SINGH v Minister for Immigration - [2019] FCCA 3252

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3252

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal made an unreasonable finding – whether the Tribunal was legally unreasonable – whether the Tribunal breached s.359AA and s.359A of the Migration Act1958 (Cth) – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 359A, 476

Migration Regulations 1994 (Cth), sch.2, cls.820.211, 820.221, sch.3, 3001

Cases cited:

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32;

(2016) 241 FCR 121

Hossain v Minister for Immigration and Border Protection

[2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1

Shrestha v Minister for Immigration and Border Protection

[2018] HCA 35; (2018) 264 CLR 151; (2018) 92 ALJR 798;

(2018) 359 ALR 22

Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16;

(2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367;

(2010) 115 ALD 248

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48;

(2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122;

(2010) 119 ALD 446

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;

(2007) 81 ALJR 1190; (2007) ALR 609; (2007) 96 ALD 1

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31;

(2009) 238 CLR 489; (2009) 83 ALJR 1029

Applicant:

AKASHDIP SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3694 of 2016

Judgment of:

Judge Nicholls

Hearing date:

24 October 2019

Date of Last Submission:

24 October 2019

Delivered at:

Sydney

Delivered on:

14 November 2019

REPRESENTATION

Applicant:

In person

Representative for the Respondents:

Ms A. Wong

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 19 December 2016, and as amended on 10 October 2019, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3694 of 2016

AKASHDIP SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 19 December 2016, and amended on 10 October 2019, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 24 November 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) which refused to grant the applicant a partner visa.
The evidence before the Court is contained in a bundle of relevant documents (the Court book –“CB”–“RE1”).

Background

The Minister’s written submissions provide relevant background to this matter. Based on the evidence before the Court this is a fair summary:
“2. The applicant is a male citizen of India who first arrived in Australia on 17 April 2009 as the holder of a Student visa which ceased on 19 November 2011 (CB 103). The applicant was granted a further Student visa on 19 November 2011 which was cancelled on 2 May 2012 (CB 100) This was the last substantive visa held by the applicant.
3. The applicant made a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 3 September 2013 on the basis of his relationship with an Australian citizen (CB 13-30). The applicant was sponsored by his wife, Rosemary Murphy (the sponsor) (CB 3-13). The applicant provided documents in support of his visa application, including identity documents, photographs, his marriage certificate and statutory declarations of supporting witnesses (CB 50-76). The applicant appointed a registered migration agent as his authorised recipient (CB 47-49).
4. On 25 June 2014, the Department invited the applicant to provide further information in relation to his application. Specifically, he was invited to provide information as to whether he satisfied the Schedule 3 criteria 3001, 3003 and 3004 (CB 83-86).
5. On 23 July 2014, the applicant provided Confirmation of Enrolments (COEs) (CB 89-82), a letter from “Dr Satish Chander” stating the applicant’s mother was admitted to hospital on 5 May 2012 for chest pain (CB 93) and a statement addressing the Schedule 3 criteria (CB 94). The applicant stated that his mother was in hospital from 5 May 2012 to 24 July 2012 and he was “very stressed and disturbed” during this “entire ordeal”. The applicant claimed to be providing all care and support to the sponsor and her daughter (aged six years old) and had been in a “long standing relationship” since January 2013.”
The criteria relevant to the grant of the visa are set out at clause 820 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”). For current purposes the following is relevant in relation to the application for, and the grant of, the visa (see clause 820.211 and clause 820.221 of Schedule 2 of the Regulations):
1. The applicant was required to satisfy the decision maker that he was the spouse or de facto partner of, relevantly, an Australian citizen.
2. The applicant must have been sponsored for the visa by that person.
3. The applicant was required to satisfy, amongst other things, criterion 3001 in Schedule 3 to the Regulations, unless the decision maker was satisfied that there were compelling reasons for not applying that criterion (and the other relevant criteria at Schedule 3).
Clause 820.211 and clause 820.221 were at the relevant time in the following terms:
Clause 820.211(2)
“(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”

Clause 820.221:
“(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.”

Item 3001 to Schedule 3 to the Regulations was at the relevant time in the following terms:
“(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.”
The applicant in the current case was required to make the application for the visa within 28 days of the last day on which he held a substantive visa (see items 3001(1) and 3001(2)(c)(iii)).
On 17 April 2015 the Minister’s delegate refused the application (CB 100–CB 123). The delegate found that the applicant did not meet clause 820.211 and clause 820.221, and in any event did not make the application for the visa within the required 28 day period.
The delegate also found that there were not “compelling reasons” to justify the waving of the Schedule 3 criterion. In that circumstance the applicant did not meet clause 820.211(2)(d)(ii).

The Tribunal

The applicant applied for review to the Tribunal on 7 May 2015 (CB 124 –CB 125). He was invited to attend a hearing before the Tribunal, which he ultimately attended and gave evidence. He also provided further documentary evidence in support of his application.
The Tribunal (as previously constituted), affirmed the delegate’s decision on 18 December 2015. On 14 April 2016 orders were made, by consent, in this Court quashing the Tribunal’s decision, and remitting the matter to the Tribunal for reconsideration. The legal error identified was of the type explained in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32).
The applicant provided further documents to the Tribunal on 26 May 2016, 27 May 2016 and 4 November 2016. He and the sponsor attended a hearing before the Tribunal (as constituted for current purposes) on 7 November 2016 (CB 256–CB 258).
On 14 November 2016 the applicant requested, and was granted (on 15 November 2016), further time to make further submissions to the Tribunal. Nothing further was received by the Tribunal from the applicant (CB 261–CB 263). The Tribunal affirmed the delegate’s decision on 24 November 2016 (CB 267–CB 279).
The Minister’s written submissions provide a fair summary of the Tribunal’s relevant findings and reasoning:
“20. The Tribunal found that the parties were validly married to each other for the purposes of s 5F(2)(a) of the Act (CB 269, [10]). The Tribunal noted the timing of the relationship, namely that the applicant met the sponsor and commenced a committed relationship soon after his Student visa was cancelled in May 2012 (CB 269, [13]). The Tribunal identified inconsistencies and vagaries in the parties’ evidence and formed the view that aspects of the applicant’s evidence were not credible and expressed concerns about the apparent lack of trust between the parties (CB 270, [15]-[17]).
21. On consideration of the evidence before it, the Tribunal was not satisfied as to the financial aspects of the relationship for the purposes of reg 1.15A(3)(a) (CB 271, [21]). The Tribunal had regard to evidence as to the nature of the household and found that even if the parties lived together, it was not satisfied that they had established a joint household (CB 271, [23]) or that they shared joint responsibility for the sponsor’s child (CB 271, [27]). The Tribunal considered that the social recognition of the parties’ relationship was limited (CB 271, [28]).
22. In terms of the nature of the parties’ commitment to one another, the Tribunal found that the parties did not provide companionship and emotional support to one another and did not view the relationship as a long term one. It considered that the applicant had little knowledge or interest in the sponsor’s health and found that the parties were indifferent about one another’s affairs (CB 274, [37]-[38]).
23. The Tribunal found the applicant entered into the relationship to assist the applicant to obtain a visa. It was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of others or that the relationship was genuine and continuing (CB 274, [39]-[40]). The Tribunal found that the applicant did not meet the criteria in cll 820.211 and 820.221 (CB 274, [40]).
24. The Tribunal was cognisant of the fact that each of the specific matters contained in reg 1.15A(3) were effectively questions which must be answered. The Tribunal’s reasons use the language of reg 1.15A(3) and its reasons (CB 270-274, [18]-[40]) demonstrate that it made findings in relation to each of the roman numeral sub-paragraphs of reg 1.15A(3).¹
Whether the applicant met the Schedule 3 criteria
25. Having found the applicant was not the spouse of the sponsor, the Tribunal found it was not necessary to consider whether the applicant met the requirements of Schedule 3. However, the Tribunal (CB 275, [46]) nevertheless considered whether there were compelling reasons to waive the Schedule 3 criteria for the purposes of cl 820.211(2)(d)(ii).
26. The Tribunal found that the applicant did not hold a substantive visa at the time of the application and that the last day the applicant held a substantive visa was more than 28 days before his Partner visa application was lodged (CB 275, [45]). The Tribunal assessed whether there were compelling reasons to waive the Schedule 3 criteria.
27. The Tribunal considered the applicant’s: claims about his mother’s hospitalisation (CB 275, [49]), study history and his previous Medical Treatment visa application (CB 276, [50]), claims that he was not aware of the cancellation of his Student visa (CB 276, [51]) and that the applicant has been living in Australia since 2009 (CB 276, [52]), but was not satisfied that any of these factors constituted “compelling reasons”. The Tribunal found that even if it were to accept that the applicant had a genuine and committed spousal relationship with the sponsor (a claim that it did not accept), the existence of a genuine relationship, including a long-standing relationship, was not in itself a “compelling reason” to justify the waiver (CB 276, [53]).
It further found that even if the Tribunal were to accept the claims about the closeness of the applicant’s relationship with the sponsor’s child (which it did not accept), an ordinary relationship between a parent and step-child was not assessed as a “compelling reason” (CB 277, [55]-[56]). It rejected claims about the child’s propensity to develop a medical problem in the future constituted a “compelling reason” (CB 277, [57]).
28. Although the Tribunal accepted that the sponsor had been undergoing medical treatment, it considered that the applicant had no involvement with the sponsor’s health or in managing her medical condition and was not satisfied that the sponsor’s medical condition gave rise to compelling circumstances for the waiver (CB 278, [63]). The Tribunal found that the applicant’s circumstances did not justify waiving the Schedule 3 criteria, and therefore that the applicant did not meet cl 820.221(2)(d)(ii) (CB 278, [64]).”
[Footnote Omitted.]
[Errors in the Original.]

Before the Court

The applicant applied for review to this Court. It must be said that it was difficult to discern some reasonably identifiable legal error in the grounds, which were in the form of a narrative of complaints about the Tribunal’s findings.
References to a “gross violation of the guidelines set out by the Attorney General for Commonwealth employees”, and “I have not been afforded any presumption of innocence”, did not assist the applicant in revealing jurisdictional error in the Tribunal’s decision.
At directions on 19 September 2019, the Court made various orders that the applicant file an amended application and written submissions. An amended application was filed. The applicant has not filed any written submissions. Nor did he take the opportunity provided earlier by orders made by the Registrar, to file any evidence by way of affidavit.
The grounds of the amended application are in the following terms:
“1. The Administrative Appeals Tribunal acted in an unreasonable manner in assessing the Applicant's evidence about the relationship.
PARTICULARS
a) The decision record of the Tribunal at paragraph 13 states “The timing of this relationship is of considerable concern to the Tribunal…The Tribunal’s view, the applicant’s decision to seek a relationship at that time, and the haste with which the relationship developed, suggests that he is relying on his relationship as a means to enable him to remain in Australia.
b) The decision record of the Tribunal at paragraph 24 states “The applicant claims to have a close relationship with the sponsor’s daughter. He claims that he is the father figure to the child and the child had not known any other father. The Tribunal does not accept the applicant’s evidence”. Whereas, the Tribunal’s previous decision record dated 18 December 2015 states at paragraph 25 “The Tribunal notes that fact that the applicant and the sponsor’s youngest daughter have bonded well…”.
2. The Administrative Appeals Tribunal acted in an unreasonable manned when it rejected the Applicant’s evidence about the relationship.
PARTICULARS
The decision record of the Tribunal at paragraph 11 states “The Tribunal acknowledges that documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine…..As such, the Tribunal does not consider the documentary evidence to dispositive of the issues at hand”.
3. The Administrative Appeals Tribunal failed to give proper regard to section 359A or section 359AA of the Act.
PARTICULARS
a) The Tribunal failed to give clear particulars of the adverse information, that would be the reason or part of the reason, for affirming the decision under review.
(i) The Tribunal decision record at paragraph 13 states “The timing of this relationship is of considerable concern to the Tribunal”.
(ii) The Tribunal decision record at paragraph 15 notes the inconsistences in the oral evidence given.
b) The Tribunal failed to advise the Applicant that he could seek additional time to comment on or respond to the information given by the Tribunal to the Applicant during the course of the hearing conducted on 7 November 2016.
c) The Tribunal failed to ensure that the Applicant understood the importance of that information and the consequences of it being relied up on in affirming the decision under review.”
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Punjabi language.
Given the opportunity to address the Court the applicant said he had nothing to say. I understood from the applicant that he sought to solely rely on the grounds of the amended application, which he said had been drafted for him by a “lawyer”. Nor did the applicant, despite opportunity, make any submissions following submissions from the Minister’s lawyer.

Consideration

The Minister concedes that the Tribunal erred at [53], which is in the following terms:
“53. The applicant claims he is married to an Australian citizen who is a single parent and that he provides care and support to the child. The applicant refers to having a long standing relationship with the sponsor and the step-daughter with whom he is close. He claims that if he leaves the country, the child will be very upset as she believes him to be the father. The applicant repeated the same claims in his evidence to the Tribunal, also referring to the earlier Departmental policy concerning long term relationships. In his submissions to the Tribunal of 16 May 2016 the applicant refers to having a long term relationship with the sponsor and claims it is a compelling reason for the waiver. The Tribunal does not accept these claims. For the reasons stated above, the Tribunal has formed the view that the applicant does not have a genuine and committed spousal relationship with the sponsor. However, even if the Tribunal were to find that the applicant is the spouse of the sponsor and that their relationship is a long standing one, the Tribunal does not consider that a genuine relationship constitutes a compelling reason for the waiver, including a long-standing relationship. In the Tribunal’s view, the existence of such a relationship is the basis on which the Partner visa application is made but no more. The Tribunal acknowledges that the earlier Departmental policy, on which the applicant relies, referred to long term relationships as being compelling. The Tribunal is of the view that such policy is more restrictive than, and not consistent with the legislation. Essentially, the Tribunal finds that a genuine relationship of any length, even if one was established here, does not constitute compelling reasons for the waiver.”
[Emphasis Added.]
As set out above the Tribunal found that the applicant did not meet clause 820.211(2)(a) and clause 820.221 of Schedule 2 to the Regulations. In short, the Tribunal was not satisfied that the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others, or that their relationship was genuine and ongoing. That is, it was not satisfied that the applicant and the sponsor were in a genuine and continuing relationship as is otherwise required by the Regulations, before the visa could be granted.
Having regard to the relevant statutory definition the effect of this finding was that the applicant and the sponsor were not in a spousal relationship for the purposes of the Act. As is set out at clause 820.211(2)(a) and clause 820.221 of Schedule 2 to the Regulations, to be granted the visa, amongst other things, the applicant must be in such a relationship. He was found not to meet this requirement.
It is not clear why after having made this critical and dispositive finding, the Tribunal then proceeded to consider the question of whether compelling circumstances existed in the context of the Schedule 3 criteria. The Tribunal itself recognised in this circumstance, that “…it is not necessary to consider whether the applicant meets the requirements of Schedule 3” ([41] at CB 275).
It may be that the Tribunal was concerned to address the fact that the applicant had not made his application for the spouse visa within 28 days of the cessation of the last substantive visa that he held.
Clause 820.211(2)(d)(ii) requires that the applicant, amongst other things satisfies that requirement. If that Tribunal was to rely on this as a basis for affirming the delegate’s decision, it was required to consider whether compelling circumstances existed for not satisfying this, and other, Schedule 3 criteria.
Having made the finding that the applicant did not satisfy the relevant requirement that he was in a spousal relationship with the sponsor there was no need for the Tribunal to consider the matter of the Schedule 3 criteria. Or whether compelling circumstances existed so as to not apply these criteria. Nevertheless it did so. It is in that subsequent consideration that the error conceded by the Minister occurred ([53] at CB 276).
The terms of [53] are set out above. Having regard to those parts of [53] emphasised above, the Minister’s explanation of the error is that the Tribunal’s finding was not supported by the text of clause 802.211(2)(d)(ii). I understood the Minister’s explanation for the error to be that the Tribunal erred in applying the relevant statutory test to the matter of the longevity of the relationship. That is, that the language used by the Tribunal purported to establish a test for the consideration of the matter set out at clause 802.211(2)(d)(ii) that does not arise from the terms set out there.
It is unclear, given the regulatory context, what the Tribunal was seeking to reason in the second part of [53] (at CB 276).
The confusion, or juxtaposition, of the concepts of a genuine relationship, with the refusal to consider the relevance of a relationship of “any length”, creates, even at best for the Tribunal, an ambiguous line of reasoning. I agree with the Minister that the language used by the Tribunal was one of a statement of general principle purportedly applicable to all cases, rather than a finding about the particular circumstances of this case (as to the longevity of the relationship), and how this could be relevant to the disposition of the question posed in clause 802.211(2)(d)(ii).
However, I also agree with the Minister that this error does not, in the circumstances, amount to jurisdictional error. As set out above, the Tribunal affirmed the delegate’s decision on the basis that the applicant was not, in the context of the statutory and regulatory requirements, in a spousal relationship with the sponsor. The applicant, as the Tribunal otherwise recognised, could not be granted the visa given this finding.
This conclusion and the findings that informed it, were not affected by any legal error ([11]–[40] at CB 269–CB 274) (see also consideration of the grounds of the amended application below). This finding stands as an independent and separate basis on which the delegate’s decision was affirmed. (See in particular Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [67], Shrestha v Minister for Immigration and Border Protection [2018] HCA 35 at [10] and Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [7]–[14]).
In short, the error at [53] is not material to the decision in circumstances where the applicant could not have been granted the visa given that he did not meet the essential requirement that he be the “spouse” of the sponsor.
Ground one of the amended application asserts unreasonableness in the Tribunal’s decision. It would appear that the applicant seeks to argue unreasonableness not on the basis of the outcome of the decision, but on two claimed identifiable errors.
Particular (a) takes issue with the Tribunal’s expression of concern (at [13] at CB 269) that the “timing” of when the applicant said he met the sponsor, and commenced a relationship with her, coincided with the cancellation of his student visa.
There is nothing now from the applicant to even indicate why the Tribunal’s finding, or the reasoning leading to the finding, was unreasonable in the requisite sense. This is not a case where the Tribunal’s finding was not supported by any evidence, or was illogical or irrational. What remains is that the applicant seeks to challenge the merits of the finding. This Court cannot conduct a review of the merits of the Tribunal’s findings.
Particular (b) directs attention to [24] of the Tribunal’s decision record (at CB 272). The contention is that at that paragraph the Tribunal found that it did not accept the applicant’s evidence that he had a close relationship with the sponsor’s daughter and was a “father figure” to her.
The claim of unreasonableness appears to be that the Tribunal made this finding, even though the earlier constituted Tribunal accepted this claim.
It is trite to say that the Tribunal was not bound by the findings of the earlier constituted Tribunal. This Court made orders quashing that decision. In that light the Tribunal (as currently constituted) was required to consider the matter afresh.
The Tribunal’s findings in this regard were all reasonably open to it on what was before it, and for the reasons it gave. The Tribunal’s finding was probative of the applicant’s own evidence given to it. This included that notwithstanding his claim that he was close to the child, he did not know many of the subjects she studied at school, and what extra curricular activities she engaged in. In answer to the Tribunal’s question as to her close friends he could only name one child. A child which the sponsor herself did not name as a close friend of her daughter when the same question was put to her.
The earlier constituted Tribunal may have been otherwise persuaded by the evidence before it, but legal unreasonableness is not revealed in circumstances where, simply minds may differ (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16). Ground one is not made out.
Ground two also asserts legal unreasonableness. It directs attention to [11] of the Tribunal’s decision (at CB 269). The contention is that the Tribunal acknowledged that documentary evidence had been presented to it which sought to address the various aspects of the relationship between the applicant and the visa sponsor.
What was said to be unreasonable was the Tribunal’s view that such documents could be obtained even if the relationship was not genuine.
These documents were, variously, household accounts, utility accounts, bank statements and the like. The Tribunal’s reasoning (at [11]) was that, as it explained, the fact that accounts were sent to the “same” address does not necessarily mean that the applicant and sponsor “genuinely share their financial resources”. This was one of the elements in the consideration of whether the applicant and the sponsor had “established a joint household.”
It is of note that the Tribunal did not “reject” this evidence in the sense of finding the documents to be fraudulent or even contrived. Rather, the Tribunal afforded them little weight when it found that in the circumstances they were not “dispositive of the issues at hand” ([11] at CB 269).
As the Minister submits the matter of weight to be afforded to such evidence is for the Tribunal to determine subject to it providing a reasonable explanation as to why it evaluated the evidence in that way (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [33]). Ground two is not made out.
Ground three asserts a breach of s.359A and s.359AA of the Act. The particulars identify the subjects of the claimed breach as being the Tribunal’s failure to put to the applicant its concerns about the timing of the relationship between the applicant and the sponsor (see [13] at CB 269), and its concerns about the applicant’s inconsistent evidence (see [15] at CB 270).
It is the case that s.359A(1) of the Act obliges the Tribunal to give to an applicant information which it considers to be the reason or a part of the reason for affirming the delegate’s decision.
What constitutes “information” for the purposes of s.359A(1) of the Act was the subject of explanation by the High Court in SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 at [21]-[25].
Both the matters said to be the subject of the Tribunal’s failure to comply are not information for the purposes of s.359A(1). The Tribunal’s subjective view of the timing of the relationship, and its perception of inconsistencies in the applicant’s evidence is not information (see in particular SZBYR at [17]–[18]).
Section 359AA of the Act is a mechanism by which the Tribunal may discharge any obligation pursuant to s.359A(1) of the Act orally at a hearing. As s.359A(1) of the Act was not enlivened then s.359AA of the Act did not apply to this case. In all ground three is not made out.

Conclusion

There is no jurisdictional error in the Tribunal’s decision arising from the grounds of the amended application or otherwise. It is appropriate to dismiss the application to the Court. I will make the appropriate order.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 14 November 2019