Thirikwa v Minister for Immigration & Anor

[2016] FCCA 1501

FEDERAL CIRCUIT COURT OF AUSTRALIA

THIRIKWA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1501

Catchwords:
MIGRATION – Visa – Partner Visa – ‘Spouse’ – Duty to provide ‘clear particulars’ of adverse information – invitation to applicant to comment or respond – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5F, 69, 357A, 359A, 359AA, 379A and 476

Migration Regulations 1994 (Cth), cl.820.211(2)(a) of Part 820 of Sch.2 and r.1.15A(2) & (3)

Cases cited:

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

MZYFH v Minister for Immigration & Citizenship & Anor (2010) 115 ALD 409

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 225 CLR 88

SZNKO v Minister for Immigration and Citizenship & Anor (2010) 184 FCR 505
Sandhu v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 842

Applicant: LUCY WAITHERA THIRIKWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 183 of 2015

Judgment of: Judge Heffernan

Hearing date: 7 March 2016

Date of Last Submission: 8 March 2016

Delivered at: Adelaide

Delivered on: 21 June 2016

REPRESENTATION

Counsel for the Applicant: Mr S Ower

Solicitors for the Applicant: Work Visa Lawyers

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 24 April 2015 in matter 156475.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 2 May 2014. 

3. The name of the second respondent is amended to the ‘Administrative Appeals Tribunal’.

4. The first respondent do pay the costs of the applicant in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 183 of 2015

LUCY WAITHERA THIRIKWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made under s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 24 April 2015 which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa under s.69 of the Act.

2. The applicant raises a single ground in her application as follows:

   “1.The Migration Review Tribunal committed jurisdictional error by failing to comply with s.359A of the Migration Act 1958 (Cth).

   Particulars

   1.1The Tribunal considered that certain information on the Department’s file dated January 2012 (“the information”) would be the reason, or a part of the reason, for affirming the decision under review.

   1.2During the hearing on 26 March 2015, the Tribunal failed to invite the applicant to respond to (as distinct from comment on) the information.

   1.3During the hearing on 26 March 2015, the Tribunal failed to properly advise the applicant that she may have sought additional time to respond to the information, but otherwise gave the impression that the applicant was entitled to a brief adjournment of the hearing such that it was to resume that day.

   1.4The Tribunal therefore did not comply with s.359AA, and was therefore required to comply with s.359A, which it failed to do at all.”

Background

1. The applicant is a citizen of Kenya and 26 years of age.  On 17 June 2011, she married her sponsor, Mr Akoon Majak Pili, an Australian citizen who was born in South Sudan.[1]  The applicant made an application for a visa on 15 September 2011.  The sponsor wrote to the Department in December 2011 claiming that the parties had separated and that he sought to withdraw his sponsorship.[2]

   [1]     Court Book (‘CB’) p 275.

   [2]     CB p 275.

2. On receipt of this letter, the Department wrote to the applicant and informed her of her eligibility for a visa in certain circumstances and advising her that family violence was one of those circumstances.  The sponsor then wrote again to the Department on 18 December 2011, informing them that he had reconciled with the applicant.  On 6 February 2011, the sponsor advised the Department that the marriage issues had resolved and that he did not wish to withdraw his sponsorship.[3]

   [3]     CB p 118.

3. Central to this application for judicial review, is information received by the Department on 31 January 2012,[4] to the effect that the relationship between the parties was fabricated, that the marriage had been induced by the applicant paying money to the sponsor, and that the parties have never lived with each other.[5]

   [4]     See transcript p 31, line 26.

   [5]     CB p 276.

4. The Tribunal identified the issue for determination as being whether the applicant was the spouse of the sponsor as defined in s.5F of the Act.

Legislative framework

1. In order to be eligible for the visa, the applicant was required to satisfy the criteria set out in cl.820.211(2)(a) of Part 820 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. Clause 820.211(2)(a) states as follows:

   “(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;”

3. In order to determine whether the applicant satisfied the criteria set out above, it was necessary for the Tribunal to consider the definition of “spouse” under s.5F of the Act.

4. Section 5F is expressed in the following terms:

   “(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i)     live together; or

   (ii)     do not live separately and apart on a permanent basis.

   (3)…”

5. To determine this question, the Tribunal was required to consider all of the circumstances of the relationship.[6]

   [6] Rule 1.15A(2) & (3) of the Regulations.

6. Division 5, Part 5 of the Act sets out the requirements for the conduct of a review by the Tribunal. By virtue of s.357A, the requirements of Division 5 are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Tribunal hearings. Accordingly, strict compliance with the provisions in Division 5 is required. The Tribunal is required by s.359A to give “clear particulars” to the applicant of any information it considers would be the reason, or part of the reason, for affirming the decision under review and to invite the applicant to “comment on or respond to” the information.  This obligation is a matter of substantive procedural fairness.

7. Section 359A is expressed in the following terms:

   “(1)Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   …”

8. Accordingly, in this case, such information had to be given to an applicant by one of the methods specified in s.379A of the Act, unless it opted to inform the applicant by way of clear particulars in the manner provided for by s.359AA.

9. Section 379A provides that a document must be provided to a person (in this case the applicant) inter alia by hand, dispatch, pre-paid post, by fax, or electronically. If s.359A is utilised by the Tribunal, the information must be provided to an applicant in writing.

10. Section 359AA provides as follows:

    “(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)if the Tribunal does so—the Tribunal must:

    (i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)     orally invite the applicant to comment on or respond to the information; and

    (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”

11. Section 359A(3) is an enabling provision allowing the Tribunal to give clear particulars at an oral hearing should it choose to do so in the manner provided for by s.359AA. If it elects to utilize s.359AA, it ‘must’ comply with s.359AA(1)(b). A failure to comply with s.359AA is not of itself a jurisdictional error.[7] However, it then ‘casts’ the Tribunal back to s.359A, and if s.359A(1) has not been complied with, the Tribunal has fallen into jurisdictional error.[8]

    [7]     SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415.

    [8]     See MZYFH v Minister for Immigration & Citizenship & Anor (2010) 115 ALD 409 at [31].

Tribunal hearing

1. The Tribunal conducted a merits review on 26 March 2015.  The applicant was represented by a registered migration agent who is also a legal practitioner.[9]  The applicant gave evidence before the Tribunal.  In support of her claim, she called oral evidence from two friends, Mr Arthur Goodwin and Ms Perpete Mboneye, both of whom had provided statutory declarations in support of her claim.

   [9]     CB p 265.

2. The applicant’s representative provided a number of documents to the Tribunal that alleged she had been a victim of family violence at the hands of the sponsor.  Those documents included consultation notes with a general practitioner and statutory declarations from a social worker and a psychologist.[10]

   [10] CB p 276 at [15].

3. At the conclusion of the applicant’s evidence, and before the witnesses, Mr Goodwin and Ms Mboneye were called, the Tribunal member raised the adverse information with the applicant.  The relevant portion of the transcript is as follows:

   “MS MORGAN: All right.  Now, there’s another matter that I need to mention with you that is relevant to this case. And that is that there is information on the Department of Immigration’s file that your marriage with Mr Pili was fake.  And the information that includes quite a lot of personal information about you is that you paid Mr Pili to marry you and that’s why it’s fake.  So that you could achieve residency in Australia.  And there was information from this same source that you lived at 8 Merbein Avenue, Hope Valley and that you had never lived with Mr Pili.

   MS THIRIKWA: At 8 Merbein Avenue?

   MS MORGAN: Yeah. That you lived at 8 Merbein Avenue, Hope Valley and you had never lived with Mr Pili at his address.  That information indicates, on its face, that you were not ever in a genuine marriage with Mr Pili.  And I, as the Tribunal, consider that that information would be the reason, or part of the reason, for affirming the decision under review.  Because it indicates, on its face, that your marriage was contrived and not a genuine marriage.  Do you understand how that information is relevant to this review by what I’m saying?

   MS THIRIKWA:  Ma’am, anyone could just - - -

   MS MORGAN:  Just one moment because I have to give you a warning under the legislation.

   MS THIRIKWA: Yes.

   MS MORGAN:  I invite you to comment on that - on that information.  But I advise you that you can seek additional time to comment on it or to respond to it.

   MS THIRIKWA: Okay.

   MS MORGAN:  So would you like some time separately to talk with Mr Winter about this?

   MS THIRIKWA:  Yes, please.

   MS MORGAN:  How much time would you like?

   MR WINTER: Probably we'd need about l0 minutes.

   MS MORGAN:  Sure.  All right.  All right.  Well, I will adjourn now.  So there are two aspects to the allegation, one that the visa applicant paid Mr Pili to marry her, and the other that they did not live in the same address ever.  So I will leave the hearing room and I will turn the recording off.  Is that best for you?

   MS THIRIKWA: Yes.

   MS MORGAN:  All right.  So I’ll just do that.

   MR WINTER:  Ms Morgan, can I ask whether that was received before or after the breakdown of the marriage?

   MS MORGAN:  Well, that’s why I was asking the questions today.  The information was received in very early January 2000, sorry in January 2012.

   MR WINTER: Right.

   MS MORGAN:  All right.

   MR WINTER: Thank you.

   MS MORGAN:  That’s my memory.  I’ll just check that.  Just one second because I wouldn’t want to - yes, 31 January 2012.  All right.  So I’ll now leave the room and I’ll turn this machine off.”

4. The Tribunal, in clear reference to s.359AA, put the applicant on notice that it regarded at that time the information in its possession would be the reason, or part of the reason, for affirming the decision of the delegate. I say “at that time” because the Tribunal had not yet heard from Mr Goodwin or Ms Mboneye.[12]  The Decision Record makes clear that it relied on the information as part of the reason for affirming the decision under review.[13]

   [12]    See MZYFH op cit at [64].

   [13] CB p 280 at [47].

5. Ms Mboneye gave evidence that she had contact with the applicant and the sponsor through her church.  She had dined with them a couple of times and not noticed any problems between them.  She said that she had visited the applicant in hospital where she was told by the applicant that the sponsor was “harassing” her.[14]

   [14] CB p 276 at [16].

6. Mr Goodwin said that he had known the applicant since 2009 and had regularly dined with the couple at their home.  He witnessed the sponsor behave violently towards the applicant and took her to see a doctor.  The applicant had stayed with him after separation because his house was safe for her.[15]

   [15]    CB pp 276-277 at [17]–[19].

7. The Tribunal found that applicant and the sponsor were not in a spousal relationship that met the definition in s.5F of the Act at the time of application. It relied on adverse information provided to it by an informant to the effect that the marriage was a sham.

Submissions of counsel

1. Mr Ower, for the applicant submitted that the Tribunal failed to give the applicant clear particulars of the information in its possession.  In this case what was required was details of the provenance of the information, and details of any supporting information that gave the allegations cogency.  All the applicant was given by way of particulars was the bare bones of the adverse information received by the Department and an assurance that the informant had provided a lot of personal information about the applicant.  There was a link between the deficiency of the particulars given and the ability of the applicant to meaningfully respond to the information itself.

2. The applicant also submitted that the Tribunal had not properly advised the applicant of her right to seek additional time to comment or respond to the information.  He submitted that it was implicit in the words used by the Tribunal member in the context of the particulars given that any time afforded to the applicant would necessarily be limited to a relatively brief adjournment.

3. Mr Tredrea, for the first respondent, submitted that the Tribunal was not required to give to the applicant a precise account of the ‘dob in’ information.  In disclosing to the applicant the essential details of the sham marriage allegation, the Tribunal had complied with the requirement to give clear particulars because this was in effect the information that the Tribunal regarded would be the reason or part of the reason for affirming the decision under review.  He said, the fact of the ‘Departmental file references’ did not have to be disclosed to the applicant in order to give her clear particulars.  Mr Tredrea acknowledged the submission made by Mr Ower that it was not possible to say exactly what document the Tribunal was relying on as the source of the information.  He submitted that there was no requirement on the Tribunal to explain its reasoning process and that in effect this was what the applicant was suggesting the Tribunal had to do.

4. As to the applicant’s contention that the Tribunal did not properly advise the applicant that she could seek time to comment or respond, Mr Tredrea pointed to the words used by the Tribunal member and submitted that they were clearly compliant with the legislation.

Consideration

1. The Tribunal was in possession of information that it believed would be the reason, or part of the reason, for affirming the decision under review. As a result, s.359A was engaged and the Tribunal was obliged to comply with its terms, unless it opted to inform the applicant orally at the hearing. The Tribunal elected to inform the applicant orally and accordingly it was obliged to comply with s.359AA.

2. In summary, the information was described by the Tribunal as being:

   a)That the marriage was ‘contrived’, not genuine, and the applicant paid money to the sponsor to secure the marriage;

   b)That the applicant and the sponsor had never lived together; and

   c)That the applicant had at the time that the information was disclosed to the Department, always resided at 8 Merbein Avenue, Hope Valley.

   I will refer to this as ‘the substantive allegations’.

3. The Tribunal did not disclose the identity of the informant.  Beyond telling the applicant that the information was not provided by way of letter,[16] there was no information provided to the applicant about the provenance of the information, or any matters referred to in the information that might possibly have had a bearing on its cogency or truthfulness.

   [16]    See transcript at p 56, line 45.

4. Whether or not the identity of an informant, or a copy of a letter containing adverse information can or should be disclosed by the Tribunal in similar circumstances, was dealt with in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another[17]. In that matter the High Court held that the Refugee Review Tribunal was not required to do so.  The Court held that there was a public interest in ensuring that informer information not be denied to the Executive government in making its decisions.  It further held:

   “The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision-maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. It is neither necessary nor appropriate to attempt to state some all-encompassing rules about how administrative decision-makers should deal with information supplied in this way. Not least is that because use of the expression ‘informer’ in the context of administrative decision-making not only does not reveal what kind of information is conveyed by the informant, but also does not reveal what relevance the information may have to the decision that is to be made. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.”[18] (foot note omitted)

   [17] (2005) 225 CLR 88.

   [18] Ibid at [25].

1. The appellant in that matter had submitted that he had been denied procedural fairness because without knowing the identity of the letter writer he could not challenge his credibility.  The Court dealt with that submission in this way:

   “So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality …”[19] (foot note omitted)

   [19]    Veal op cit at [29].

2. Was the disclosure by the Tribunal to the applicant sufficient to have complied with s.359AA and by extension the obligation imposed by s.359A(1). The obligation was to provide “clear particulars” of the information.  The terms “information” and “clear particulars” have been considered by the Federal Court.  In SZNKO v Minister for Immigration and Citizenship & Anor[20] Flick J concluded that “information” was not to be confined to a narrow reading.  His Honour concluded that the requirement to give information to an applicant might not extend to providing the applicant with the whole of a document in which the information is contained.  However, his Honour went on:

   “… But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. …”[21]

   [20] (2010) 184 FCR 505.

   [21] Ibid at [23].

3. His Honour observed that an opportunity to comment or respond meant a meaningful opportunity and noted that one of the objects of allowing an applicant such an opportunity was to ensure that the decision making function of the Tribunal was assisted by an applicant’s comment or response.[22]

   [22] Ibid at [26]-[27].

4. Such assistance would not, in my view, be achieved only if the Tribunal were to accept an applicant’s comment or response.  The Tribunal would be assisted in its decision making function even in circumstances where it was not persuaded by the comment or response, because it would nonetheless have had the benefit of the meaningful opportunity afforded to the applicant.

5. In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship[23], Cowdroy J rejected the appellant’s argument that ss.359A and 359AA required the Tribunal in that case to provide details of the source of the information relied upon in affirming the decision under review. His Honour accepted that the Tribunal had incorrectly identified the source of the adverse information and that the information it did provide was divorced from the context of its source but held:

   “Unlike the facts in SZNKO and SZLIQ however, there was no issue as to the credibility or relevance of the sources of the information …”[24]

   [23] [2013] FCA 842.

   [24] Ibid at [30].

6. His Honour held that the error in that case did not lead to the appellant having been deprived of a meaningful opportunity to comment on or respond to the information because:

   “... the source of the information did not form any part of the Tribunal’s decision; rather it was the substance of the information that was relevant …”[25]

   [25] Ibid at [31].

7. It is the importance of the apparent cogency of the information relied on by the Tribunal in this matter that counsel for the applicant says was the critical issue in this case.  He submitted, in effect, that it was the additional highly specific information personal to the applicant that appears to have given the substantive allegations cogency in the mind of the Tribunal.  For that reason, in this case, that additional information was “part of the reason for affirming the decision under review”.  Conversely, counsel for the first respondent has submitted that it is not apparent from a reading of the decision record that the Tribunal found that particularity was what made the information cogent.  The relevant paragraph of the decision record is below:

   “As the representative submitted, against the visa applicant is the adverse information on the Department’s file in relation to which the Tribunal invited the visa applicant to comment at the close of the hearing.  Although the adverse information was reported anonymously, it was particularised to a degree such that it only could relate to the visa applicant and the sponsor and therefore the Tribunal referred to it at the hearing.  The visa applicant’s response at the hearing that because she loved the sponsor she did not pay him to obtain a visa does not extinguish the Tribunal’s concerns about the particularised adverse information provided to the Department.”[26]

   [26] CB p 280 at [47].

8. I accept the submission of Mr Ower that the degree of particularity in the background information was fundamental to the cogency of the substantive allegations.

9. The opportunity to respond to the information can logically only be meaningful if the information itself is sufficiently disclosed.  One difficulty in analysing the Decision Record in this case is that the Tribunal did not identify the document on which it relied for the information.  The information had presumably been reduced to a Departmental file note or memo on which the Tribunal relied.

10. Counsel referred me to the entries contained on page 3 of the ‘Integrity Site Visit and Interview Plan’ prepared by the Department.[27]  The relevant entry summarises the reasons the matter had been referred for a site visit and interview.  Those reasons contain a summary of information provided to the Department by an unnamed person.  That information included the allegations referred to above at paragraph 30, as well as additional information of a personal nature to both the informant and the applicant.  It is not clear from either the transcript of the hearing or the Decision Record if the entry in the site visit plan is a document on which the Tribunal was relying for the information.  It seems that it cannot have been the only document or source of information on which it relied, because the site visit plan makes no reference to the information having been provided on 31 January 2012.

    [27]    CB p 118.

11. In my view, in this case, for the purposes of s.359A(1)(a), the information which was in the possession of the Tribunal was not confined to the substantive allegations relating to the circumstances surrounding the marriage and living arrangements of the applicant. The context or background to that information could not be clinically divorced from the substantive allegations. That context or background included the information that gave the substantive allegations their cogency and potential believability.

12. There is some support in the Decision Record to suggest that the Tribunal itself accepted, at least in part, the proposition in the above paragraph.  In dealing with the invitation extended by the Tribunal to comment on the adverse information, the Tribunal stated:

    “The Tribunal informed the visa application that the information included Departmental file references and the like about her and the sponsor …”[28]

    [28] CB p 7 at [37].

13. This was not correct.  The Tribunal told the applicant that the information “includes quite a lot of personal information about you”.[29] That was significantly different and substantively less notice than the Tribunal claimed in its Decision Record to have given the applicant.  “Personal information” could be relatively minor details.  “Departmental references and the like” suggests a degree of particularity known to the informant that had the effect of making the information compelling.  The Tribunal acknowledged as much in its Decision Record.[30]  Without the disclosure of the nature and details of that background information, the applicant was not afforded a meaningful opportunity to comment or respond.

    [29]    See transcript p 30, line 15.

    [30] CB p 280 at [47].

14. I accept the submission of Mr Ower, for the applicant, that there was something about the cogency of the information that caused the Tribunal to accept it over the oral evidence of the applicant and her two witnesses.  Without more comprehensive notice of the nature of the information, and the personal information which gave the allegations substance, it is difficult to conclude that the applicant was given a meaningful opportunity to respond.  The information was fundamental to the applicant’s ability to meet the criteria for a partner visa.  The applicant was left to speculate as to the source of the information and its context, namely the personal and/or supporting information that gave the informant’s allegations such a degree of cogency in the mind of the Tribunal.  It is not an answer to that proposition to observe that the Tribunal was not required to show its reasoning process. It was not why the information was cogent but rather the substance of the information that was cogent that should have been further disclosed to the applicant.Further detail, for example the fact of the Departmental references and other personal information could have been given without specifically revealing the identity of the informant and without disclosing a lengthy document in full.  It may, depending on the information and the identity of the informant, have been necessary to reveal the source of the information.

15. I cannot exclude the possibility that such a course, if adopted, would have enabled the applicant to be in a better position to meaningfully respond to the Tribunal.  That might, depending on the information disclosed, have involved considerations of calling other witnesses or providing documentary evidence in response.  It could, if the applicant had been advised of the provision by the informant of “Departmental references and the like”, have caused the applicant to conclude that a lengthier adjournment was required for a more substantial response.  An explanation might have been forthcoming that persuaded the Tribunal to accept the evidence of the applicant.

16. As the applicant herself started to say, anyone could make allegations of that nature.  Only a person providing cogent support to underpin such information would be likely to be given weight by the Tribunal.  In any matter in which the evidence of one witness is pitted against that of another, matters of credibility assume vital importance.  In my view, that is no less the case simply because the evidence of the applicant was pitted against information provided by an unknown informant.  If the applicant’s response to the information was to be anything other than a denial that it was truthful or a stab in the dark, she needed more to respond to.  Her ability to meaningfully respond was in this case, inextricably linked to both the context and supporting information underpinning the adverse information itself.  To be clear, I regard what I have described variously as the context, background and supporting information as part of what was required in this case to give clear particulars of the information that that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review.

17. For those reasons I conclude that the Tribunal did not orally give the applicant clear particulars of the information it considered would be the reason or part of the reason for affirming the decision under review as required by s.359AA(1)(a). Having failed to do it also failed to invite the applicant to respond to the information as required by s.359AA(1)(b)(ii). It is axiomatic that having failed to properly comply with s.359AA(1)(a) and s.359AA(1)(b)(ii), the Tribunal was required to comply with s.359A and it fell into jurisdictional error because it did not give the applicant clear particulars of the information or provide the information and invite a response by one of the methods specified in s.379A.

18. I turn to the argument that the Tribunal failed to properly advise the applicant that she may seek additional time to comment on or respond to the information.  I do not accept the submission of the applicant that the Tribunal failed in this regard.  The invitation extended by the Tribunal is set out in the passage of transcript quoted in these reasons.[31] In my view, the invitation of the Tribunal did comply with the requirements of s.359AA(1)(b)(iii). I do not accept that it was inherent in the words used by the Tribunal member that any additional time would be confined to a brief adjournment. As submitted by Mr Tredrea, the words used by the Tribunal were precisely in accordance with the statutory formulation in s.359AA (1)(b)(iii).

    [31] See also CB p 279 at [38].

19. There is one other aspect of the requirements of s.359AA on which I will comment briefly, although it was not raised in argument by the applicant. The Tribunal was obliged to “ensure, as far as is reasonably practicable” that the applicant understood why the information was relevant, and the consequences of the information being relied on by the Tribunal.  The Tribunal acknowledged this obligation when it posed the question to her after telling her that the information indicated to it that the marriage was “contrived”.  The Tribunal member explained that the information would be the reason, or part of the reason, for affirming the decision under review.  But as can be seen from the transcript quoted above, in the course of explaining that the applicant was entitled to ask for extra time, the member inadvertently cut her off and did not allow her to respond to the question it asked as to whether she understood the relevance of the information to the review. 

20. The applicant was represented by a legal practitioner.  That fact alone did not obviate the need for the Tribunal to “ensure, as far as is reasonably practicable” that the applicant understood why the information was relevant and the consequences that might flow if the information was relied on by the Tribunal.  It is one thing for the Tribunal to explain matters to the applicant - it is quite another for it to ensure that she understood.  This was a matter of substantive procedural fairness, and in my view, it was unfortunately not complied with by the Tribunal. 

21. It is not sufficient to postulate that the applicant’s representative is likely to have informed her in the break that followed of the relevance and consequences of the information. Having elected not to utilise s.359A (with the consequence that it was not required to give notice to the applicant by one of the methods stipulated in s.379A, and electing to provide particulars orally, the onus on the Tribunal to strictly comply with the terms of s.359AA, and in particular subs.(1)(b)(i), was all the greater.[32]

    [32]    MZYFH op cit at [40].

22. Whilst my finding of jurisdictional error is not dependent on this, I think it is incumbent on and reasonably practicable for the Tribunal when utilizing s.359AA to ask the applicant directly if they understand why the information is relevant, and the consequences of the information being relied on by the Tribunal and to seek a response.

1. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 21 June 2016

[11]    See transcript p 30, line 11 to p 31, line 25.