SZQCN v Minister for Immigration
[2019] FCCA 2911
•15 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQCN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2911 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – partner visa – where Applicant told the Tribunal he was no longer in a relationship with his sponsor– whether Tribunal failed to consider whether there were compelling reasons at the time of decision not to apply the criteria in Schedule 3 of the Migration Regulations 1994 (Cth) – where error by the Tribunal not material – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 360 Migration Regulations 1994 (Cth), cls.820.211, 820.221 in Sch 2 |
| Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 |
| Applicant: | SZQCN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 815 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 5 May 2017 25 September 2017 4 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 815 of 2015
| SZQCN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) dated 3 March 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa.
The Applicant, a citizen of Nepal, arrived in Australia on 2 March 2010 as the holder of an Entertainment (Subclass 420) visa which ceased on 20 March 2010. He applied for a protection visa on 19 March 2010. That application was refused and the decision was affirmed by the then Refugee Review Tribunal in March 2011. It appears that he unsuccessfully sought judicial review and was allocated the pseudonym SZQCN. He subsequently unsuccessfully sought ministerial intervention.
The Applicant applied for the partner visa in issue in these proceedings on 12 June 2012. He claimed to be in a de facto relationship with an Australian citizen (the sponsor). The application was refused on 9 September 2013.
The Applicant applied to the then Migration Review Tribunal. He attended a Tribunal hearing on 3 March 2015. The Tribunal affirmed the decision under review. The Applicant sought review of the Tribunal decision in this court. The application was summarily dismissed in April 2015. The Applicant sought leave to appeal to the Federal Court. Leave was granted and the appeal was allowed by consent. The matter was remitted to this court and was then placed in my docket.
I made orders giving the Applicant the opportunity to file and serve further affidavit evidence including any transcript of the Tribunal hearing and any amended application and listed the matter for hearing on 9 February 2017. The Applicant did not file any further evidence or amended application and failed to attend the scheduled hearing. I dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). However on 21 March 2017 the Applicant successfully sought reinstatement of his application. He was given a further opportunity to file and serve affidavit evidence and the matter was allocated another hearing date. The Applicant filed and relied on an affidavit of Toufic Laba Sarkis affirmed on 7 April 2017 attaching a transcript of the Tribunal hearing conducted on 3 March 2015.
When the matter next came before me for hearing, the solicitor for the First Respondent raised in oral submissions an argument of the nature that was subsequently considered by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1. Given the manner in which this issue was raised and the state of authorities at that time, the hearing was adjourned so that written submissions could be filed. After the decision of the High Court in Hossain, the parties were given the opportunity to file further written submissions and to make further oral submissions. The Applicant did not file any written submissions, but was given the opportunity on each occasion the matter was before the court to raise any concerns he had in relation to the Tribunal decision and procedures and also to respond to the Minister’s oral and written submissions.
The Tribunal decision
In its reasons for decision of 3 March 2015 the Tribunal summarised the background to the proceedings, including the fact that the Applicant’s Entertainment (Subclass 420) visa had ceased on 20 March 2010.
The Tribunal recorded that the Applicant claimed that he had first met his sponsor in 2011 at a friend’s house and that they commenced their relationship about 7 months later. He claimed that they decided to commit to a long term relationship in February or April 2012 and that they intended to marry in October 2012.
The Tribunal had regard to documents provided to the Department in support of the application, including a statutory declaration by the Applicant of June 2012 in which he stated that he met his sponsor in June 2011, that he was in regular contact with her, that he spent weekends with her and her daughter, and that he had moved in with his sponsor after they became engaged. He also claimed that he helped the sponsor to look after her daughter when she was sick.
The Tribunal also referred to a statutory declaration made by the Applicant’s sponsor in June 2012, in which she stated that she was in a relationship with the Applicant, that they became engaged in May 2012 and that they intended to marry. She attached medical evidence and claimed that the Applicant helped her to look after her daughter and provided her with financial assistance.
The Tribunal observed that two persons had completed statutory declarations in June 2012 in which they each stated that they were friends of the sponsor and believed the relationship was genuine and continuing, and referred to photographs of the Applicant and the sponsor said to have been taken at their engagement party.
The Tribunal also outlined aspects of the evidence that had raised concerns for the delegate in relation to whether the Applicant was living with or in a de facto relationship with the sponsor.
In any event, the Tribunal recorded that at the Tribunal hearing on 3 March 2015 the Applicant had told it that his relationship with the sponsor had “ended about 8 - 9 months ago” due to arguments about money. It recorded that he claimed that he used to give his sponsor all his money and paid her rent, her daughter’s tuition costs and living expenses, and that he had no money for himself. He claimed that his sponsor liked going to hotels and that he would take her there and pick her up and she would spend his earnings drinking and that it was never enough money for her. He claimed that when he ran out of money his sponsor became upset and angry with him and started threatening him with ending her sponsorship. He claimed that his sponsor did not work, that he could not afford to continue paying for everything and that before they started their relationship she had said she would share expenses, but that she did not.
The Applicant confirmed to the Tribunal that his sponsor had not died, that they had no Australian-born children together, that she had not committed family violence against him and that the reason the relationship ended was because of issues related to money.
The Tribunal recorded that the Applicant also told it that there were no compelling circumstances at the time of the visa application, except that “they were in love”.
In considering the claims and evidence, the Tribunal stated that the issue was whether the Applicant was in a genuine de facto relationship with his sponsor at the time of visa application and continued to be in a genuine de facto relationship and, if so, whether there were compelling reasons to not apply the Schedule 3 criterion that the Applicant was the holder of a substantive visa at the time of visa application.
The Tribunal had regard to the Applicant’s evidence to it that he was no longer in a de facto relationship with his sponsor, that he had not been in a relationship for the last eight or nine months and that the relationship had ended due to arguments about money.
Based on this evidence, the Tribunal found that the Applicant and the sponsor did not have a mutual commitment to a shared life to the exclusion of others, that they lived separately and apart on a permanent basis and that they did not have a genuine and continuing relationship. The Tribunal therefore found that the Applicant did not meet the requirements of s.5CB(2)(a)-(c) of the Migration Act 1958 (Cth) (the Act) at the time of decision. Accordingly, the Tribunal found that the Applicant did not meet the time of decision criterion for a Subclass 820 visa in cl.820.221 in Schedule 2 to the Regulations.
Nonetheless, the Tribunal also considered whether the Applicant met Schedule 3 criteria as required in cl.820.211 in Schedule 2 to the Regulations. The Tribunal observed that an applicant who was not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations (in particular in cls.3001, 3003, and 3004) unless the Minister “is satisfied that there are compelling reasons for not applying those criteria” (see cl.820.211(2)(d) in Schedule 2 to the Regulations).
As the visa application was not made within 28 days of the date on which the Applicant’s last substantive visa ceased (20 March 2010), the Tribunal found that he did not satisfy criterion 3001.
The Tribunal stated that as it had found that the Applicant did not meet a relevant Schedule 3 criterion, it was necessary to consider whether there were compelling reasons for not applying that criterion. It observed that the expression “compelling reasons” was not defined for these purposes, but that the reasons must be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criterion and that the circumstances must be sufficiently powerful to lead the decision-maker to make a positive finding in favour of waiving the required criterion.
In paragraph 28 of its reasons the Tribunal recorded that the Applicant had told it that there were no compelling reasons “at the time that he lodged his application” for not applying the Schedule 3 criterion, other than that he and the sponsor were in love. It was not satisfied that “being in love” was “sufficiently compelling for not applying the Schedule 3 criteria” and accordingly concluded that the Applicant did not meet cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations.
In the absence of any evidence to the contrary, the Tribunal also found that the Applicant did not meet any of the alternative criteria in cl.820.211(3)-(9).
For the reasons given, the Tribunal found that the Applicant did not satisfy the criteria for the grant of the visa sought. It affirmed the decision not to grant him a Partner (Temporary) (Class UK) visa.
The ground of review
As indicated, the Applicant sought review of the Tribunal decision in this court. The procedural history is summarised above. The Applicant has continued to rely on his original review application filed in March 2015. It contains one ground of review, which is as follows:
I ask the Court to accept my review as I am entitled to have the visa because my partner and I lived together and I was committed to her. The Tribunal said on my behalf that there were no compelling reasons at the time that I lodged my application. The Tribunal misunderstood what I said as I did not say that and I look forward to receive the CD hearing to put transcript to the Court.
In oral submissions, when asked what he meant by the assertion that the Tribunal “misunderstood” what he said at the Tribunal hearing, the Applicant claimed that when he was asked about family violence at the Tribunal hearing he did not understand and did not know that it included mental torture. He expressed concern about the fact that his sponsor had asked him for money all the time and had threatened him with ending her sponsorship. He claimed that he did not know at the time that her behaviour may have amounted to family violence.
Insofar as the Applicant now seeks to contend that he was exposed to family violence, he seeks impermissible merits review. There is no suggestion that he made such a claim to the Department or the Tribunal or sought to put any evidence before the Department or the Tribunal in support of any claim of family violence at any time (let alone evidence in accordance with Division 1.5 of the Regulations).
Rather, when asked why the relationship had ended, the Applicant told the Tribunal (transcript page 3):
… basically it was money address (sic) because I was working at that time and every time I found money I had to give all my money to her. And since I gave her all my money I was left with none and she used to pay her daughter’s tuition fee with that money and other things. And later on when I could not afford to give her any more she started creating problems.
After the Tribunal member asked the Applicant to pause so that the interpreter could translate, and then invited him to continue, the Applicant continued (transcript pages 3 to 4):
And after I also had to pay her house rent and on the weekend she prefer to go to the pubs. I used to take her to the pubs, leave her there and pick her again. And like I said before I was working at that time whatever I had earning I used to give everything to her. Then although I was paying her it was never enough to her and she later on when she could not get more money she started threatening me saying I will report you to the immigration, I will end that relationship. Sorry … and she did not work because me alone working as I did not work. Before our marriage she had told me both of us would be working and sharing our expenses but later on she changed and my sole my alone earning was not enough to spend on our living.
The Tribunal then confirmed its understanding of the Applicant’s evidence that “basically your relationship ended because of these arguments about money, is that correct?”. The Applicant replied “that’s correct” (transcript page 4).
At that point that the Tribunal repeated its introductory remark that if the relationship had ended the requirements for the visa were not met, but also informed the Applicant that there were certain exceptions, for example if the sponsor had died or they had a child together. The Tribunal asked if he had had a child with the sponsor to which he replied no. Importantly, the Tribunal then also advised “and if there’s what’s called relevant family violence committed by your sponsor against you” to which the Applicant replied “She hasn’t done anything like that” (transcript page 4).
Moreover the Tribunal went on to ask “Can I ask why you came here today then? I mean what are the grounds of your appeal?”, to which the Applicant replied “I just came here because I was called for this hearing and I came to see what would happen” (transcript page 4).
At the end of the hearing the Tribunal again returned to the fact that “Unfortunately Mr … the only circumstances that the tribunal can consider if your relationship has ended are if your spouse has died, you have child or there was family violence. And you’ve told me none of those things have happened and I have no discretion to consider anything else”. The Applicant’s response to this information was simply “Thank you” (transcript pages 5 to 6).
What was significant and ultimately dispositive for the Tribunal was the fact that the Applicant was not in a relationship with the sponsor at the time of decision. The Applicant was afforded an opportunity to give evidence in that regard and was also told about and given the opportunity to raise any of the exceptions to the requirement that he continued to be in a relationship as provided for in the alternative criteria, in cl.820.221(2)-(3) including where there had been family violence. When the possibility of family violence was raised with him, the Applicant’s response went beyond a simple “no”, to include the statement that his sponsor had not done “anything like that”.
As the First Respondent submitted, having regard to the material before the Tribunal and the transcript of the Tribunal hearing, this is not a case in which it can be said that a claim of family violence was raised clearly or squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
I am not satisfied that the Tribunal misunderstood or failed to consider an integer of the Applicant’s claims in this respect.
The ground of review also appears to raise an issue as to whether the Tribunal erred in having regard only to circumstances at the time of application in considering whether there were compelling reasons not to apply Schedule 3 criteria.
In initial written submissions the First Respondent submitted that the Applicant’s response about being in love at the time of application was plainly considered by the Tribunal, but that the circumstances advanced were found not to be compelling. It was contended that the transcript of the Tribunal hearing did not reveal any further submissions advanced by the Applicant that it could be said were not considered by the Tribunal. The First Respondent submitted that the Tribunal had not erred in the manner considered by the Full Court of the Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 in failing to consider compelling reasons at the time of decision, as there were no time of application or decision circumstances advanced by the Applicant that the Tribunal had excluded from its consideration. In any event, it was contended that this issue was immaterial to the Tribunal’s decision (and was not an issue that was ultimately dispositive) because it was entirely unnecessary for the Tribunal to consider the Schedule 3 criteria given that the Applicant was no longer in a de facto relationship at the time of the Tribunal’s decision.
It was submitted that should the court take the view that the Tribunal had erred in its consideration of compelling reasons, relief should be refused given the separate and independent basis on which the Tribunal relied to refuse the visa, being that the Applicant was not in a de facto relationship at the time of the decision. The First Respondent submitted that the Tribunal’s findings in respect of that matter (in particular in relation to the criterion in cl.820.221(1)) were plainly unaffected by jurisdictional error. The absence of a relationship at the time of decision was said to be an alternative basis which compelled the Tribunal to refuse the visa.
Following the decision of the High Court in Hossain, the First Respondent submitted that any error of the nature considered in Waensila was not a jurisdictional error as it was not material to the outcome of the Tribunal review.
As set out above, in its reasons for decision the Tribunal addressed both whether the Applicant and the sponsor were in a de facto relationship at the time of decision (as required by cl.820.221) and also whether the Applicant met the applicable Schedule 3 criteria or if there were compelling reasons for not applying the Schedule 3 criteria (as required by cl.820.211).
It is apparent from the transcript of the Tribunal hearing that the Tribunal raised with the Applicant a number of preliminary issues, including the fact the sponsor had not attended the hearing. The Tribunal indicated that it would usually expect to talk to an applicant’s partner in relation to an application for a partner visa. It asked if there was any reason she was not there that day, to which the Applicant replied that “she did not come”. The Tribunal asked whether he understood how important it was that in a partner application the partner attend the hearing, to which the Applicant said “I didn’t have any information about that” and the member pointed out that the hearing invitation stated that the Tribunal wished to speak to the partner as well (transcript page 2).
When asked if he was still in a relationship with his partner, the Applicant then stated “there’s no relationship” (transcript page 2). The Tribunal explained that it was necessary to apply the relevant law to the facts and that the law said that if he was not in a relationship with his sponsor then he would not meet the criteria for a visa. It also explained that the other part of the law that the Tribunal had to look at in respect of the application was the fact that the Applicant needed to be the holder of a substantive visa at the time he lodged his application or that it must be satisfied that there were compelling circumstances that existed at the time the Applicant lodged the application to waive that requirement. The Tribunal indicated that they would discuss when and why the relationship ended and then talk briefly about whether there were compelling reasons that existed at the time of the application.
However, after discussing the circumstances in which the relationship ended, the Tribunal stated (transcript page 4):
OK, alright, I actually don’t think there’s any need to talk about the compelling reasons that may have existed at the time you lodged the application and that’s because you are no longer in the relationship. But if you wanted to tell me about anything that was different or extraordinary or unique in your circumstances at the time you lodged the application that meant you couldn’t go back to the Philippines and lodge it from there. Nepal, sorry.
The Applicant replied: “Basically because I fell in love with her. We got married and we applied for this visa together but later on the relationship didn’t last but I still love her and I can’t go back” (transcript page 5).
As indicated, the First Respondent acknowledged that the Tribunal used the words “at the time you lodged the application” in inviting the Applicant to make oral submissions in this respect, but submitted that on a fair reading of the transcript as a whole it was apparent that the Applicant was afforded the opportunity to advance submissions on any circumstances he wished to assert were compelling, be they at the time of application or decision. In support of this proposition, reliance was placed on the fact that towards the end of the hearing the Tribunal member told the Applicant: “Okay. Alright I don’t have any further questions for you. Is there anything else you wanted to tell me or ask me before I close the hearing?” (transcript page 5) to which the Applicant replied:
It’s just that I want this repeat again I spend all my earnings on her and I did everything possible from my side. I used to take her daughter to the hospital whenever needed and when I could not afford to pay her more this is what happened.
It was submitted that the Tribunal had provided the Applicant with a real and meaningful opportunity to participate in the review and that, although not required to do so, it had gone above and beyond its statutory obligations of procedural fairness to invite the Applicant’s submissions on “compelling reasons” and had considered the sum of the factors he raised in response.
I do not find persuasive the Minister’s submission that the Tribunal did not err in the manner considered in Waensila (which I note was decided after the Tribunal decision). The Tribunal member twice told the Applicant that what were in issue were compelling reasons that existed at the time of his visa application or anything that was different or extraordinary or unique in his circumstances at the time he lodged the application. Moreover, in its reasons for decision, in considering the Schedule 3 criteria the Tribunal clearly understood that what the Applicant had addressed was whether there were compelling circumstances for not applying those criteria at the time of the visa application (as he had been asked to do). It was those time of application circumstances to which the Tribunal referred in finding that it was not satisfied that “being in love” was a sufficiently compelling reason for waiving the Schedule 3 criteria. It was on this basis that the Tribunal then found that the Applicant did not meet the criterion in cl.820.211(2)(d)(ii).
The Tribunal misunderstood the law in excluding from its consideration of compelling reasons for the purposes of cl.820.211(2)(d)(ii) circumstances which arose after the time of the visa application. Waensila is authority for the proposition that the waiver power in cl.820.211(2)(d)(ii) does not confine the decision-maker to considering only compelling reasons which existed as at the date of application and requires the Tribunal to consider whether there are compelling reasons at the time of decision. The approach taken by the Tribunal not only reveals a misunderstanding of the applicable law, but also a failure to consider the post-application matters that were in fact raised by the Applicant at the hearing (that after the application the relationship did not last, but that he still loved his sponsor and that he could not go back to Nepal).
However, notwithstanding that I am satisfied that the Tribunal fell into error in the sense considered in Waensila, I accept that, as the First Respondent submitted, this case falls within the principles considered by the High Court in Hossain.
In Hossain the Tribunal had made an error of law in construing and applying cl.820.211(2)(d)(ii) in Schedule 2 to the Regulations by misdirecting itself as to the test to be applied. It assessed whether compelling reasons for not applying Schedule 3 criteria existed at the time of visa application instead of as at the time of the Tribunal decision. As in this case, what was in issue was whether an error of law in relation to one criterion amounted to a jurisdictional error in circumstances where another visa criterion was not met.
In the High Court, the plurality (Kiefel CJ, Gageler and Keane JJ) concluded that the Tribunal’s error in relation to compelling reasons did not rise to the level of a jurisdictional error because on the facts it found that the Tribunal had a duty to affirm the delegate’s decision (because another criterion was also not met). Their Honours made the point (at [27]) that:
… The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
Their Honours reasoned that ordinarily such legislation is to be interpreted as “incorporating a threshold of materiality” and that:
… the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.
I accept that, as the Minister ultimately submitted, properly construed and having regard to the applicable statutory context (including s.65 of the Act and the criteria in relation to a Subclass 820 visa in Schedule 2 as well as criterion 3001 in Schedule 3 to the Regulations), the Tribunal’s error in relation to compelling reasons was not a jurisdictional error because it was not material to the outcome of the review in the sense that it did not affect the Tribunal’s exercise of power (see Hossain at [30] - [31] and [35] and also see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] and Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]).
There was a separate and independent basis for the Tribunal’s decision to affirm the delegate’s decision. Another criterion was not met. In circumstances where the Applicant told the Tribunal that his relationship with the sponsor had ended, the Tribunal was not and could not be satisfied that the Applicant and the sponsor had a mutual commitment to a shared life to the exclusion of others at the time of decision. Hence it concluded that he did not meet the criterion in cl.820.221(1) in Schedule 2 to the Regulations. There was no evidence or claim to the Tribunal that the Applicant met any of the alternative criteria in cl.820.221(2)-(3) in Schedule 2 to the Regulations. The Tribunal’s reasoning in respect of the cl.820.221 criterion was unaffected by its error in relation to the criterion in cl.820.211 about compelling reasons for not applying Schedule 3 criteria. In these circumstances, having regard to the applicable statutory and regulatory context, the Tribunal was required to and had no option but to affirm the decision under review.
Indeed, as the First Respondent submitted, in circumstances where the Applicant frankly conceded at the Tribunal hearing that he was no longer in a de facto relationship with his sponsor as required under cl.820.221(1) and there was no evidence or claim to the Tribunal that he met any of the alternative time of decision criteria in cl.820.221(2) or (3) in Schedule 2 to the Regulations, the question of whether there were compelling reasons for the Tribunal not to apply the Schedule 3 criteria (such that the separate criterion in cl.820.211 was met) was not ultimately a dispositive issue. As the Tribunal had indicated at the hearing, it was not in fact necessary for it to consider whether compelling reasons existed, because the Applicant was no longer in a de facto relationship with the sponsor.
Moreover, if the question of whether there were compelling reasons (including up to the time of decision) for the Tribunal not to apply the Schedule 3 criteria within cl.820.211(2)(d) could be seen as amounting to a dispositive issue at the time of the hearing (in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152) and there was a technical failure by the Tribunal to comply with s.360 of the Act (because it put this issue to the Applicant in terms of compelling circumstances at the time of application), this would not rise to the level of a jurisdictional error. Any such error would not and could not have affected the fact that the Tribunal was required in the circumstances of the case to affirm the delegate’s decision because, on the Applicant’s own evidence to the Tribunal, he could not satisfy the separate requirement that he be in a de facto relationship with his sponsor at the time of decision or otherwise meet the cl.820.221 criterion. Any such error could not have affected the Tribunal’s exercise of power (and see Hossain at [72] per Edelman J).
Even if the Applicant was questioned in an impermissibly narrow way at the Tribunal hearing regarding the existence of compelling reasons, this could not have affected the Tribunal’s conclusion in relation to the absence of a genuine de facto relationship. As the plurality stated in Hossain at [30], the threshold of materiality “would not ordinarily be met … where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”” (as stated in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [56] quoting Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147). The Applicant was not deprived of the possibility of a successful outcome.
There is nothing in the material before the court to indicate that the Tribunal otherwise failed to comply with any of its statutory obligations under Division 5 of Part 5 of the Act.
Accordingly jurisdictional error has not been established and the application should be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 October 2019
1
13
3