Vo v Minister for Immigration
[2017] FCCA 1170
•2 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VO v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1170 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant Partner (Residence) (Class BS) visa – applicant sought to explain away evidence that suggested he was not cohabitating with spouse at alleged spousal home at time of visit by investigators by giving evidence that spousal home was then being renovated and that he and his spouse often stayed with relatives during the renovations – Tribunal did not accept that explanation because the spouse made no such statement to the investigators at the time of visit – whether spouse’s failure to make corroborating statement was information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review within the meaning of s.359A(1) of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359A, 368, 424A, 430 Migration Regulations 1994 (Cth), reg.1.15A, Schedule 2, cls. 801.221, 820.211(2)(a) |
| Cases cited: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 SZSRG v Minister for Immigration & Anor [2014] FCCA 174 SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 |
| Applicant: | VAN THOAI VO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1415 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 May 2016 |
| Date of Last Submission: | 6 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Vinh Duong & Associates |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1415 of 2015
| VAN THOAI VO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises a short point; and that is whether the second respondent (Tribunal), in affirming a decision of a delegate of the first respondent (Minister), failed to comply with s.359A of the Migration Act 1958 (Cth) (Act).
Background
On 7 September 2011 a delegate of the Minister granted the applicant, Mr Vo, a Partner (Temporary) (Class UK) (subclass 820) visa (820 visa).[1] The 820 visa was granted in response to an application Mr Vo made for an 820 visa and Partner (Residence) (Class BS) visa (801 visa) which he lodged on 6 September 2010. Mr Vo indicated in that application that he wished to be considered for the grant of an 820 visa and, in due course, an 801 visa. The sponsor of the application was Ms Tran, an Australian citizen whom the applicant married on 25 April 2010.
[1] CB137
To have been entitled to the grant of an 820 visa, Mr Vo had to satisfy the Minister that, at the time of application, he was the spouse or de facto partner of Ms Tran.[2] To have been entitled to the grant of an 801 visa, Mr Vo had to satisfy the Minister, among other things, that, at the time of decision, he held an 820 visa, and that he continued to be sponsored by, and continued to be the spouse of, Ms Tran.[3]
[2] Migration Regulations 1994 (Cth) (Regulations) Schedule 2, cl.820.211(2)(a)
[3] Regulations, cl.801.221
On 28 May 2013 officers of the Department of Immigration and Border Protection (then known as the Department of Immigration and Citizenship) visited what Mr Vo had previously represented to be the spousal home. The officers prepared a report of the visit and recorded their opinion that Mr Vo and Ms Tran were not in a genuine spousal relationship (Home Visit Report).[4] The Home Visit Report recorded the following matters:
a)Ms Tran said Mr Vo was not home. She said Mr Vo was at his sister’s house. Ms Tran also said that three persons lived at the house – Ms Tran, Mr Vo, and Ms Tran’s son.
b)In response to a request for identification, Ms Tran went upstairs, and, while there, the officers heard a male voice. Later, Ms Tran said the male voice was that of her cousin.
c)In response to a question, Ms Tran said she did not receive any payments from Centrelink. After the officers informed Ms Tran that, according to her caseworker, Ms Tran received the single parenting payment, she was asked why she had not declared to Centrelink she was married. Ms Tran said she updated her earnings online, and there was no provision for her to advise that she was married.
d)Ms Tran said she and Mr Vo had been married for two years, and they were married on “11 April”. Ms Tran provided information about where she and Mr Vo first met, where they held their wedding ceremony, the number of siblings Mr Vo has and their names, bank accounts she and Mr Vo held, who performed household chores, the cars they own, and whether they had recently purchased assets together.
e)The officers asked for Ms Tran’s phone to view any photos she had. After going upstairs, Ms Tran said she could not find her phone. An officer telephoned Ms Tran’s number, but it went to voice mail.
f)The officers went into Ms Tran’s bedroom and the bathroom. In the bedroom they observed mostly women’s clothing in an in-built wardrobe. In the bathroom they observed one toothbrush, which Ms Tran said she and Mr Vo shared, and a toothbrush in the shower recess, which Ms Tran said her son used.
[4] CB210-214
In a section of the Home Visit Report headed “Referral Report”, it is stated the relationship is “not genuine”, and reasons are given for that outcome. These include Ms Tran’s not having declared to Centrelink her marriage to Mr Vo, Ms Tran’s stating she and Mr Vo had been married for two years when they had been married for one year, Ms Tran providing an incorrect date of their marriage, Ms Tran being unsure how many siblings Mr Vo has, and Ms Tran saying she and Mr Vo used the same toothbrush.
On 22 December 2014 the Tribunal received a statutory declaration made by Mr Vo in which he stated his relationship with Ms Tran ended.[5] Mr Vo stated he moved out of the house he shared with Ms Tran in January 2014, but that he continued to visit Ms Tran and her son. Mr Vo further said he has a close bond with the son, and that he and Ms Tran lodged with Bankstown Local Court a consent order under the Family Law Act 1975 (Cth). On 8 December 2014 the Local Court made consent orders under which Mr Vo and Ms Tran agreed they would have joint responsibility for Ms Tran’s son.[6]
[5] CB282-283
[6] CB288
After Mr Vo appeared before it, the Tribunal, by letter dated 17 March 2015, informed the applicant there was information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, subject to any comments the applicant might have (359A Letter).[7] The particulars the Tribunal purported to give related to two items of information. The first was “Centrelink information”, being information from Centrelink that indicated Ms Tran was receiving single parenting payments, and that Ms Tran’s marriage status was assessed to be “single”. The second item of information was described as “Home visit 22 May 2013”. Under that heading, the Tribunal set out all of the Home Visit Report up to that part which is headed “Referral Report”. After quoting the relevant passages from the Home Visit Report, the Tribunal stated:
The above information is relevant because the above information if taken at face value can lead the tribunal to infer that Ms Tran considered herself single because she continued to receive parenting payment single. The tribunal may also infer that at the time of the home visit you and Ms Tran were not cohabitating. The combination of this information could lead the tribunal to find that you and Ms Tran were not in a spousal relationship at that time of the home visit.
This in turn could leave the tribunal to not accept your evidence about the nature of your relationship with Ms Tran.
[7] CB334-338
The Tribunal also noted in its letter there is misleading information in the application Mr Vo and Ms Tran lodged with the Local Court for a consent order in relation to Ms Tran’s son. [8] It is unnecessary to set out the information the Tribunal considered to be misleading.
[8] CB337
Mr Vo responded with a letter from his representative dated 30 March 2015[9] to which there was attached a number of other documents, including a further statutory declaration by Mr Vo,[10] and a statement by Ms Tran’s mother.[11] In his statutory declaration, Mr Vo addressed the matters raised in the Home Visit Report by providing information about his and Ms Tran’s living arrangements. Mr Vo stated that:(i) at the time of the home visit, the home was under major renovation during which “we often stayed at either my sister or my mother in law’s house”, Ms Tran’s son stayed at Mr Vo’s mother-in-law’s house and “our toiletries are with us”;(ii) Mr Vo’s and Ms Tran’s important documents had been given to Mr Vo’s uncle (iii) other items such as old clothes, wedding albums, old photographs were kept in boxes; (iv) and, Mr Vo’s and Ms Tran's everyday clothes were kept in a suitcase, which were stored in Mr Vo’s cars.
[9] CB339
[10] CB348
[11] CB354-355.
The Tribunal’s decision
The Tribunal noted that Mr Vo and Ms Tran had separated, but that Mr Vo was relying on cl.801.221(6) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That subclause provided as follows:
An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 820 visa; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)either or both of the following circumstances applies:
(i)either or both of the following:
(A)the applicant;
(B)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii)the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Although the Tribunal expressed “grave concerns about the consent order”, because there appeared to the Tribunal “to be misleading information in the application to the court”, the Tribunal accepted that the consent order, “at face value”, satisfied cl.801.221(6)(c)(ii) of Schedule 2 to the Regulations. [12] The Tribunal noted, however, that Mr Vo could only satisfy cl.801.221(6) if Mr Vo “would have otherwise satisfied cl.801.221(2) or (2A) but for the relationship ceasing”.[13] For the Tribunal, that meant it had to be satisfied Mr Vo was “the spouse” of Ms Tran, as required by cl.801.221(2)(c), which, in turn, meant the Tribunal had to be satisfied Mr Vo was the “spouse” of Ms Tran within the meaning of s.5F of the Act. That section provides (emphasis added):
[12] CB389, [27]
[13] CB389, [28]
(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)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Regulations identifies matters that must be considered when determining whether an applicant is in a married relationship with another person for the purposes of s.5F(2) of the Act. These include the financial aspects of the relationship, the nature of the household (which includes the living arrangements of the persons), and the commitment the parties to the relationship have to each other.
The Tribunal accepted there was evidence which, at face value, indicated Mr Vo and Ms Tran “shared financial resources; cohabitated; socialised; were seen by friends and family [as] being members of a couple and until at least January 2014 provided each other with companionship and emotional support, and saw the relationship was long term”.[14] The Tribunal, however, considered the evidence concerning the relationship as “not compelling or overwhelming”,[15] and that any finding of the nature of the relationship “relies to a large degree on the assessment [of the] parties[’] credibility and comes to evidence about their relationship”.[16]
[14] CB389, [34]
[15] CB390, [35]
[16] CB390, [36]
The Tribunal concluded it was not satisfied Mr Vo and Ms Tran “had ever been in a spousal relationship”.[17] First, Ms Tran did not disclose the marriage to Centrelink, which suggested Ms Tran held herself out to be single for Centrelink purposes.[18] Second, the results of the home visit suggested that, at least at the time it occurred, Mr Vo was not residing at the address in which he claimed to live.[19]
[17] CB391, [45]
[18] CB390, [38]
[19] CB390, [38]
The Tribunal referred to the responses Mr Vo gave to a number of matters raised in the 359A Letter. Relevant to the proceedings before me is the Tribunal’s reference to Mr Vo’s having stated that, at the time of the visit, the house was under major renovation, and that, during the renovation, he and Ms Tran often stayed either with his sister or with his mother-in-law.[20] The Tribunal made the following finding in relation to this part of Mr Vo’s explanation (emphasis added):[21]
Regarding the home visit [it] is clear from the content of the report that renovations were indeed being undertaken at the time of the visit. However, Ms Tran made no claim or suggestion that Mr Vo was living elsewhere during the renovations. Ms Tran’s clothing and possessions were still on the premises. Mr Vo claims in his response that they often stayed at other relatives place [sic] during the renovations. Ms Tran made no such claim during the home visit.
[20] CB390, [39], second dot point.
[21] CB391, [42]
Further, the Tribunal found there was “underwhelming evidence concerning the relationship”.[22]
[22] CB391, [44]
Ground of application
Mr Vo relies only on ground 2 of the application, which is as follows:
The Tribunal erred in breaching s.359A of the Migration Act.
Particulars
(a)Failure to disclose, and disclose in the manner required by that section, that a reason for affirming the decision under review was that the applicant’s estranged spouse did not inform immigration inspectors that the applicant was not living at the marital home during renovations.
Before I consider the parties’ submissions, it will be useful to set out the text of s.359A(1) of the Act and the cases that have considered s.424A of the Act, which is materially indistinguishable from s.359A of the Act. That is necessary because Mr Vo relies on earlier cases which the Full Federal Court has suggested are not easily reconcilable with what the High Court has said about s.424A of the Act.
Section 359A(1) of the Act
Subsection 359A(1) of the Act provides:
Subject to subsections (2) and (3) [which are not relevant to the issue I have to decide], 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 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 consequence 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.
When it applies, s.359A(1) of the Act requires the Tribunal to do two things. The first is to give particulars of “information”. The “information” of which the Tribunal must give particulars is “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. The second thing s.359A(1) requires the Tribunal to do is to ensure, as far as is reasonably practicable, that the applicant understands why the “information” is relevant to the review, and the consequence of its being relied on in affirming the decision that is under review. Subsection 359A(1) does not expressly state when the Tribunal comes under the obligation to do the two things it requires the Tribunal to do; but it is implicit that the duty arises as soon as the Tribunal considers there is “information” that “would be the reason, or part of the reason, for affirming the decision under review”.
These observations imply the following propositions:[23]
a)The “information” to which s.359A(1)/s.424A(1) of the Act applies must be information the Tribunal has in its mind.
b)The “information” must be in the Tribunal’s mind as a part of a chain of reasoning, the conclusion of which is the affirmation of the decision under review.
c)The Tribunal must have in its mind the chain of reasoning of which the information forms a part in advance of the Tribunal’s determination of the application for review before it.
d)The Tribunal intends to affirm the decision under review by applying the chain of reasoning of which the information forms part. It is that intention that triggers the obligations imposed by s.359A(1)/s.424A(1) of the Act.
e)The Tribunal’s intention is conditional. Before the Tribunal can act on its intention, and assuming the information does not fall within the categories of information described in s.359A(4)/s.424A(3) of the Act, the Tribunal must do that which s.359A(1)/s.424A(1) requires the Tribunal to do. In effect, the Tribunal is required to communicate the particulars of the information, and the chain of reasoning of which the information forms a part and on the basis of which the Tribunal intends to affirm the decision under review.
f)If the applicant comments or responds to the invitation, the Tribunal must consider the comments and response before it considers whether to carry through with its intention to rely on the information, and the chain of reasoning of which it forms a part.
[23] See SZSRG v Minister for Immigration & Anor [2014] FCCA 174 at [20]-[25]
These propositions leave unexplained the notion of “information”. More importantly, they say nothing about whether the information must be located at any particular point in the chain of reasoning, the conclusion of which is the affirmation of the decision under review. These matters have been examined in the cases, at least to some extent.
I begin with VAF v Minister for Immigration and Multicultural and Indigenous Affairs where Finn and Stone JJ said:[24]
[T]here is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:
(i)the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74;
(ii)the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and
(iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
[24] [2004] FCAFC 123 at [24]
Second, there is NBKS v Minister for Immigration and Multicultural and Indigenous Affairs, a case on which counsel for Mr Vo particularly relies.[25]NBKS concerned the non-existence of two items of information. The first was the absence from a medical report of a statement that the appellant would react in the way the appellant claimed he would react if he were to be returned to his country of nationality. The second item was the result of an Internet search the Refugee Review Tribunal (RRT) carried out of the appellant’s name in which the appellant’s name did “not appear in any context”.[26] The Minister submitted that neither omitted item was “information” because, as was stated by Finn and Stone JJ in VAK v Minister for Immigration and Multicultural and Indigenous Affairs,[27] “information” did not extend to “identified gaps, defects or lack of detail or specificity in evidence”.
[25] [2004] FCAFC 174
[26] [2004] FCAFC 174, [67]
[27] [2004] FCAFC 174
As to the omission in the medical report, Allsop J (as his Honour then was) noted that the RRT’s reference to the medical report not stating the appellant would react in a particular way “was not in answer to a proposition that [the] report did say that”; rather “it was a statement that the form of [the report] and its failure to say that the [appellant] would behave in this way was of assistance in concluding that he would not”. In other words, it was “the absence of such a statement” in the report that the RRT took “as supportive of the conclusion that” the appellant would not behave in a particular way.[28] His Honour held that the letter the RRT provided to the appellant in that case should have disclosed this aspect of the medical report and should have pointed its relevance to the review, namely, “that it tended against the proposition that he might so behave”.[29]
[28] [2004] FCAFC 174, [74]
[29] [2004] FCAFC 174, [75]
As to the negative results of the Internet search, Allsop J said the “web search results were a part of the reason”.[30] In support of that conclusion, his Honour relied[31] on the following passage from his Honour’s judgment in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs:[32]
In my view, in the light of [SAAP v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] HCA 24], in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
[30] [2004] FCAFC 174, [77]
[31] [2004] FCAFC 174, [78]
[32] [2006] FCAFC 2, [215] (emphasis in original)
Third, there is the High Court’s decision in SZBYR v Minister for Immigration and Citizenship.[33] That case concerned a husband and wife who had applied for protection visas. The question before the High Court concerned statements made by the husband visa applicant in a statutory declaration the RRT found were inconsistent with later statements he made. In their written submissions before the High Court, the visa applicants submitted it was the inconsistencies between the statements that constituted the relevant “information” for the purposes of s.424A of the Act. In their oral submissions, however, the visa applicants “focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise”.[34] The plurality found that neither the inconsistencies between the statements made in the statutory declaration and the later statements, nor the statements made in the statutory declaration, could properly be characterised as “information” or “information that would be the reason, or a part of the reason, for affirming the decision under review”.
[33] [2007] HCA 26
[34] [2007] HCA 26, [15]
The plurality’s reasons for concluding the inconsistencies were not “information” are to be found in the following passage (emphasis added):[35]
. . . if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”[36].
“does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[35] [2007] HCA 26, [18]
[36] (2004) 206 ALR 471 at 476‑477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282‑284.
From this passage it is apparent the plurality was of the view that the inconsistencies between the statements made in the statutory declaration and the later statements were not “information” because “information” relates to the existence of evidentiary material or documentation, not to the appraisal of such material. The plurality found that the RRT’s conclusion of inconsistency constituted an appraisal of evidence.
The plurality’s reasons for concluding the statements contained in the statutory declaration did not constitute “information” which the RRT considered would be the reason or part of the reason for affirming the decision under review are to be found in the following passage (emphasis added):[37]
Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
[37] [2007] HCA 26 at [17]
This passage suggests that before “evidentiary material or documentation” can be characterised as “information” the Tribunal “considers would be the reason or part of the reason for affirming the decision under review”, there must be a direct inferential link between the information and the Tribunal’s intention to affirm the decision under review. That is, the information must serve as the immediate premise, or one of the immediate premises, on which the Tribunal intends to rely for affirming the decision under review. That is supported by the following aspects of this part of the plurality’s reasons.
a)The plurality noted that the reason for affirming the decision under review specified in s.424A of the Act is a matter that “depends upon the criteria for the making of that decision”. That indicates the plurality was of the view that the “information” must be directly referable to the criteria, or, more particularly, the absence of one or more of the criteria, an applicant must satisfy before he or she may be granted a visa.
b)The plurality held the relevant portions of the statutory declaration “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”. That is, the statements contained in the statutory declaration, considered alone, were not capable of constituting a reason for affirming the decision under review. The plurality noted that, considered alone, the statements supported the visa applicants’ claims.
c)Third, an applicant’s making inconsistent statements is relevant to the assessment of an applicant’s credibility and, therefore, in many cases, would be considered by the Tribunal to be part of the reason for affirming the decision under review. The plurality, however, did not consider that this relevance rendered the statements made in the statutory declaration “information” the Tribunal considered “would be the reason or part of the reason for affirming the decision under review”. The plurality did not do so because, considered alone, the statements made in the statutory declaration were incapable of constituting reasons for affirming the decision under review.
If this analysis of the passage from the plurality’s judgment is correct, it can be said the plurality narrowly construed s.424A of the Act; and that narrow construction arose from the plurality’s giving great weight to the words “the reason” as it appears in the expression “would be the reason or part of the reason for affirming the decision under review” (emphasis added).
There are, however, two aspects of s.424A of the Act that may point to a broader construction of that section. The first is the second of the two obligations s.424A imposes on the Tribunal when that section applies, namely, to ensure as far as is practicable that the applicant “understands why [the information] is relevant to the review and the consequence of it being relied on in affirming the decision that is under review”. This suggests s.424A applies to information that is “relevant to the review”, which is broader than information that contains by its “terms a rejection, denial or undermining of” an applicant’s claims. Further, if in truth “information” was restricted to information that contains by its “terms a rejection, denial or undermining of”, there would be little reason why the Tribunal would be required to explain the relevance of such information to the applicant. Its relevance would be self-evident. The requirement that the Tribunal ensures the applicant understands the relevance of the information to the review implies the information may be relevant in a less obvious way; and in particular, it may be relevant as part of a chain of reasoning where the information does not constitute the immediate premise for the Tribunal’s intending to affirm the decision under review.
The second aspect of s.424A of the Act that may point to a broader construction than that given by the plurality in SZBYR is “the reason or a part of the reason” (emphasis added). Viewed alone, the expression implies a chain of reasoning which has as its conclusion “the reason” and, as its part or parts, the premise or premises that support that reason. This may include premises that do not by themselves reject, deny, or undermine an applicant’s claims, but which do so in combination with other premises that form a part of the reason for affirming the decision under review.
Perhaps a surer guide to what might be meant by “the reason or a part of the reason” (emphasis added) in s.359A/s.424A is the text of s.368 and s.430 of the Act which is substantially alike. Subsection 368(1) relevantly provides:
Where the Tribunal makes its decision on a review . . . the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for decision; and
(c)sets out the findings on any material questions of fact;
(d)refers to the evidence or any other material on which the findings of fact were based; . . .
Subsections 368(1) and 430(1) of the Act differentiate between four things: the Tribunal’s decision on the review; its reasons for decision; its findings on any material questions of fact; and evidence or any other material on which its findings of fact are based. These four things imply a chain of inferences between them: the Tribunal’s decision (for example, affirming the decision under review) must be based on reasons for decision (for example, the applicant is not a person who has a well-founded fear of persecution on the ground of religion); those reasons must in turn be based on findings the Tribunal has made on material questions of fact (for example, the applicant does not hold the religious beliefs he claims to hold); and the findings themselves must be based on evidence (for example, the evidence and matters which indicate to the Tribunal that the applicant is not a person who can be believed). When read with s.368/s.430 of the Act, it could be said that “a part of the reason for affirming the decision” that appears in s.359A(1) and s.424A(1) includes evidence or any other material on which the Tribunal intends to make findings of fact on the basis of which, in turn, the Tribunal intends to rely as a reason for affirming the decision under review.
If s.368(1)/s.430(1) of the Act are taken to be a guide of what, for the purposes of s.359A(1)/s.424A(1) of the Act, constitutes information that would be “the reason or a part of the reason” for affirming the decision under review, it could be said that “information” in s.359A(1)/s.424A(1) of the Act means evidence the Tribunal considers would form a part of a chain of reasoning the conclusion of which would be the Tribunal not accepting any one or more of the material facts on which the applicant relies for claiming he or she has satisfied the relevant criteria for the granting of the visa for which he or she applies. “Information”, so defined, would exclude evidence that has a tendency to contradict or explain away evidence which, when considered with other evidence, has the tendency of affirming the decision under review. More particularly, it would exclude evidence that has the tendency to contradict or explain away evidence on which the Tribunal intends to rely as a reason for not being satisfied the applicant has satisfied one or more of the material facts on which the applicant relies for claiming he or she has satisfied the relevant criteria for the granting of the visa for which he or she applied. It appears that Allsop J had this limitation in mind in NBKS where his Honour said of the omission in the medical report that it “was not in answer to a proposition that [the] report did say that”, but that “it was a statement that the form of [the report] and its failure to say that the [visa applicant] would behave in this way was of assistance in concluding that he would not”. [38]
[38] [2004] FCAFC 174, [74]
Notwithstanding these observations, there is no question I am bound to follow the plurality’s construction in SZBYR of s.424A of the Act, which the High Court reiterated in Minister for Immigration and Citizenship v SZLFX.[39] As I have already noted, I understand the plurality in SZBYR to have construed s.424A(1) of the Act to apply only to evidentiary material or documentation that serves as the immediate premise, or one of the immediate premises, on which the Tribunal intends to rely for affirming the decision under review.
[39] (2009) 238 CLR 507; [2009] HCA 31
Finally, I need only note the following observations of the Full Federal Court in SZTGV v Minister for Immigration and Border Protection:[40]
The reasoning of the High Court in SZBYR and SZLFX is not readily reconcilable with that in SZEEU and NBKS. What is clear from SZBYR and SZLFX is the High Court’s endorsement of the proposition that “information” within the meaning of s424A(1) of the Act does not extend to the “prospective reasoning process” of the Tribunal. Further, the information must be information that “would”, not “could” or “might”, be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant’s claims.
[40] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [18]
Parties’ submissions
In his written submissions, counsel for Mr Vo submitted that “the fact that Ms Tran made no claim that Mr Vo was living elsewhere during the renovations” (asserted omitted statement) was ““information” in the relevant sense” and that it “served to undermine [Mr Vo’s] claims as to be a party to a genuine marriage”.[41] In his oral submissions, counsel for Mr Vo, relying on the judgment of Allsop J in NBKS, submitted “information” includes evidence of something’s not being said. Counsel further submitted:
a)the asserted omitted statement was not a gap in the evidence, but was “something which was actually observed and stated by the Tribunal from the evidence that was available”;[42]
b)the asserted omitted statement was not a doubt or an inconsistency in Mr Vo’s evidence;[43]
c)the High Court has not overruled NBKS, and the Full Federal Court did not, in SZTGV, conclude NBKS was inconsistent with SZBYR; and
d)the Tribunal relied on the asserted omitted statement as a direct ground for not believing Mr Vo.[44]
[41] Applicant’s Outline of Submissions, [29]
[42] T14.5
[43] T15.25
[44] T24.35
In his written submissions, counsel for the Minister submitted that the asserted omitted statement constituted an absence of evidence that was relevant because it was inconsistent with Mr Vo’s later account that he was living elsewhere during the renovations and, the inconsistency was a matter for the Tribunal’s subjective appraisal.[45] Counsel further submitted that even if the asserted omitted statement was “information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review”, the Tribunal complied with s.359A because it provided Mr Vo with a full text of the Home Visit Report.[46] In his oral submissions, counsel for the Minister submitted that, in truth, Mr Vo was complaining about the failure by the Tribunal to disclose an inference the Tribunal wished to draw on the basis of the omitted statement. That being so, s.359A was not engaged;[47] and this “is an inconsistency case”.[48] Counsel further submitted that:
a)there was no occasion for me to attempt to reconcile what the High Court said in SZBYR with NBKS; I am bound to follow SZBYR;[49]
b)the asserted omitted statement did not, on its terms, constitute a rejection, or denial, or undermining of Mr Vo’s claims; on the contrary, it supported his claim;[50] and
c)the asserted omitted information was not evidentiary material or documentation.[51]
[45] First Respondent’s Outline of Submissions, [24]
[46] First Respondent’s Outline of Submissions, [25]
[47] T25.20
[48] T31.25
[49] T27.10
[50] T30.40
[51] T31.15
Was s.359A of the Act engaged?
The question is whether Ms Tran’s making “no such claims during the visit”— those claims being that Mr Vo and Ms Tran “often stayed at other relatives place during the renovations” (Omitted Statement)—was information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That question can only be determined by inference from the Tribunal’s reasons for decision, because there is no direct evidence of the Tribunal considering, before it published its decision, the Omitted Statement would be the reason or a part of the reason for affirming the delegate’s decision.
The Omitted Statement was not relevant to the review until Mr Vo claimed he and Ms Tran stayed elsewhere during the renovations. Mr Vo made this claim in response to the 359A Letter. The Omitted Statement was formulated, and it became relevant, only when the Tribunal came to consider whether to accept Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations. The Omitted Statement became relevant because it was a circumstance on which it was reasonably open to the Tribunal to rely for not accepting Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations. That, in turn, was relevant because Mr Vo’s claim, if accepted, had the tendency to explain away the matters identified in the 359A Letter which the Tribunal considered would be part of the reason for concluding Mr Vo was not in a genuine spousal relationship with Ms Tran.
The Tribunal did rely on the Omitted Statement for not accepting Mr Vo’s claim that he and stayed elsewhere during the renovations; and it is reasonable to infer that it did so by applying the following reasoning:
a)During the house visit Ms Tran gave an account of where Mr Vo was, saying he was at his sister’s house.
b)If Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations were true, Ms Tran would have said so at the time of the house visit.
c)Ms Tran did not say she and Mr Vo stayed elsewhere during the renovations (this is the Omitted Statement),
d)Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations, therefore, should not be accepted.
In my opinion, the Omitted Statement was not “evidentiary material or documentation” and, for that reason, it was not “information” within the meaning of s.359A of the Act. It was an inference the Tribunal drew on the basis of the premises stated in paragraphs 44(a) and (b) of these reasons. It formed part of “the Tribunal’s subjective appraisals, thought processes or determinations”.[52] For that reason, the Tribunal’s intending to rely on the Omitted Statement did not engage s.359A of the Act. I will, however, consider whether s.359A was engaged on the assumption the Omitted Statement was “information” within the meaning of s.359A of the Act.
[52] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]
It can certainly be said the Omitted Statement constituted a denial or undermining of Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations. That is, it would be information the Tribunal considered would be the reason for not accepting Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovations. Such reason, however, would have engaged s.359A of the Act (as s.424A has been construed by the plurality in SZBYR) only if Mr Vo’s claim that he and Ms Tran lived elsewhere during the renovations was an element or integer of Mr Vo’s claim for a Partner visa. Mr Vo’s claim was not such an element or integer. Mr Vo’s claim was relevant only because it had the tendency to explain away matters the Tribunal considered would be the reason for not accepting Mr Vo’s claim that he cohabitated with Ms Tran and, therefore, was in a genuine spousal relationship with Ms Tran.
The Omitted Statement was equivalent to Ms Tran stating that she and Mr Vo did not live elsewhere during the renovations. So understood, the Omitted Statement did not constitute an immediate premise on which the Tribunal intended to rely to conclude it was not satisfied Mr Vo was in a genuine spousal relationship with Ms Tran. It constituted an immediate premise for the Tribunal’s intending not to accept Mr Vo’s claim that he and Ms Tran stayed elsewhere during the renovation. The Tribunal, therefore, did not consider the Omitted Statement would be the reason, or a part of the reason, for affirming the delegate’s decision. Considered alone, the Omitted Statement was not reasonably capable of undermining or contradicting Mr Vo’s claim that he and Ms Tran enjoyed a genuine spousal relationship. If anything, the Omitted Statement, considered alone, supported Mr Vo’s claims for a Partner visa because it assumed that Mr Vo and Ms Tran cohabitated; the meaning conveyed by the Omitted Statement is that Mr Vo and Ms Tran did not stay elsewhere during the renovations.
Even on the broader construction of the expression “would be the reason or part of the reason for affirming the decision under review” to which I have referred above, the Omitted Statement, assuming it was “information”, would not fall within s.359A of the Act. That would be so because Mr Vo made the claim that he and Ms Tran stayed elsewhere during the renovations to explain away information the Tribunal identified in the 359A Letter as information it considered would be the reason or part of the reason for affirming the delegate’s decision. The Tribunal, therefore, did not rely on the Omitted Statement as a reason or part of the reason for affirming the delegate’s decision; it relied on the asserted omitted statement as a reason for not accepting the Omitted Statement that, if accepted, would have had the tendency to explain away the information identified in the 359A Letter on which the Tribunal intended to rely as the reason or a part of the reason for affirming the decision under review.
I now return to the parties’ submissions.
a)It follows from what I have said that I accept the Minister’s submissions that the Omitted Statement did not engage s.359A of the Act because it was not information that by its terms constituted a denial or undermining of Mr Vo’s claim that he was entitled to a Partner visa.
b)I do not accept the Minister’s submission that the 359A Letter provided particulars of the Omitted Statement. It could not have done so because the Omitted Statement was formulated and became relevant only after Mr Vo responded to the 359A Letter.
c)Whatever may be the consistency or lack of consistency between the plurality’s decision in SZBYR and NBKS, I am required to apply the plurality’s construction and reasoning in SZBYR. As I have already concluded, the plurality construed s.424A of the Act as being limited to information that serves as an immediate premise on which the Tribunal intends to rely in affirming the decision under review; and the Omitted Statement did not constitute such immediate premise in the case before me. Even if, however, NBKS were correct, the Omitted Statement would not have been information or, if it were, it was not information the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision. The Omitted Statement was in answer to something Mr Vo said; it was not, like the omitted statement in the medical report in NBKS, a matter on which the Tribunal relied for concluding the decision should be affirmed.
d)I do not accept Mr Vo’s submission that the Tribunal relied on the Omitted Statement as a direct ground for not believing Mr Vo.[53] As I have already concluded, the Tribunal relied on the Omitted Statement as a reason for not accepting a statement Mr Vo made which, if accepted would have undermined information on which the Tribunal intended to rely for affirming the delegate’s decision.
[53] T24.35
Conclusion and disposition
The Tribunal’s intending to rely on the Omitted Statement did not engage s.359A of the Act; and it made no jurisdictional error by not giving to Mr Vo particulars of the Omitted Statement or by not explaining to Mr Vo the relevance of the Omitted Statement to the review.
I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 2 June 2017
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