Applicant purportedly sent pursuant to Section 359 of the Act [See CB 436-456] did not comply with the requirements of Section 359A of the Act for the following reason:
(a)The Record of BFU Home Visit on the 16 August 2005 ran into 8 pages of small print and there are also 12 photographs, some of which contained handwriting.
(b)The Applicant was totally confused by the huge amount of information contained therein. It was difficult for the Applicant to understand why and how each of the many allegations or matters or questions or answers or conclusions made by the First Respondent’s delegate contained at CB 437-456 were relevant to the review or to the Tribunal’s affirming the decision of the First Respondent’s delegate.
(c)In addition, the Applicant was also at a loss as to why and how each of the 12 photographs and the contents of the handwriting on some of the photographs were relevant to the review or relevant to the Tribunal affirming the decision of the First Respondent’s delegate.
(d)The Tribunal did not set out clearly in writing what information at CB 437-456 it considered would be relevant to review or relevant to the Tribunal affirming the decision of the First Respondent’s delegate and why they were so relevant. The Tribunal ought to have set out the details as referred to in paragraph 116 above to comply with Section 359A of the Act.
(e)The applicant was also never been asked in writing whether he understood why and how this huge amount of information was relevant to the review or relevant to the Tribunal affirming the decision of the First Respondent’s delegate.
The first respondent in written submissions referred to s359A and relevantly said:
[26] That section does not mandate that the Tribunal provide particulars of any information which it relies on, simply by reason of the fact that the delegate did not rely upon the same information.
…
[28] In any event, the matters referred to by the applicant were not ‘information’ but simply findings of fact on evidence presented.
[29] Similarly, s359 of the Act does not require the Tribunal to give particulars of information which was relied upon by the delegate, as a reason for the delegate’s decision, whether or not the delegate may have done so. The Tribunal was conducting de novo merits review, and what the delegate may or may not have done is of no relevance: NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898 at [89]; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [79]; WAKT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1337 at [64]; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 211 ALR 261.
In relation to the Tribunal’s conclusion that it was “irretrievably implausible” that the applicant’s sister moved things belonging to others, the first respondent said in oral submissions that the applicant’s own evidence summarised at paragraph 17 of the Tribunal’s reasons for decision included the claim that his sister had a habit of moving the sponsor’s belongings. In the circumstances, the information had been provided by the applicant directly to the Tribunal and there was accordingly, in the first respondent’s submission, no obligation upon the Tribunal to provide that information back to the applicant.
In relation to the information contained in the response to the Tribunal’s s.359A letter, which was provided by the sponsor, the first respondent argued that the Tribunal was only required to put the relevant information to the applicant, not to ensure that it was the applicant who responded. The first respondent relied upon the decision of SZAQI v Minister for Immigration & Multicultural Affairs [2006] FCA 1653, a decision of Bennett J which, the first respondent argued, said that there was no need to provide a s.359A letter in relation to information provided by a witness called by the applicant. To the extent that Bennett J may have said that, it is irrelevant to the present matter, as the issue does not concern statements made by a witness called by the applicant but statements made in a letter sent to the Tribunal by the sponsor.
Consideration of ground 4
The Tribunal, in paragraph 29 of its reasons, said that it attached very little weight to the receipts. The Tribunal was entitled to give such weight to the receipts as it saw fit. Its conclusions about the receipts were a matter of the evaluation of evidence, rather than a conclusion drawn from information provided by someone other than the applicant. Accordingly, there was no information in relation to the receipts that the Tribunal was obliged to furnish to the applicant pursuant to s.359A of the Act.
In relation to the sponsor’s response to the s.359A letter, I note that there is nothing in the court book to indicate that it was sent to the Tribunal by the applicant or his agent. It appears to have been sent by the sponsor herself directly to the Tribunal. The sponsor is not the applicant. Information provided by the sponsor to the Tribunal is not information provided by the applicant to the Tribunal, unless it is first given to the applicant or his agent who passes it on to the Tribunal. The fact that the applicant or his agent might have known everything that was contained in the sponsor’s response does not mean that there is no obligation to forward a s.359A letter in respect of that information. That is made clear by SAAP, where the information in question was given by the applicant’s daughter in the presence of the applicant’s agent.
However, in the present case, the first respondent says that the information contained in the sponsor’s letter was the same as the information that was provided by the applicant himself directly to the Tribunal at the Tribunal hearing. The applicant’s evidence set out at paragraph 17 of the Tribunal’s reasons for decision was that his sister had a habit of moving around the sponsor’s most personal possessions and this had caused the applicant and sponsor to move to the sponsor’s mother’s house. The information that the Tribunal referred to at paragraph 30 of its reasons for decision was that the sponsor had sought to explain her inability to describe the contents of her alleged bedroom drawers and cupboards on the basis that her sister-in-law moved around the sponsor’s possessions.
The only difference between the information the applicant gave at the oral hearing and the information the Tribunal referred to was its source, namely, the sponsor. I do not consider that the Tribunal is obliged to provide a s.359A letter to an applicant where it obtains the same information from two sources, one of which is the applicant.
In any event, properly analysed, the “information” that the applicant’s sister had a tendency to rearrange other people’s possessions was not the reason or part of the reason for affirming the decision under review. The information that the Tribunal relied on in reaching its decision was that the sponsor was unable to identify the contents of the drawers and cupboards in her alleged matrimonial bedroom. The “information” that the sister had a tendency to rearrange other people’s possessions was put forward as an explanation for the sponsor’s inability in that regard. The explanation was rejected by the Tribunal in its evaluation of the evidence. Accordingly, the explanation was not information that became the reason or part of the reason for affirming the decision under review. This ground is not made out.
Conclusion
As ground 2 has been made out, and as there are no discretionary considerations to the contrary, the application must be allowed to with costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 19 June 2007
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