Zeng v Minister for Immigration - [2007] FMCA 169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZENG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 169

MIGRATION – Migration Review Tribunal – aged dependent relative -looseness of language – relevant considerations – irrelevant considerations – whether hearing in public – request for further oral hearing.

Evidence Act 1995, ss.81, 87
Migration Act 1958, ss.359A, 359B, 363A, 365, 421, 424A, 429

Migration Regulations 1994, regs1.03, 1.05A, sch.2 cl 838.212

Algama v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 253
Herald v Weekly Times & The Magistrates Court [1999] VSC 136
Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383
Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690
Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97
Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 223 ALR 1
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Pelling v Bow County Court [2001] EWCA Civ 122
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SFGB v Minister for Immigration & Multicultural & indigenous Affairs [2003] FCAFC 231
SZAYW v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 80 ALJR 1599
Vakauta v Kelly (1989) 167 CLR 568
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212
Zeng v Minister for Immigration [2005] FMCA 546

Applicant:

QING YI ZENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	MIGRATION REVIEW TRIBUNAL
File Number:	MLG 689 of 2006

Judgment of:

Riley FM

Hearing date:

23 November 2006

Date of Last Submission:

23 November 2006

Delivered at:

Melbourne

Delivered on:

1 March 2007

REPRESENTATION

Counsel for the Applicant:

Anthony Krohn

Solicitors for the Applicant:

Clothier Anderson

Counsel for the First Respondent:

Stephen Donaghue

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The title of the proceeding be amended so that the name of the first respondent is Minister for Immigration and Citizenship.
The application filed on 26 May 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 689 of 2006

QING YI ZENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 27 April 2006 which affirmed a refusal of an application for an aged dependent relative visa, subclass 838.
The applicant is a 72 year old citizen of the Peoples Republic of China. On 7 December 1999, she applied for an aged dependent relative visa (“the visa”). The applicant was nominated by her son, Mr Ming Can Lin (“the nominator”). On 15 February 2002, a delegate of the first respondent refused to grant the applicant the visa.
On 6 March 2002, the applicant lodged with the Tribunal an application for review of the delegate’s decision. On 1 March 2004, the Tribunal handed down its decision, affirming the decision of the delegate. The applicant then filed an application in the Federal Court seeking judicial review of the Tribunal’s decision dated 1 March 2004. The matter was transferred to the Federal Magistrates Court. On

27 April 2005, orders were made by Riethmuller FM quashing the decision and remitting the matter to the Tribunal for further consideration: Zeng v Minister for Immigration [2005] FMCA 546.
By letters dated 15 August 2005, 5 September 2005, 20 October 2005, 15 November 2005 and 21 November 2005, the applicant’s migration agent made additional written submissions and provided additional evidence to the Tribunal. On 8 November 2005, the Tribunal conducted a further oral hearing.
On 27 April 2006, the Tribunal handed down its second decision affirming the delegate’s decision. On 26 May 2006, the applicant filed an application in this court seeking judicial review of the Tribunal’s second decision. On 14 August 2006, the applicant filed an amended application, a supplementary court book and contentions of fact and law. On 25 August 2006, the applicant filed three affidavits, being the affidavits of Karyn Anderson affirmed on 23 August 2006, Michael John Clothier affirmed on 23 August 2006 and Peter John Kay affirmed on 22 August 2006. Contentions of fact and law were filed by the first respondent on 10 October 2006.

Initial claims

In her initial visa application, the applicant said that she was a 65 year old retired widow. She said had worked in the past as a clerk and then, for almost 30 years, as an accountant. She said she had three children, two married daughters, born in 1956 and 1957, who were still living in China, and a son, the nominator, who is now living in Australia.
The applicant came to Australia a number of times between

14 December 1996 and 13 November 1999 on visitor visas. On the last occasion, she remained in Australia and lodged her aged dependent relative visa application on 7 December 1999.
Four statutory declarations were lodged with the visa application. Zhao Xue Wei declared that she had delivered $2,000 to the applicant on behalf of the nominator during her visit to China between December 1997 and March 1998. Yan Ping Liang declared that she had delivered $1,500 to the applicant on behalf of the nominator in February 1998. Ya Shi declared that he had delivered $1,500 to the applicant on behalf of the nominator during a visit to China in August 1998. The nominator declared that he had paid for the applicant’s return air fares to Australia in December 1996, December 1998 and November 1999. He also declared that he had given his mother $3,000 at the end of her first two visits to Australia and $1,000 when he visited her in China in May 1999.
A certificate dated 7 June 1999 was also lodged with the visa application certifying that the applicant received a monthly retirement pension of ¥475.22 RMB per month. Additionally, the applicant lodged a copy of an overseas draft for $1,000 dated 25 March 1996 showing the applicant as the beneficiary and the nominator as the customer.

Proceedings before the first Tribunal

In support of her application to the Tribunal, the applicant lodged a number of documents including:
a)a submission stating that the payment of ¥475 RMB per month “is probably the high water mark”.
b)a statutory declaration made by the nominator on 11 June 2003;
c)a certificate to the effect that the applicant had not been allotted a house by her employer or paid a housing allowance;
d)a receipt for rent of 400 yuan per month for each of November and December 1999 and January 2000; and
e)a certificate to the effect that the applicant was in receipt of a limited medical reimbursement fund of no more that 60 RMB per month.
In his statutory declaration made on 11 June 2003, the nominator declared that his mother’s monthly expenses in the three years before her visa application were:
Rent – 400 RMB
Gas, electricity etc – 150 RMB
Clothing, personal hygiene etc – 150 RMB
Food – 600 RMB
Medication expenses (excluding hospital stay) – 300 RMB
Total - $1,600
Less pension – 475 RMB
Less medical reimbursement – 60 RMB
Total shortfall in basic living expenses – 1,065 RMB
At the hearing before the Tribunal on 9 October 2003, the applicant gave oral evidence. The applicant told the Tribunal that her bank account in China had been closed and her daughter collected her pension on her behalf.
Subsequent to the hearing before the Tribunal, it sought and obtained from the applicant’s former employer information to the effect that:
a)the applicant’s pension had increased to 880 RMB per month;
b)it was paid directly into her bank account; and
c)her medical allowance was approximately 100 RMB per month.
On 8 December 2003, the Tribunal sent the applicant an invitation to comment on that information, and on information that the minimal cost of living in Guangzhou was 300-360 RMB per month. The applicant by her agent responded by letter dated 20 January 2004, acknowledging that the applicant’s pension had increased a number of times and, since July 2003, had been 880 RMB per month and stating that her maximum reimbursement for medical expenses was 100 RMB per month. Additionally, a letter from the nominator dated 1 January 2004 stated that the applicant had closed her bank account but that another bank account had been opened by the applicant’s employer after the applicant came to Australia. The nominator also submitted evidence from the internet to the effect that Guangzhou was one of the world’s most expensive cities.
The first Tribunal affirmed the delegate’s decision. On review, in Zeng v Minister for Immigration [2005] FMCA 546, Riethmuller FM remitted the matter to the Tribunal for further hearing on the basis that the Tribunal had misdirected itself on two issues and failed to make necessary findings. Riethmuller FM set out, at [11] and [13], the matters that in his Honour’s view needed to be considered and were relevant, as follows:
[11] What can be identified from the definition and the decisions is that a proper determination of the question of substantial dependence will require considerations of at least the following factors:
a) the nature of the person's needs (within the meaning of the regulations);
b) the extent to which those needs are being met by the person from their own resources;
c) the extent to which the needs are being met by the nominator; and
d)whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.
…
[13] The MRT must then determine whether or not any dependence that it may have found was for a ‘substantial period’. There is no specific definition of a ‘substantial period’. This must be determined by considering the facts and circumstances of the particular case. The following factors would need to be relevant:
(a) the actual period of dependence;
(b) the reason for the dependence; and
(c) the extent or nature of the dependence.

Proceedings before the second Tribunal

The applicant’s migration agent lodged with the Tribunal a submission dated 15 August 2005 and further supporting documentation. At the second Tribunal hearing, on 8 November 2005, the applicant gave evidence of the financial support she had received from her son since 1992 when he first started to assist her. She also gave evidence of her monthly cost of living in Guangzhou in December for the years 1996, 1997, 1998 and 1999, and her projected cost of living if she were to return to China and live in Guangzhou in 2005. The nominator gave evidence concerning the assistance he had provided to the applicant since 1992.
In relation to the payments, the Tribunal noted at [44] that:
… although [the nominator’s] evidence in relation to the amounts of money he has given the visa applicant corroborated that given by the visa applicant, his evidence in relation to the method of transfer was different vis he gave evidence that payments between 1993-1995 was sent to her by way of bank cheques for $1000 sent to the visa applicant’s home whereas she told the Tribunal that these payments were transferred to her via the Bank of China. He seemed unsure but said he thought that the monies had been paid by bank cheque to her home and that the visa applicant must be mistaken in her recollection.
By letter dated 21 November 2005, and pursuant to s.359(2) of the Migration Act 1958 (“the Act”), the Tribunal invited the applicant to provide the following additional information:
·original bank statements indicating that [she] deposited the funds in [her] account; and
·bank statements showing withdrawal of funds and receipts for purchases or expenditure; and
·bank statements showing the receipt of [her] pension between December 1996 and November 1999.
A response in the form of a letter from the applicant’s migration agent was forwarded to the Tribunal on or about 19 December 2005. It said that the applicant had operated a passbook account and she had been required by the bank to return the passbook to the bank when she closed the account. The letter stated that the applicant had attempted to obtain bank statements from the bank, but that it did not maintain transaction records for so long. The letter also stated that the applicant had not retained receipts, except the rental receipts previously provided.
On 17 January 2006, the Tribunal wrote to the applicant pursuant to s359A of the Act stating:
The Tribunal wishes to clarify the following 2 issues:
·the monthly rate of the pension paid to you by the Guest Hotel, Guangzhou Enterprise Group Co Ltd; and
·the method of payment of the pension following your arrival in Australia in December 1999.
The Tribunal’s letter explained that the submission of 18 June 2003 said that the pension of 475 RMB per month was the high water mark, while the applicant later admitted she had received 880 RMB per month. The Tribunal’s letter further explained that the applicant had said that she had closed her bank account, but that the overseas post had advised that the applicant’s pension in 2003 was paid straight into her bank account.
A response was provided in the form of a statement dated 19 February 2006 from the applicant and a letter dated 22 February 2006. The letter said, among other things, that the Tribunal should give the applicant a further oral hearing on credibility issues.

Second Tribunal’s reasons for decision

In its reasons for decision, the Tribunal set out its decision under headings derived from the decision of Riethmuller FM on review of the first Tribunal’s decision. The Tribunal, firstly, considered the nature of the applicant’s needs, saying at [78], that:
On 21 November 2005 the Tribunal requested the visa applicant under section 359(2) to produce evidence of purchases and expenditure and she was unable to produce any evidence, claiming through her agent that China is a cash based economy and it is unreasonable to expect production of receipts given the time since the period between the period December 1996-99 and now. The Tribunal notes the evidence given by the visa applicant at the hearing outlined at paragraph 26 above and in submissions in relation to the nature of her needs. Whilst the cost of food appears disproportionately high (more than rent) the Tribunal accepts that the visa applicant’s expenses in the period between December 1996 and December 1999 may have been in the order outlined in the tables at paragraph 26. The Tribunal is unable to be certain of this, however, as, for the reasons explained below, the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details.
Secondly, the Tribunal considered the extent to which the applicant’s needs were being met by the applicant from her own resources. The Tribunal said:
[88] In essence the visa applicant submits through her agent that:
·the submission that 475 RMB was the maximum reached by her pension relates to the maximum reached while she was in China;
·she was not aware of any increases in her pension because her daughter was collecting the pension while she was being reimbursed by the nominator;
·she was not aware that a bank account had been opened in her name and it was probably only opened in June 2003.
[89] In relation to the first bullet point, given that both the request for the information and the provision of information are both expressed in the present tense it is reluctant to accept the proposition that the information (“475 RMB is probably the high watermark”) was a reference to the situation before the visa applicant’s arrival in Australia in December 1999. However, when viewed in the context of the delegate’s decision, the Tribunal accepts that there may have been some confusion about whether the Tribunal’s letter of 29 May 2003 was a request for information about the visa applicant’s pension past and present or only as it was while she was in China. The Tribunal makes no adverse findings against the visa applicant in relation to her agent’s submission of 18 June 2003.
[90] In relation to the second and third bullet points the Tribunal does not accept that the visa applicant was not aware that a bank account was being operated in her name and that she was not aware of pay increases in her pension beyond 475 RMB. The Tribunal finds her explanations convoluted and implausible. The visa applicant’s account was said to have been closed upon her departure for Australia and the pension collected by the visa applicant’s daughter and a bank account reopened in the visa applicant’s name in June 2003 for no apparent reason and unbeknownst to the visa applicant. The visa applicant was said to have been reimbursed in kind by the nominator but she was not aware of the increases. The visa applicant, a former bookkeeper, had as at the time she appeared before the first Tribunal in October 2003 been pursuing an application as an aged dependent relative a germane issue of which was her financial circumstances at the time of application and the time of consideration by the delegate and by the first Tribunal yet claims she took no interest in whether or not her pension had increased and whether a bank account was being operated in her name.
[91] The Tribunal noted that the agent submits that the visa applicant’s candour in relation to financial matters is demonstrated by her disclosure of 2 further increases but notes that the notification of increases were made on 20 January 2004 that is, subsequent to the Tribunal’s notification to her (on

8 December 2003) that it had been informed by the post of the increase to 880RMB. As indicated the Tribunal finds it implausible that the bank account was closed and then reopened in 2003 and finds it more likely that the account was extant throughout but, even if it accepted that the bank account was closed and then reopened in 2003, it does not accept the visa applicant’s assertion that she was not aware that a bank account had been opened in 2003 and was being operated in her name.
[92] In the result the Tribunal is not satisfied with the reliability of the visa applicant’s evidence in relation to financial matters including her financial resources and the extent of assistance she has been receiving from the nominator and the extent of assistance she has been receiving from other sources.
The Tribunal then considered the extent to which the needs of the applicant were being met by the nominator. After considering the evidence on this point, the Tribunal concluded:
[95] Whilst the Tribunal accepts that the passage of time makes it more difficult for applicants to obtain documentary evidence it does not accept that it should make positive findings in the absence of cogent independent evidence.
[96] The Tribunal is not satisfied that the level of financial support by the nominator to the visa applicant was as claimed. In light of the Tribunal’s lack of satisfaction with the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, however, this finding is not determinative of the outcome of this review. Even if the Tribunal were satisfied that the level of financial support by the nominator to the visa applicant was as claimed it would not be satisfied that the visa applicant was wholly and substantially dependent on the nominator because of the unreliability of the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, a variable which has to be ascertained before a determination can be made as to whether the visa applicant was wholly and substantially dependent on the nominator.

Fourthly, the Tribunal considered whether the nominator had an obligation to meet the applicant’s needs having regard to the nominator’s relationship with the applicant. The Tribunal concluded that the applicant may have had such an obligation to assist his mother, but it was “not satisfied due to the lack of evidence that he was wholly and substantially meeting her needs in the relevant period.”
The Tribunal then dealt briefly with the matters specified in paragraph [15] of Riethmuller FM’s decision.

The legislation

Pursuant to clause 838.212 of Schedule 2 of the Migration Regulations 1994, a criterion for the grant of a subclass 838 visa is that the applicant is “an aged dependent relative of an Australian relative” at the time of the visa application.
The term, ‘aged dependent relative’, is defined in regulation 1.03, which provides:
"aged dependent relative" , in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)has never married, or is widowed, divorced or formally separated from his or her spouse; and
(b)has been dependent on that person for a reasonable period, and remains so dependent; and
(c)is old enough to be granted an age pension under the Social Security Act 1991 .
The term “dependent” is relevantly defined in regulation 1.05A as follows:
(1)… a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter ….

The authorities

In Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690, Branson and Hely JJ at [11], [13] and [14] said as follows:
[11] Thus Scott's case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the Full Court in Scott adopted the paraphrase of a person who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially".
…
[13] However, in Scott, Fisher and Spender JJ said that a person may be dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other. Thus there may be cases in which a purely quantitative approach will not necessarily determine the issue of dependence. And, in Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97 Mansfield J held that the expression "wholly or substantially dependent" was intended to convey that the visa applicant had a need to rely upon another person for financial support, rather than simply describing the fact that another person was providing that financial support.
[14] The issue of substantial dependency is to be determined at the time of decision, but the enquiry is as to the state of affairs subsisting at that point in time which may involve consideration of earlier events, and of future probabilities. In Aafjes v Kearney (1976) 50 ALJR 454, 458 Gibbs J said that the question of whether there is dependence at a particular date is not to be answered by looking only to the circumstances as they existed at that date; past events and future probabilities have to be considered.

Grounds of application

The amended application filed on 14 August 2006 contained the following grounds of review:
1. The decision was affected by jurisdictional error in that the Tribunal failed correctly to interpret or to apply the law.
PARTICULARS
(a)Under Regulation 1.05A of the Migration Regulations 1994 the applicant had to have been “wholly or substantially reliant” on the nominator for a substantial period immediately before her application for the visa but in discussing the facts of the applicant’s matter the Tribunal incorrectly and repeatedly referred to this criterion as requiring the applicant to have been “wholly and substantially reliant” (Emphasis added, see for example Decision Record, paragraphs 75, 77, 96, 97, 98, 99);
(b)The Tribunal said (at paragraph 78 of the Decision Record) that:
“the Tribunal accepts that the visa applicant’s expenses... may have been in the order outlined... The Tribunal is unable to be certain of this, however, as... the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details” (Emphasis added),
but the Tribunal is not required to be certain in order to make findings favourable to the applicant;
(c) The Tribunal was “not satisfied that the level of financial support by the nominator to the visa applicant was as claimed” (Decision Record, paragraph 96) but this was because the Tribunal’s approach introduced a requirement not imposed by law that “it does not accept that it should make positive findings in the absence of cogent independent evidence” (Emphasis added, Decision Record, paragraph 96).
(d) The Tribunal considered whether the applicant’s needs were actually being met by the nominator when that was not a requirement under Regulation 1.03 or 1.05A of the Migration Regulations 1994.
(e) The Tribunal considered that it was necessary to establish whether the nominator had an obligation (and the extent of such obligation) to meet the needs of the applicant (Decision Record, paragraph 70, CB 282.8), when that was not a requirement under Regulation 1.03 or 1.05A of the Migration Regulations 1994.
(f)In breach of section 365 of the Migration Act 1958 the hearing of the applicant’s application for review by the Tribunal was held behind a locked door and not in public.
(g)The Tribunal had concerns about the credit of the applicant after receiving material in answer to letters sent by the Tribunal after the Tribunal had conducted a hearing of the matter. The Tribunal had a continuing obligation under section 360 of the Migration Act 1958 to give the applicant a further opportunity to provide evidence and present arguments relating to these issues but did not do so.
2.The decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness or natural justice to the applicant.
PARTICULARS
The Tribunal had concerns about the credit of the applicant after receiving material in answer to letters sent by the Tribunal after the Tribunal had conducted a hearing of the matter. In this situation the Tribunal was obliged to give the applicant a further opportunity to address these concerns at a further oral hearing and thus to give evidence and present arguments relating to these issues but did not do so
3. The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.
PARTICULARS
(a)The Tribunal said at paragraph 78 of the Decision Record that:
“the Tribunal accepts that the visa applicant’s expenses may have been in the order outlined... The Tribunal is unable to be certain of this however, as....the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details” (Emphasis added),
but the Tribunal also had before it evidence independent of the applicant of living expenses in China. If the Tribunal was “unable to be certain” of the claimed expenses because “the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details”, this was because the Tribunal failed to have regard to this independent evidence;
(b) The Tribunal was “not satisfied that the level of financial support by the nominator to the visa applicant was as claimed” (Decision Record, paragraph 96) and said that “it does not accept that it should make positive findings in the absence of cogent independent evidence” (Emphasis added, Decision Record, paragraph 95), but the Tribunal had before it evidence from witnesses other than the applicant or the nominator corroborating a number of the payments the nominator claimed to have made to the applicant. In the absence of a finding that the nominator and these witnesses were not truthful witnesses, the Tribunal did have and ought to have had regard to “cogent independent evidence”.
(c) The Tribunal had before it, but did not have regard to, evidence relevant to the determination of whether the applicant was an aged dependent relative of the nominator at the time of her application for the visa, namely evidence of the later support of the applicant by the nominator since her arrival in Australia.
4. The Tribunal fell into jurisdictional error or acted without jurisdiction in that the decision was based on a finding or findings not open on the evidence or material before the Tribunal.
PARTICULARS
The Tribunal had no evidence from which it could have concluded that if the nominator’s level of support to the nominator was accepted, the applicant could still not satisfy Regulation 1.03 or 1.05A of the Migration Regulations 1994 as she would still not have been wholly or substantially reliant on the nominator for the period from about December 1996 to about May 1999.
5. The Tribunal failed to make findings on relevant or material matters or failed to determine substantive issues raised on the material or evidence before the Tribunal.
PARTICULARS
In order to determine whether the applicant was wholly or substantially reliant on the nominator at the time of visa application, the Tribunal was required pursuant to Regulation 1.03 and 1.05A of the Migration Regulations 1994 to make findings concerning the applicant’s expenses, the amount of the applicant’s income from her pension in China and the amount of the nominator’s financial contribution to her support at the time she applied for the visa and for a substantial period immediately before that time, but the Tribunal failed to make these findings.

Ground 1(a): wholly and substantially reliant

The applicant’s written submissions on this ground were as follows:
[31] The Tribunal, although initially referring to the correct formulation of the test as “wholly or substantially reliant” (in referring to general legal authority at CB 281, paras [67], [68] and [71], then, when turning to the instant matter, repeatedly misstated the test under Regulation 1.05A as whether the applicant had to have been “wholly and substantially reliant” upon the nominator (Decision Record, paras 75, 77, 96, 97, 98, 99.)
[32] It is submitted that the Tribunal repeatedly directed itself to the incorrect test, and thus failed to direct its attention to the test it was required to apply. It thus fell into jurisdictional error.
The first respondent’s written submissions on this ground were as follows:
[11] There is no doubt that on a number of occasions the Tribunal did paraphrase reg 1.05A inaccurately (although there were also many occasions upon which it paraphrased the provision correctly— see, e.g., CB 262.6, 263.1, 280.3, 280.5).
[12] It is submitted that the errors in paraphrasing reg 1.05A do not demonstrate that the Tribunal did not direct itself to the correct test. Indeed, it is clear from the Tribunal’s reasons that the Tribunal understood the question that it was required to answer. That is particularly clear from the Tribunal’s observation, which it made immediately after reviewing the relevant authorities, that:
‘wholly and substantially dependent’ refers to a predominance of a person’s dependence upon another which in some cases can be measured using a purely quantitative approach but in other cases will require ‘a longer-term view’. (italics in original)[CB282.8]
[13] That paragraph shows that when the Tribunal used the words ‘wholly and substantially dependent’ it understood them to require an inquiry concerning ‘predominant’ dependence. That is precisely the inquiry that is called for by the authorities. Thus, the Full Federal Court has held that:
‘Substantially’ must be considered alongside ‘wholly’ in the context of the circumstances of the case. It must not be considered in isolation. The word ‘substantially’ connotes ‘in the main’ and ‘essentially’.... The dictionary meaning of the word ‘substantial’ being ample, material and considerable would lend support to this construction. [footnote: Commissioner of Superannuation v Scott (1987) 12 ALD 38.]
[14] Similarly, in Minister for Immigration & Multicultural Affairs v Graovac [footnote: [1999] FCA 1690, [8] per Branson and Hely JJ], the Full Federal Court said
Scott’s case establishes that ‘substantially’ where used in the phrase ‘wholly or substantially dependent’ is appropriately paraphrased by the words ‘in the main’, or ‘as to the greater part’.... Thus Scott’s case, and the cases which have followed it, treat ‘substantially’ in the phrase ‘wholly or substantially dependent’ as involving the notion of predominance [footnote: [1999] FCA 1690, [10]-[11] per Branson and Hely JJ.]
[15] It follows that the Tribunal’s error concerning the language of reg 1.05A did not result in it asking the wrong question. The applicant’s submission on this ground is an impermissible invitation to the Court to approach the Tribunal’s reasons ‘with an eye keenly attuned to error’. [footnote: Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2.] When considered as a matter of substance, the Tribunal’s slip in language clearly did not have any effect on the Decision.
[16] Indeed, the particular error that the Tribunal made in paraphrasing the statutory criteria could only have been significant if the applicant had failed because the Tribunal found that she was not ‘wholly’ dependent upon the nominator, even though it was satisfied that she was ‘substantially’ dependent upon him. It is only in that situation that any significance would have attached to the difference between the words ‘and’ and ‘or’.
[17] On the facts of this case, the Tribunal obviously did not accept that the applicant was even ‘substantially’ dependent upon the nominator. For that reason, the factual findings of the Tribunal provide a further reason for concluding that the paraphrasing error was immaterial to the result.
The applicant’s oral submissions in relation to this ground reiterated her written submissions. The first respondent in oral submissions in relation to this ground said that there was no real difference between the phrase “wholly and substantially” and the phrase “wholly or substantially”. The first respondent submitted that when the word “and” is used it was necessary for both elements to be in existence with the effect, in the present case, that the word “substantially” added nothing. On the other hand, the first respondent submitted that, when the word “or” is used, it was enough, in the present context, for there to be substantial dependence.
The first respondent further submitted that the Tribunal did not say in this case:
I accept that the applicant was substantially dependent but she had another source of support so she was not wholly dependent.
Rather, the first respondent argued, it was obvious that the Tribunal did not accept that the applicant was substantially dependent on the nominator so the misuse of the word “and” could not have made a difference to the outcome. The first respondent emphasised that the Tribunal at paragraph 75 of its reasons for decision, under the heading Discussion and Findings, said the following:
[75] … “wholly and substantially dependent” refers to a predominance of a person’s dependency upon another which in some cases can be measured using a purely quantitative approach but in other cases will require “a longer-term view” (Emphasis in original).
The first respondent argued that although the Tribunal wrongly used the word “and” rather than “or”, the passage from paragraph 75 clearly indicated that the Tribunal had the correct test in mind.
I accept the first respondent’s submissions in relation to this ground. The Tribunal’s reference to the phrase “wholly and substantially dependent” referring to “a predominance of a person’s dependency”, with the word “predominance” appearing in the Tribunal’s decision in italics, makes it clear that the Tribunal did not proceed on the basis that the test would only be satisfied if the applicant were wholly dependent upon the nominator. Paragraph 75 of the Tribunal’s reasons is expressed in the Tribunal’s own words and it represents its own summary of the principles to be applied in cases such as this. The applicant does not suggest that the principle set out by the Tribunal in paragraph 75 of its reasons for decision was in itself wrong. Nor does the applicant point to any aspect of the decision that reveals a misapplication of the correct test. In the circumstances, this ground is not made out.

Ground 1(b): unable to be certain

The applicant’s written submissions in relation to this ground were as follows:
[33] The Tribunal said at paragraph 78 of the Decision Record that it:
“...accepts the visa applicant’s expenses in the period between December 1996 and December 1999 may have been in the order outlined in the tables at paragraph 26 [of the Tribunal’s “Reasons for Decision”: presumably intended to be a reference to paragraphs 34-36, CB 265.5-267.2]. The Tribunal is unable to be certain of this, however, as for the reasons explained below, the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details.” (CB 283.7, para [78]) (emphasis added)
[34] This was a critical finding as the Tribunal later said that,
“…In light of the Tribunal’s lack of satisfaction with the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, however, this finding is not determinative of the outcome of this review. Even if the Tribunal were satisfied that the level of financial support by the nominator to the visa applicant was as claimed it would not be satisfied that the visa applicant was wholly and (sic) substantially dependent on the nominator because of the unreliability of the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, a variable which has to be ascertained before a determination can be made as to whether the visa applicant was wholly and substantially dependent on the nominator.” (CB 287.5, [98]) (Emphasis added)[actually, [96]).
[35] This is a further jurisdictional error as the Tribunal is not required to be certain in order to make findings favourable to the applicant, but only to be satisfied on the balance of probabilities that each criterion is met.
The first respondent’s written submissions in relation to this ground were as follows:
[20] This is another submission [by the applicant] that invites the Court to scrutinise the Tribunal’s reasons with an eye finely attuned to error.
[21] This Court should not readily infer from a single comment in lengthy reasons that the Tribunal has made such a basic error as to believe that it could make findings favourable to the applicant only if it was certain of the underlying facts. It is highly unlikely that the Tribunal would have misunderstood is functions so fundamentally. The Court should therefore interpret the Tribunal’s reasons in the manner suggested by the applicant only if that is the only interpretation that is reasonably open.
[22] Contrary to the applicant’s submission, a benign interpretation of the sentence that the applicant attacks is open. In that sentence, the Tribunal was not suggesting that it could make findings favourable to the applicant only if it was ‘certain’ of the facts. Instead, it was stating that the consequence of its doubts about the reliability of the applicant as a witness (doubts that it was open to the Tribunal to hold) was that the Tribunal did not have reliable material available to it upon which it could act in making findings concerning the applicant’s actual costs of living. In other words, the sentence had nothing to do with the relevant standard of proof. It was merely a comment to explain why the Tribunal did not set out the living expenses that the applicant would have incurred in China.

The applicant said in oral submissions on this ground that the Tribunal incorrectly sought certainty when the Tribunal only needed to be satisfied on the balance of probabilities. The applicant submitted that the Tribunal’s requirement for certainty when combined with the Tribunal’s erroneous use of the phrase “wholly and substantially” lead to the conclusion that the Tribunal imposed a higher test than is stipulated in the regulations.
The first respondent said in oral submissions in relation to this ground that the Tribunal had said that it was “unable to be certain” in passing. The first respondent argued that the Tribunal obviously did not mean that it could not make any findings except when it was certain of the relevant matters. The first respondent argued that the Tribunal saying that it was “unable to be certain” of one particular matter in a thirty page decision falls a long way short of establishing that it improperly imposed a burden of proof on the applicant. The first respondent said that it was apparent in paragraph 78 of the Tribunal’s reasons for decision that the Tribunal considered that it did not have credible material before it upon which it could be satisfied.
The first respondent relied also on paragraphs 16 and 17 of Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 which are as follows:
[16] The primary judge said the Tribunal could reject the respondent’s application for a protection visa only if either his claims were rejected or if it found that circumstances had so changed in Fiji as to make the claims no longer relevant to his likely treatment on return. In our view, in a case such as the present, the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims. In reviewing a decision, the Tribunal stands in the shoes of the original decision-maker, in this case the Minister’s delegate. See s 415 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The delegate is bound by s 65 of the Act, as it applies to a protection visa, to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. Section 65 shows that the relevant decision is not whether a person is or is not a refugee, but whether the decision-maker is satisfied as aforesaid. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275:
"A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that a person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the ‘decision’ for which provision is made by the Act."
[17] We are unable to agree with his Honour’s statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
"It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."
See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473.
The first respondent argued that the Tribunal in this case simply did not have the material before it that enabled it to be satisfied of the requisite matters, with the result that the decision had to be affirmed.
In my view, a fair reading of the Tribunal’s reasons for decision is that the Tribunal considered that the applicant’s expenses were possibly as she had claimed but that the Tribunal was not satisfied of that on the balance of probabilities because, for reasons it explained later, it was not satisfied that the applicant was a reliable witness in relation to financial details. The Tribunal’s use of the word “certain”, rather than “satisfied”, was a poor use of language rather than an indication of a fundamental misapprehension consisting of a belief that the Tribunal could only make findings if it felt certain of the relevant facts. The impugned phrase is an example of “looseness in the language” or “unhappy phrasing”, matters with which the court on judicial review should not be concerned: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]. This ground is not made out.

Ground 1(c): the absence of cogent independent evidence

The applicant’s written submissions on this point were as follows:
[36] The Tribunal erred in adopting an approach that “It is not accepted it should make positive findings in the absence of cogent independent evidence”. This amounts to the Tribunal further importing a requirement not found in the Act or the regulation, and is analogous to imposing a burden of proof by way of an additional requirement of “cogent independent evidence”.
[37] When combined with the Tribunal’s observations that “The Tribunal is unable to be certain” concerning the applicant’s claimed expenses referred to above, these references by the Tribunal indicate that it was effectively imposing an improper burden of proof or an improperly prescriptive means of satisfying the Tribunal of relevant matters (see Ejueyitsi v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 328 at [26], [87]-[88], [90] per Weinberg J.
The first respondent’s written submissions on this point were as follows:
[24] This submission [by the applicant] reads a statement in the Tribunal’s reasoning which was made in a particular factual context as if it were intended to propound a general rule of law. [footnote: Applicant’s contentions, para 36.] The statement in question was made in the context of a discussion of evidence concerning the provision of financial assistance by the nominator from Australia to the applicant in China. The Tribunal concluded that much of the evidence relating to that assistance was implausible. [CB 287.4] That was a factual judgment that the Tribunal was entitled to make. In cases of this kind, it is important that the Court does not overstep the boundaries of its role. As Wilcox, Marshall and Jacobson JJ observed in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs:
Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been… it cannot be said the Tribunal member’s view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. [footnote: [2004] FCAFC 139, [17] (emphasis added).]
[25] The transfer of significant sums of money from one country to another is an activity of a kind that naturally lends itself to the creation of documentary records (whether at the point of the withdrawal of funds, the transfer of the funds, or the deposit of funds). Given the Tribunal’s concerns about the reliability of the oral evidence that had been placed before it, it was natural for the Tribunal to seek further evidence in order to allay its concerns. It specifically requested such evidence pursuant to s.359 of the Act, but the evidence sought was not provided. [CB207]
[26] In those circumstances, where it was open to the Tribunal to consider that documentary material should have existed, it was open to the Tribunal to decide that in the absence of such material it would not make positive findings that the claimed financial assistance had been provided. That is all the Tribunal was saying in the passage about which the applicant complains.
[27] While there was some evidence which purported to corroborate the applicant’s claims about the provision of money to her by the nominator (the evidence of people who claimed to have taken cash to her from Australia), [CB40, 44, 46] the weight to be given to that evidence was a matter for the Tribunal. The Tribunal did not overlook this evidence. [CB262.8, 286.9] Once it was considered, the Tribunal was entitled to give it whatever weight it wished (including no weight). The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a factual assertion by an applicant is not made out. [footnote: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348; Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857, [19] (Full Court).] Further, the High Court has accepted that it does not involve an error of law for the Tribunal to reject corroborative evidence even in the absence of evidence that contradicts that corroborative evidence. [footnote: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [49] per McHugh and Gummow JJ.]
[28] The applicant relies upon Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs [footnote: [2006] FCA 328], but nothing in that case is inconsistent with the propositions set out above. In this case, unlike that case, the Tribunal did not approach its task by reference to the ‘burden of proof (whether ‘common sense’ or otherwise). [footnote: [2006] FCA 328, [9].]
[29] The function of the Tribunal was determined by s.65 of the Act. The effect of that section, in combination with regs 1.03 and 1.05A, was that the visa could be granted to the applicant only if the Tribunal was ‘satisfied’ that the applicant was ‘dependent’ upon the nominator. The applicant had the opportunity to advance whatever material she wished in an endeavour to assist the Tribunal to reach that state of satisfaction.
[30] A decision-maker may not be ‘satisfied’ that something has occurred even though he or she cannot exclude the possibility that it occurred. While in that situation it may be impossible for the Tribunal to reject an applicant’s claims, it does not follow that the Tribunal is required to accept those claims. [footnote: McDonald and Director-General of Social Security (1984) 1 FCR 354, 358-359 (Woodward J) 368-369 (Jenkinson J); Lodkowski v Comcare (Goldberg J, unreported, 5 March 1998).] As the Full Federal Court accepted in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003:
As s.65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. [footnote: [2005] FCAFC 73, [17].]
[31] That same approach has been taken in several other Full Federal Court decisions. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [footnote: [2004] FCAFC 215, [15]. See the further examples of similar decisions, where no adverse finding was made, being upheld in NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033, [33]; Applicant A159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 473.], for example, the Tribunal had found that the applicant’s claims made were at ‘such a general and vague level that the Tribunal cannot establish the relevant facts’. The Tribunal therefore had not made any findings either accepting or rejecting the claims. That approach was upheld by Ryan, Jacobsen and Lander JJ, who pointed out, having referred to s.65, that:
It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. [footnote: [2004] FCAFC 215, [15]. See also Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, 226.]
[32] It follows that the applicant’s submissions that the Tribunal erred in imposing an improper burden or standard of proof should be rejected. The Tribunal was correct in concluding that, because it was not satisfied that the visa criteria were met on the available evidence, it was required to reject the application.
In oral submissions, the applicant said that there was no finding that the witnesses called by the applicant were not honest. The applicant argued that the Tribunal’s unwillingness to make a finding “in the absence of cogent independent evidence” meant that the Tribunal had erroneously required the applicant to discharge a burden of proof.
The first respondent said in oral submissions that the Tribunal properly determined that it had no credible evidence to enable to it to be satisfied of the necessary matters and therefore the visa had to be refused. The first respondent argued that the Tribunal did not impose an impermissible burden of proof on the applicant but it was simply not satisfied about the necessary matters.
While paragraph 95 of the Tribunal’s reasons for decision could have been better expressed, I do not consider that that paragraph indicates that the Tribunal was under the misapprehension that it should only make positive findings of fact where they were supported by cogent independent evidence. Rather, in my view, a fair reading of the Tribunal’s reasons for decision taken as a whole shows that the Tribunal was not satisfied, for reasons which it gave, with the reliability of the applicant’s evidence and it was in those circumstances that the Tribunal considered that it should not make positive findings in the absence of cogent independent evidence.
The Tribunal in essence said that it did not accept the applicant’s word based on matters that the Tribunal found to be implausible or inadequately explained. The Tribunal was not saying that it could never make findings purely on the basis of an applicant’s sworn evidence. Rather, the Tribunal was saying that it had concerns about the applicant’s material which might have been allayed with cogent independent evidence but no such evidence was presented in this case. The Tribunal was clearly cognisant of the evidence of Mr Kay, Ms Xue, Ms Ping and Mr Ya Shi as that evidence is summarised in paragraph 93 of the Tribunal’s reasons for decision. However, it is also clear that the Tribunal did not regard that evidence as being cogent and independent. The Tribunal was entitled to take that view and to give the evidence before it the weight that seemed appropriate to the Tribunal.
In any event, the Tribunal went on to state in paragraph 96 of its reasons for decision that the Tribunal’s lack of satisfaction about the extent to which the nominator supported the applicant was not determinative. The more critical point, in the Tribunal’s view, was the unreliability of the evidence concerning the extent to which the applicant’s needs were met from her own resources. Accordingly, any error in relation to the assessment of the extent to which the applicant’s needs were being met by the nominator would not have affected the outcome. This ground is not made out.

Grounds 1(a), (b) and (c) in combination

The applicant also argued that grounds 1(a), (b) and (c) in combination showed that the Tribunal misunderstood its task and imposed a burden of proof on the applicant. I reject that submission. The Tribunal considered key aspects of the applicant’s evidence to be implausible or otherwise not credible. While some aspects of the Tribunal’s decision might have been better expressed, those matters do not, alone or in combination, show that the Tribunal made a jurisdictional error.

Ground 1(d): needs actually being met

The applicant’s written submissions in relation to this ground were as follows:
[38] The Tribunal also fell into jurisdictional error because it considered whether the applicant’s needs were actually being met. It concluded that it was “not satisfied due to the lack of evidence that he [the nominator] was wholly and substantially meeting her [the applicant’s] needs in the relevant period.” [Paragraph [97] of the Tribunal’s reasons for decision]. This reference by the Tribunal to whether the nominator was actually meeting the applicant’s needs is submitted to be a misinterpretation of the relevant law.
[39] In Commissioner for Superannuation v Scott [1989] 13 FCR 404, Fisher and Spender JJ said that a person may be dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other (quoted by the Tribunal at Decision Record para [71], CB 261.7).
[40] In Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690, Einfeld J said (at [3]):
“In Commissioner for Superannuation v Scott [1989] 13 FCR 404, a Full Court of this Court (Fisher, Spender and Pincus JJ) stated that “dependency” means a “need for support” and that a person does not necessarily cease to have dependency merely because the person bearing the dependency is not satisfying the need at a particular time. In Minister for Immigration & Multicultural Affairs v Pires [1998] 160 ALR 97, Justice Mansfield drew a distinction between the need for financial support, which is dependency, and the actual provision of that support which is not an essential element of dependency. I respectfully agree with this formulation: see also Moon v Minister for Immigration & Multicultural Affairs [1998] FCA 1762.
[41]In the same case Branson and Hely JJ agreed (at [13]):
13. However, in Scott, Fisher and Spender JJ said that a person maybe dependent upon another so long as he or she has a need for support, notwithstanding the fact that the need is, for one reason or another, not being satisfied by that other. Thus there may be cases in which a purely quantitative approach will not necessarily determine the issue of dependence. And, in Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALP 97 Mansfield J held that the expression “wholly or substantially dependent” was intended to convey that the visa applicant had a need to rely upon another person for financial support, rather than simply describing the fact that another person was providing that financial support.
The first respondent’s written submissions on this ground were as follows:
[34] This is another ground in which an attempt is made to create jurisdictional error out of a particular choice of words.
[35] It is apparent from the Tribunal’s reasons that it accurately understood the law in relation to this point. The same passages in the authorities upon which the applicant relies to support the submission that the Tribunal made an error were quoted and relied upon by the Tribunal in its reasons. [CB280-281] [footnote: See, in particular, Minister for Immigration and Multicultural and Indigenous Affairs v Pires (1998) 160 ALR 97.] There is simply no basis upon which the Court could infer that the Tribunal considered it necessary for the nominator to show that he was actually meeting the applicant’s needs (as opposed to her having a need to rely upon him). Nor is there any suggestion that the application was refused because of a failure to meet this supposed ‘criteria’.

In oral submissions, the applicant referred to the decision of the Full Federal Court in Graovac and emphasised that a person can be dependent even though the person’s needs are not actually being met. The applicant argued that the Tribunal had directed itself to an irrelevant matter.
The heading for the passage of the Tribunal’s reasons for decisions which contains the sentence with which this ground is concerned is as follows:
(d)whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant
[97] The Tribunal accepts that the nominator may have had an obligation to assist his mother, the visa applicant and accepts that he may have assisted her financially from time to time. It is, however, not satisfied due to the lack of evidence that he was wholly and substantially meeting her needs in the relevant period.
It is clear that in the passage cited immediately above, the Tribunal was dealing with paragraph 11(d) of the reasons for judgment of Riethmuller FM in Zeng v Minister for Immigration [2005] FMCA 546 where His Honour said:
[11] What can be identified from the definition and the decisions is that a proper determination of the question of substantial dependence will require considerations of at least the following factors:
a) the nature of the person's needs (within the meaning of the regulations);
b) the extent to which those needs are being met by the person from their own resources;
c) the extent to which the needs are being met by the nominator; and
d)whether the nominator has an obligation (and the extent of the obligation) to meet those needs having regard to the nominator’s relationship with the applicant.
The heading for paragraph 97 of the Tribunal’s reasons for decision is identical to paragraph 11(d) of the reasons for judgement of Riethmuller FM. His Honour said that the matter mentioned in paragraph (d) was a matter that required consideration and the Tribunal proceeded to consider it. In fact, the Tribunal accepted that the nominator may have had an obligation to meet the applicant’s needs. In doing so, the Tribunal considered a matter that Riethmuller FM held it was necessary to consider. Similarly, the question of the extent to which the applicant’s needs were being met by the nominator was a question that Riethmuller FM specified in paragraph 11(c) of his Honour’s reasons for decision as a matter requiring consideration. The Tribunal considered that matter.
However, it does not appear that the matters stated in paragraphs 97 of the Tribunal’s reasons for decision were an integral part of the Tribunal’s reasoning process. In fact, at paragraph 96 of its reasons for decision the Tribunal said:
Even if the Tribunal were satisfied that the level of financial support by the nominator to the visa applicant was as claimed it would not be satisfied that the visa applicant was wholly and substantially dependent on the nominator because of the unreliability of the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, a variable which has to be ascertained before a determination can be made as to whether the visa applicant was wholly and substantially dependent on the nominator.
In that passage, the Tribunal demonstrated that it was aware that whether the nominator was or was not meeting the applicant’s needs was not the essential question for determination. Accordingly, I am unable to conclude that the Tribunal erred by requiring the nominator to show that he was actually meeting the needs of the applicant. This ground is not made out.

Ground 1(e): the nominator’s obligation to meet needs

The applicant’s written submissions on this point are as follows:
[42] The Tribunal considered, apparently following the judgement of the Federal Magistrates Court in Zeng v Minister for Immigration [2005] FMCA 546 (“Zeng”) (setting aside the first decision of the Tribunal in this matter) that it was necessary to establish whether the nominator has an obligation (and the extent of such obligation) to meet the needs of the applicant (Decision Record, para [70], CB 280.8 and Decision Record para [75], CB 282.8). The applicant respectfully submits that this is to import a criterion into the Regulations contrary to their plain meaning, and that, with respect, his Honour in Zeng (CB 127, at [13]) was incorrect to import this as a matter to be considered.
[43] The applicant notes, however, that the Tribunal considered that the nominator did have an obligation to support the applicant (Decision Record para [97], CB 287): while the Tribunal wrongly imported an additional criterion, the applicant accepts that the decision did not turn on this point.
As the applicant has conceded that the decision did not turn on this point, there is no need for me to consider it.

Ground 1(f): hearing behind locked door

The applicant’s written submissions

The applicant’s written submissions on this point were as follows:
[44] Section 365 of the Act requires that the Tribunal take oral evidence in public. It relevantly provides:
“(1)   Subject to this section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public.
(2)     Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private,
(3)     If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private.
(4)     Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given.”
[45] In the hearing conducted by the Tribunal in this matter, however, the door to the hearing room was locked so that people who wished to enter the room had to be admitted by a person inside the room. When witnesses came in it was necessary for the applicant’s solicitor and migration agent to open the door as it was locked (see affidavits to be submitted in support).
[46] The requirements of section 365 are set out in that Division of the Act which states it is an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals. To this extent Parliament has underlined the importance of each and every requirement in the division. The provision of section 365 is mandatory. It is not open to the Tribunal to conduct a hearing in any way other than required by section 365. The provision of section 365 for a public hearing is important as preserving confidence in the Tribunal system. It is analogous to the ordinary rule that court hearings are conducted in public. Breach of this requirement is an important breach of the requirement to procedural fairness by the Tribunal. It is sufficient to have vitiated the conduct of the matter and the decision should be set aside (see Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW [2005] FCAFC 154, [26] per Kiefel J (dissenting) and [29] per Weinberg J (obiter) for consideration, but not determination, of the converse proposition that the Refugee Review Tribunal falls into jurisdictional error if it does not hold its hearings in private, in breach of section 429 of the Act).

The first respondent’s written submissions

The first respondent’s written submissions referred to the affidavits filed by the applicant in support of this ground, and the first respondent’s objections to those affidavits, and then said that the remaining evidence was as follows:
[39] …:
(a)At the Tribunal hearing in relation to the previous decision, which was conducted on 9 October 2003, the applicant’s representative raised a concern that the door to the hearing room was locked. The Tribunal responded to that concern by explaining that the locks needed to be fixed, and the hearing room door was held open with a chair [footnote: Kay affidavit, para 3 and 4];
(b)At the Tribunal hearing on 8 November 2005, the door to the hearing room was locked, in the sense that it could not be opened from the outside, although it could be opened by any person from the inside. [footnote: Kay affidavit, para 5 and 6; Anderson affidavit, para 3-5.]
Otherwise, the first respondent’s written submissions on this point were as follows:
[40] The affidavits do not suggest that any person who sought to enter the hearing was denied entry. They establish only that it was necessary for a person who was inside the hearing room to open the door. That could be done by any person, not only by tribunal officers.
[41] There is no evidence that:
(a)the Tribunal ordered or otherwise required the hearing to be held in private;
(b)any person who wished to enter the hearing was denied access;
(c)there was any sign or other writing that would have discouraged any member of the public from seeking access to the hearing room;
(d)any request was made to the Tribunal to ensure that the door was unlocked (despite the fact that Ms Anderson, the applicant’s representative, was aware that the door was locked).
[42] In effect, this ground of review amounts to an invitation to the Court to find that the Tribunal committed a jurisdictional error because of the effect of a latch on the door to the hearing room.
[43] Paragraph 6 of Ms Anderson’s affidavit states:
Had a member of the public attempted to gain entry to the hearing room while the hearing was taking place, because the door was locked they would have had to knock on the door to request entry I do not know whether this would have been permitted by the presiding member.
No doubt it is true that Ms Anderson does not know what the Tribunal would have done had a member of the public sought entry (which did not occur). Paragraph 6 appears, however, to be an invitation to the Court to infer that entry may have been denied. There is no basis for such an inference.
The hearing was in public
[44] Section 365 of the Act requires Tribunal hearings to take place in ‘public’ (unless there is an order to the contrary by the Tribunal). It is submitted that the facts outlined above do not establish that the hearing on 8 November 2005 was not held in public.
[45] The question is ultimately one of construing the meaning of the words ‘in public’ in s.365. In SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court cautioned against giving an ‘unduly narrow and inflexible’ interpretation to s.429 (the Refugee Review Tribunal’s equivalent to s.365, which unlike Tribunal hearings are required to be held ‘in private’). The High Court said:
Where, as in s.365, the Act requires that evidence be given “in public”, then the requirement is satisfied if, subject to any relevant provisions of the Act, and to the exercise of the Tribunal’s express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present may attend and observe what is going on. [footnote: [2006] HCA 49, [23].]
[46] There is no evidence that any member of the public who wished to be present at the hearing would have been unable to ‘attend and observe what was going on’. Accordingly, the Applicant has not discharged the burden of showing that the hearing took place contrary to the requirements of s.365 of the Act.
[47] The High Court’s comments in SZAYW are consistent with the proposition that a hearing is conducted in public if ‘the public has a right of admission to that court which is reasonably and conveniently exercisable.’ [footnote: [1999] VSC 136, [43].] That formulation is taken from the judgment of Mandie J in Herald and Weekly Times v The Magistrates’ Court. [footnote: [1999] VSC 136, [39].] His Honour’s approach was specifically approved by the Court of Appeal. [footnote: Herald & Weekly Times Ltd v Magistrates’ Court of Victoria (2000) 2 VR 346, [40].] On that approach, the requirement that a hearing be held in public is not absolute, in the sense that any impediment to public access would mean that a public hearing did not occur. On the contrary, applying that test the Court could find that the hearing did not take place in public only if it was affirmatively satisfied that the fact that the door to the hearing room was locked from one side meant that access to the hearing room by the public was not ‘reasonably and conveniently exercisable’. Once again, there is no evidence that would support that conclusion.
[48] In assessing whether the hearing in this case took place in public, some assistance may be derived from Pelling v Bow County Court [footnote: [2001] EWCA Civ 122, [19]], in which the English Court of Appeal considered whether a hearing that took place in a District Judge’s room, to which access could be obtained only through a locked door with the assistance of a member of the court staff, constituted a hearing ‘in public’. The Court of Appeal held that it did. It reached that conclusion even though the evidence in that case was that:
The locked door leading to the District Judge’s rooms on the ground floor does not have a sign on it… Persons unfamiliar with Bow County Court would not be aware that District Judges’ rooms were to be found in the corridor leading from that door. In the foyer of the court are displayed cause lists. Any member of the public wishing to attend a hearing in chambers which is open to the public can ask an usher who will escort them to the room in question. In practice this occurs very rarely, although we are now and then approached by persons studying law or some other profession. There is nothing displayed in writing at Bow County Court which would tend to suggest to members of the public that they were not entitled to attend hearings of small claims cases before District Judges, and no member of the court staff would seek to give that impression. At one time the sign referred to and exhibited [by the applicant] was displayed in various parts of the building.
[49] At first instance, Buxton LJ held that the relevant hearing had taken place in public, stating:
The question for us is whether the arrangement as a whole sufficiently inhibited members of the public from attending court as to make the bearing one in private, rather than in public. I am quite clear on the facts as they now appear that it did not do so, and the hearings to which this ground relates did not take place other than in public.
[50] In agreeing with that reasoning, Laws LJ said:
Before me the applicant cited two authorities, McPherson v McPherson [1935] All ER 105 in the Privy Council and Storer v British Gas [2000] 2 All ER 440. I will not enter into the details of those authorities. It seems to me that in this sort of area each case has to be judged on its facts. There was clearly a substantive reason for having the door locked to the district judge’s room on the ground floor. The reason was to maintain security. It seems to me that Buxton LJ was wholly entitled to conclude as he did, given the material placed before him… [footnote: [2002] EWCA Civ 122, [22].]
[51] The above case demonstrates that whether or not a hearing is held ‘in public’ is very much a question of fact and degree. [footnote: Storer v British Gas Plc [2000] 2 All ER 440, 445.] Impediments to public access far greater than those that existed in this case may still be consistent with the requirements for a ‘public hearing’.
[52] In the circumstances of this case, the Court should conclude that the hearing was held in public because:
(a)There is no evidence that there was any difficulty in the public obtaining access to the area immediately outside the hearing room, meaning that it would have been easy for members of the public to knock on or attempt to open the door to the hearing room in a way that would have alerted those present in the room to the fact that someone wished to obtain access;
(b)There is no evidence that there was any signage in the vicinity of the hearing room that would have caused any member of the public to believe that the hearing was closed to the public;
(c)There is no evidence that any person who actually sought to be present in the hearing room was denied access;
(d)There is no basis for an inference that if a member of the public had sought access that person would have been refused access;
(e)It can be inferred from M Kay’s evidence that the door to the hearing room was locked (from one side only) as a result of a mechanism operation of the lock, rather than a conscious decision by the Tribunal or Tribunal staff.
The effect of failure to object at the hearing to the locked door
[53] Further, even if the hearing was conducted in private in breach of s.365, the Decision should not be set aside on that account. That follows because the applicant has waived any right to rely upon that breach.
[54] It is clear from Ms Anderson’s affidavit that she was aware that the door to the hearing room was locked during the hearing. Despite that awareness, she did not bring the matter to the Tribunal’s attention and give it an opportunity to rectify the problem. It would be contrary to the public interest to allow migration advisers to remain silent while, to their knowledge, proceedings miscarry, thereby allowing them to preserve a point for use in an appeal if an unfavourable decision is made on the merits. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly (in the context of a bias application, but the waiver point is of general application):
a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious, in such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. [footnote: (1989) 167 CLR 568, 572 (emphasis added).]
[55] At the Full Federal Court level in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW, in the analogous context of an asserted breach of s.429 of the Act, Weinberg J adopted reasoning similar to that set out in the above, stating:
Moreover, the first respondent’s failure to object to the course adopted by the RRT, seems to me, in the context of this case, to give rise to the doctrine of waiver. The respondent was represented at the hearing. ... There was no prejudice of any kind in what occurred. It is well established that a person can waive the right to full observance of what is described as “the hearing rule” if that is done voluntarily, and with knowledge of the entitlements waived: Escobar v Spindaleri (1986) 7 NSWLR 51 at 62. The inference that this is what occurred in the present case is one that I would be prepared to draw. [footnote: (2005) 145 FCR 523, [31]. See also Magagnin v Chief Constable of The West Yorkshire Police [2005] UKEAT 0653 04 0903, [15] (in relation to the waiver of a public hearing).]
[56] In dismissing the appeal from the Full Federal Court, the High Court specifically pointed out in its judgment that the appellant and his migration agents ‘raised no objection’ to the presence particular persons during the ‘private’ hearing. That suggests that the High Court accepted that the absence of objection was a relevant fact. [footnote: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49, [28].]
[57] Accordingly, even if the hearing was not conducted in public as required by s.365 of the Act, it is not now open to the applicant to take this point.
Jurisdictional error
[58] Finally, the respondent submits that, even if s.365 was breached, that was not a jurisdictional error. There is no reason to conclude that it was a purpose of the legislation that an act done in breach of that section should be invalid, having regard to ‘the language of the relevant provision and the scope and object of the whole statute’. [footnote: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389-91, [91], [93].]
[59] In SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs, the analogous question whether a breach of s.429 of the Act would involve a jurisdictional error was argued. However, the fact that the Court held that s.429 had not been breached meant that it was unnecessary to consider ‘whether any failure to comply with s.429 involves jurisdictional error’. [footnote: [2006] HCA 49, [30].] The fact that the High Court reserved that point suggests, at the very least, that it considered that there was a real question whether breach of s.429 was a jurisdictional error. That question would be even more acute in relation to s.365, because all sides in SZAYW accepted that s.429 was intended to protect applicants before the RRT (suggesting that compliance with it would be a matter of significance). Section 365 has no equivalent protective purpose.
[60] Notwithstanding the above, the respondent submits that this Court does not need to decide whether a breach of s.365 is a jurisdictional error, because it can dismiss this ground on the basis either that:
(a)there was no breach of s.365 of the Act; or
(b)even if there was a breach of that provision, the applicant waived any right to complain of that breach.

The applicant said in oral submissions that the High Court’s decision in SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 that the obligation under s.424A of the Act being a continuing obligation was analogous to the present case and argued that the Tribunal had a continuing obligation to hold a hearing. The applicant argued that the obligation continued until the Tribunal handed down its decision. The applicant argued that the Tribunal was obliged to reconvene a hearing in appropriate circumstances, such as in the circumstances of this case.
The first respondent said in oral submissions that the Tribunal did not have to hold another hearing in this case because it did not make any adverse finding against the applicant arising from the invitation to comment dated 17 January 2006. Additionally, the first respondent submitted that section 359B of the Act provides that the invitation to comment is to specify the way in which the additional information or the comments may be given, being the way the Tribunal thinks is appropriate in the circumstances. The first respondent submitted that s.359B(2) of the Act authorised the Tribunal to specify that the response was to be given in whatever way the Tribunal saw fit and, in this case, that was in writing.
Additionally, the first respondent relied upon paragraphs [28]-[32] and [61]-[62] of the decision of the Full Court of the Federal Court in Algama v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 253 which are as follows:
[28] Among the complaints made by Mr Win on judicial review of the RRT's decision affirming the decision under review by it was that the RRT had not again invited him to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review by it. Mr Win submitted that the new s 425 of the Act had required the RRT to give him such an invitation, since the information contained in the dob-in letter had raised an issue in relation to the decision under review relating to which he had not formerly been given an invitation by the RRT to give evidence and present arguments.
[29] In unanimous reasons for judgment, the Full Court rejected that submission. It said(at 218-219 [24]-[29]):
[24] The appellant had been invited by the RRT on 14 October 1999 to attend the hearing that took place on 12 November 1999. That invitation satisfied the requirements of s 425(1) of the Migration Act: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 ; 164 ALR 339 ; 59 ALD 597 at FCR 331 per Sackville J; De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 367–8.
[25]   The appellant contended that the RRT was obliged to give him a further opportunity to appear to give evidence. According to Ms Winfield [that is, counsel for Mr Win], the dob-in letter raised fresh issues that had not been addressed at the hearing held on 12 November 1999. It followed, so it was argued, that the appellant had not been given an adequate opportunity to give evidence “relating to the issues arising in relation to the decision under review”.
[26] This submission overlooks the fact that Div 4 of Pt 7 of the Migration Act sets out detailed procedures to be followed where the RRT, as in this case, has information that it considers would be the reason or part of the reason for affirming the decision under review. Section 424A(1)(c) obliges the RRT to invite the applicant to comment on the information. Section 424B(1)(b) provides that any such invitation must “specify the way in which the … comments may be given, being the way [the RRT] considers is appropriate in the circumstances.” Section 424[B](2) makes it clear that the invitation to make comments may specify a means of commenting otherwise than at an interview. Where the invitation does so, the comments are to be given within the period specified in the invitation. There is nothing to indicate that the statutory procedures do not apply to information received by the RRT after it has held a hearing.
[27]   In the present case, the RRT determined that it was appropriate for the appellant to provide written comments on the dob-in letter. Accordingly, the RRT's letter of 29 November invited the appellant to comment in writing within 21 days. The RRT therefore followed the relevant statutory procedures. Those procedures did not contemplate that the appellant would be entitled to attend a further hearing.
[28] In our view, the detailed statutory procedure set out in Div 4 of Pt 7 tells against the submission that the receipt of the dob-in letter imposed a fresh obligation on the RRT to provide a hearing in accordance with s 425(1). In any event, we do not accept that the dob-in letter raised new issues beyond those canvassed at the hearing of 12 November 1999. The first two claims in the dob-in letter concerned factual questions at the heart of the appellant's case. The last two (not ultimately relied on by the RRT) went to the appellant's credibility. It is clear from the RRT's reasons that the appellant's credibility was very much in issue at the hearing before the RRT.
[29]   This contention must be rejected.
[30] The primary judge in the present matters dealt as follows with what the Full Court had said in Win (at [84] and [89]):
[84] I take the Full Court to have rejected the applicant's [sic] contention for two alternative reasons, namely, first, that the structure of the Act does not envisage more than one invitation under s 425(1) and, second, that the “dob-in” letter did not raise any issues which had not been canvassed at the hearing. On this analysis both foundations of the decision are binding authority on a single judge. The first reason is decisive of the issue in the present case. Having received one invitation to appear the applicants were not entitled to a further invitation under s 425(1).
…
[89] … [T]he decision in Win … binds me to hold that there was no breach of s 425(1) in the respect alleged.
[31] As well as their two submissions before the primary judge to which we have already referred above, the Algamas made one further submission before the primary judge which should also be mentioned for present purposes. The primary judge characterised that submission as having been one that there existed a “general principle” implicit in the Act which applied to the new s 425 of the Act. That “general principle” was said to have entitled the Algamas to a further appearance before the RRT on the basis that otherwise they would have been denied a “genuine opportunity” to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That general principle was said to have found its source in a statement made by Sackville J in his concurring reasons for judgment in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at 331 [66]; 164 ALR 339 at 354; 59 ALD 397 at 412 (Tamberlin, Sackville and Katz JJ), which statement was afterwards adopted in Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264; BC200000868 at [9] and in De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 367–8 [9] (Hill, Carr and Sundberg JJ).
[32] The primary judge dealt as follows with that submission (at [68]-[70]):
[68]   … [T]he passage relied upon by the applicants from the judgment of Sackville J in Cho, which related to s 425(1)(a) [that is, the pre-1 June 1999 version of s 425 of the Act], and was approved in Mohammad [sic] and adopted in relation to s 425(1) [that is, the post-1 June 1999 version of s 425 of the Act] in De Silva, did not establish a principle that the section conferred a right on the applicants to a “genuine opportunity” to appear and give evidence before the tribunal. Rather, the passages were concerned to emphasise certain limits on the rights of applicants appearing before the tribunal.
[69]   … [Section] 425(1) was inserted by Parliament with the intention of limiting the rights of applicants to the receipt of an invitation to appear and give evidence, and to make it clear that the obligation on the tribunal was confined to extending such an invitation, and did not extend to providing applicants with a genuine opportunity to be heard.
[70] Thus, the applicants['] claim that under s 425(1) they were entitled to a “genuine opportunity” to appear must fail.
…
[61] In that connection, it is worthy of note that Mr Win sought from the High Court special leave to appeal from the Full Court's judgment in Win. A copy of Mr Win's application in that respect was served on the Federal Court in accordance with O 69A r 4(2) of the High Court Rules 1952. That copy discloses that the application included as a ground on which special leave to appeal was being sought, as one would have expected, that the Full Court had erred in holding that the receipt by the RRT of the dob-in letter had not imposed on the RRT under the new s 425(1) of the Act a fresh obligation to invite Mr Win to appear before it. Mr Win's application for special leave to appeal was unanimously dismissed by McHugh, Kirby and Callinan JJ on 16 October 2001, some months after the primary judge had given judgment in the present matters. On the hearing of the present appeals, the Algamas provided this court with a transcript of the oral hearing of Mr Win's application for special leave to appeal, from which one discovers that Mr Win did not appear at that hearing. When Mr Win's non-appearance became known, McHugh J then said on behalf of the court:
The court is in a position to give judgment in this matter.
The court is of opinion that the decision of the Full Court of the Federal Court is plainly right. An appeal would have no prospects of success.
The application is dismissed with costs. [emphasis added]
Before this court, the Algamas conceded in oral argument, referring to what had been said by the High Court in dismissing Mr Win's application for special leave to appeal, “clearly it is a strong statement by three High Court judges in support of the case of Win”. That statement by the Algamas was an accurate one.
[62] Of course, the High Court's reasons for dismissing the application for special leave to appeal did not create a precedent binding on this court: see, for example, North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595 at 643 ; 135 ALR 225 at 258 (McHugh J). However, those reasons provided “guidance” to this court: see Bird v Colonial Spark Plugs Pty Ltd (1942) 66 CLR 43 at 47 (Starke J); they amounted to “dicta”: Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 at 368 (Jordan CJ; Davidson and Street JJ concurring (at 370)); they had “persuasive value”: see Sir Anthony Mason, “The Use and Abuse of Precedent”, (1988) 4 Australian Bar Review 93 at 97. To say the least of it, those reasons of the High Court would make it difficult for this court to conclude that the Full Court's construction in Win of the new s 425(1) of the Act had been wrong, let alone that it had been plainly or patently wrong or had produced unintended and perhaps irrational consequences not foreseen by the Full Court when construing the new s 425(1) of the Act.
The first respondent also referred to the decision of the Full Court of the Federal Court in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383 at paragraph [9] where Drummond, North and Dowsett JJ said that Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 and Algama:
…establish that the receipt of further information by that Tribunal after a hearing will not necessitate a further hearing. It is for the Refugee Review Tribunal to determine the manner in which a particular applicant should be invited to make any relevant comments.
In reply, the applicant argued that Win concerned a dob-in letter which is a classic example of information of the sort that the mechanism of s.359A of the Act is designed to address and a written response is sufficient. The present case was different, in the applicant’s submission, because it concerned a credibility issue that arose at the hearing.
In SAAP, a majority of the High Court said that the obligation under s.424A of the Act was a continuing obligation. The High Court did not say that the obligation to invite a person to an oral hearing was a continuing obligation. I do not consider that SAAP implicitly overruled Win and the cases which have followed it.
I do not accept that the point of distinction raised by the applicant in relation to Win is a good one. The reasoning of the Full Federal Court does not depend on the information in issue being in the form of a dob-in letter and does not depend on the information being obtained by the Tribunal in any particular way or at any particular time. The reasons given by the Full Federal Court in Win apply equally in the present case. Win has been upheld by two differently constituted Full Federal Courts and I am bound by all of those decisions. Accordingly, I conclude that there was no obligation on the Tribunal to conduct a further oral hearing in this matter. This ground is not made out.
Regarding the first respondent’s argument on the facts in relation to this matter, I note that the Tribunal said in paragraph 89 that it made no adverse finding against the visa applicant in relation to her agent’s submission of 18 June 2003, but otherwise did make adverse findings about matters that were dealt with in the s.359A letter dated 17 January 2006.

Ground 2: procedural fairness

The applicant’s written submissions on this ground were as follows:
[50] The Tribunal still had concerns about the credit of the applicant as a witness concerning her own financial affairs after receiving material in answer to letters sent by the Tribunal after the hearing of the matter. In such a situation, where the credit of the applicant was critical to the application, the Tribunal is obliged further to give the applicant an opportunity to address their concerns at a further oral hearing (see, e.g. Kioa v West (1985) 159 CLR 550). The applicant refers to and repeats the submissions made above in relation to the obligation of the Tribunal to accord a further oral hearing.
I do not accept those contentions. The statutory scheme authorised the Tribunal to alert the applicant to its concerns about her credibility in writing and to invite a response in writing. It did so. There is no denial of procedural fairness in the Tribunal acting in accordance with the statutory scheme.

Ground 3: relevant considerations

(a) independent evidence

The applicant’s written submissions on this ground were as follows:
[51] The Tribunal said, as noted above (at para [78] of the Decision Record, CB 283.7)) that,
“The Tribunal accepts that the visa applicant’s expenses may have been in the order outlined… The Tribunal is unable to be certain of this, however, as … the Tribunal is not satisfied that the visa applicant was a reliable witness in relation to financial details.”
[52] The Tribunal had before it also evidence independent of the applicant of living expenses in China. If the Tribunal was “unable to be certain” of the claimed expenses because it was not satisfied that the applicant was a reliable witness, then this indicates that the Tribunal failed to have regard to this independent evidence. This is not a complaint about a mere matter of weight but a failure to have regard entirely to matters that were material to the application.
The first respondent’s written submissions on this ground were as follows:
[73] This submission [by the applicant] should be rejected. The Tribunal clearly did consider the relevant matters, as it discussed them it [sic] is reasons. [CB286.9] This ground is no more than an attack upon the weight that the Tribunal gave to this material. [footnote: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.] As the Full Federal Court said in SFGB v Minister of Immigration & Multicultural & Indigenous Affairs:
if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a `jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact … It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a `bright line', but it is nevertheless an essential one … [footnote: [2003] FCAFC 231, [20].]
[74]Finally in relation to this ground, the respondent refers to and repeats the submissions advanced above in paragraph 27.
In oral submissions, the applicant said that the Tribunal had failed to have regard to the independent evidence specified at [14] of the applicant’s written contentions. That evidence consisted of the transcript of oral evidence given before the Tribunal by the applicant, the nominator and Mr Kay, the statutory declarations made by friends of the nominator, submissions from the applicant’s agent and documentary evidence, including copy gas bills and the like, relating to the support of the applicant by the nominator after her arrival in Australia.
The applicant also submitted that the fact that the Tribunal had not rejected the evidence of the witnesses, and the absence of a finding that they were dishonest or untruthful, were indications that the Tribunal had not had regard to the evidence of those witnesses.
The Tribunal noted the applicant’s claims that, since her arrival in Australia, she had been supported by the nominator. It is implicit in the Tribunal’s reasons for decision that it accepted that claim. Accordingly, there was no need for the Tribunal to expressly consider the evidence that supported it. The Tribunal clearly did consider the other evidence mentioned by the applicant in connection with this ground. The evidence was summarised in the Tribunal’s reasons and dealt with under the heading “Discussion and Findings”. It was for the Tribunal to give such weight to that evidence as it saw fit: SFGB v Minister for Immigration & Multicultural & indigenous Affairs [2003] FCAFC 231. This ground is not made out. (It is also stretching matters to say that the evidence was independent. The evidence the applicant says was disregarded was evidence from the applicant, the nominator, his friends and the applicant’s agent.)

Ground 3(b): “cogent, independent evidence”

The applicant’s written submissions on this ground were as follows:
[53]Further or in the alternative, the Tribunal stated that “It does not accept that it should make positive findings in the absence of cogent independent evidence” (Decision Record para [95], CB 287.3). The Tribunal had before it evidence of witnesses other than the applicant or the nominator corroborating a number of the payments the nominator claimed to have made to the applicant. In the absence of a finding that the nominator and these witnesses were not truthful witnesses the Tribunal did have “cogent and independent evidence” and ought to have had regard to it.
The first respondent’s written submissions on this ground were as stated in relation to ground 3(a). The oral submissions for each party were as outlined elsewhere in these reasons.
In my view, it was a matter for the Tribunal to decide whether the evidence before it was cogent and independent. The Tribunal was apparently of the view that the friends of the nominator who said that he had delivered funds to the applicant in China were not independent or the evidence relied upon by the applicant was not cogent. The Tribunal was entitled to assess the evidence before it and find it unpersuasive: SFGB. This ground is not made out.

Ground 3(c): evidence of later support

The applicant’s written submissions on this ground were as follows:
[54] The Tribunal noted that it was entitled to have regard to later events in determining the situation at the time of the application for the visa. It follows that also relevant to the determination of whether the applicant was an aged dependent relative of the nominator at the time of application for the visa was the consistent pattern of later support of the applicant by the nominator since her arrival in Australia. This was evidence which could have founded a favourable inference concerning the earlier claimed dependence and support and thus a conclusion that the applicant satisfied the Regulations.
[55] In Scott’s case [actually, Graovac], noted above, Branson and Hely JJ agreed (at [13]-[14]):
14 The issue of substantial dependency is to be determined at the time of decision, but the enquiry is as to the state of affairs subsisting at that point in time which may involve consideration of earlier events, and of future probabilities. In Aafjes v Kearney (1976) 50 ALJR 454, 458 Gibbs J said that the question of whether there is dependence at a particular date is not to be answered by looking only to the circumstances as they existed at that date; past events and future probabilities have to be considered.
The first respondent’s written submissions on this ground were as stated in relation to ground 3(a). In oral submissions, the applicant argued that the Tribunal had not had regard to the evidence of the support of the applicant by the nominator in Australia and argued that the evidence of the nominator’s more recent support tended to confirm that he had looked after the applicant earlier.
The evidence in this case was to the effect that, since the applicant’s arrival in Australia, the nominator had totally supported her. It is implicit in the Tribunal’s decision that it accepted that evidence. Accordingly, it appears that the Tribunal took into account the nominator’s later support of the applicant but did not consider it to be a matter of such significance that mention needed to be made of it.
In any event, the Tribunal said at [75] that:
In Graovac the Court held, in the circumstances of that case, it was appropriate to take a longer term view. This case is, however distinguishable from Graovac. The visa applicant’s pension [is] not analogous to the temporary charity provided in the refugee centre in Graovac. There is no abnormal suspension of the economic relations between the claimed supporter (the nominator) and the visa applicant in the relevant period between December 1996 and December 1999 to warrant departure from the quantitative mathematical approach to the notion of predominance.
The relevant period for the consideration of dependence in this case was a reasonable period before the application was lodged on

7 December 1999. The applicant arrived in Australia for the last time on 13 November 1999. The Tribunal treated the reasonable period as being December 1996 to December 1999. There was no challenge to that being the relevant period, except that it is now said that the Tribunal should also have taken account of the period since the applicant arrived in Australia to shed light on the earlier period.
In Graovac, the visa under consideration was a supported dependant visa. The question for determination was whether the applicant was wholly or substantially dependent on another person for financial, psychological or physical support at the time of decision. The applicants in that case were living in a refugee camp which provided for their basic needs. Previously, the nominator had contributed to their support. There does not appear to have been any requirement for the dependence to have existed for a reasonable period prior to the decision, or for any other period. The decisions at first instance and on appeal appear to indicate that the regulations required only that the dependence existed at the time of decision.
In that context, the Full Federal Court held that the delegate should have taken a longer term view than he had, and adopted a statement from Gibbs J in Aafjes v Kearney (1976) 50 ALJR 454, 458 to the effect that ascertaining whether there was dependence at a particular date required an examination of past events and future probabilities. The decision in Aafjes arose under worker’s compensation legislation and concerned the question of whether the daughter of a man who was killed at work was dependent on him at the date of his death.
The present statutory scheme is different. It requires the dependence to have existed for a reasonable period prior to the application being lodged. For this reason, in my view, Graovac and Aafjes, to the extent that they might require the Tribunal to consider future probabilities, are distinguishable.
Moreover, there does not appear to me to be anything express or implied in the applicable regulations in this case that demands consideration of the situation after the date of application for determination of dependence in a reasonable period prior to the date of application. That being so, it was a matter for the Tribunal to decide whether to consider later support and, if so, what weight to give to it.
In the present case, the Tribunal was clearly aware of the later support but apparently did not consider that it shed any significant light on whether there had been earlier support. At most, in my view, the later support showed that the nominator was willing to support the applicant if and when that support became necessary or desirable and if the nominator had the means to assist. However, that willingness after the arrival of the applicant in Australia in December 1999 did not provide more than the vaguest corroboration of the level of support provided in the earlier period.
More fundamentally, the conclusion of the Tribunal at [96] of its reasons for decision was that:
Even if the Tribunal were satisfied that the level of financial support by the nominator to the visa applicant was as claimed it would not be satisfied that the visa applicant was wholly and substantially dependent on the nominator because of the unreliability of the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, a variable which has to be ascertained before a determination can be made as to whether the visa applicant was wholly and substantially dependent on the nominator.
In other words, even if the Tribunal had accepted all that the applicant had said about the level of support provided by the nominator to the applicant, it would have made no difference to the decision, because the Tribunal was not satisfied that the applicant was not meeting her basic needs for food, clothing and shelter from her own resources for a reasonable period prior to the date of application. This ground is not made out.

Ground 4: whether decision open on the evidence

The applicant’s written submissions on this ground are as follows:
[56] Further or in the alternative, the decision was not open to the Tribunal.
[57] The Tribunal said that:
“…Even if the Tribunal were satisfied that the level of financial support by the nominator to the visa applicant was as claimed it would not be satisfied that the visa applicant was wholly and (sic) substantially dependent on the nominator because of the unreliability of the evidence in relation to the extent to which the visa applicant’s needs were being met from her own resources, a variable which has to be ascertained before a determination can be made as to whether the visa applicant was wholly and substantially dependent on the nominator.” (CB 287.5)
[58] Even if the Tribunal was not satisfied as to the precise amount of the applicant’s resources, there was no evidence before the Tribunal from which it could have concluded that, if it accepted the amounts claimed to have been given by the nominator to the applicant from about December 1996 to about May 1999 ($10,000 plus three return airfares, CB 49), the applicant had her own sources of income greater than this amount in this period.
[59] The evidence which the Tribunal was apparently prepared to accept, and did not in its reasons contradict, was that 475 RMB was probably the highest level of her monthly pension before she left China in 1999. At the rate of exchange considered at the hearing as between 5 and 6 RMB for AUD $1 (SCB 52.31) the nominator’s support amounted to between $50,000 and $60,000 RMB from December 1996 to May 1999, a period of about 30 months. Therefore the nominator’s support as claimed was between about 1600 and 2000 RMB per month. There was absolutely no evidence from which the Tribunal could possibly have concluded that the applicant had income of her own to this extent. Even if the applicant was not considered as a particularly reliable witness in financial affairs, she must still have been “wholly or substantially” reliant upon the nominator, as there was no evidence from which the Tribunal could have concluded that during the period leading up to the time of application for the visa the applicant had her own income amounting to over AUD$10,000.
The first respondent’s written submissions on this ground were as follows:
[75] The applicant submits that the Tribunal’s decision was not open on the evidence. [footnote: Applicant’s contentions, paras 56-59.] This ground involves an attack on the Tribunal’s observation that even if it had been satisfied that the level of the financial support provided by the nominator to the applicant was as claimed, the Tribunal nevertheless would not have been satisfied that the applicant was wholly or substantially dependent on the nominator.
[76] The Tribunal reasoned that, because of the unreliability of the evidence concerning the extent to which the applicant’s needs were being met from her own income, it could not have assessed whether the applicant was wholly and substantially (i.e. predominantly) dependent upon the nominator, irrespective of the amount of money that he had sent to her.
[77] The Tribunal’s reasoning process in this respect is sound.
[78] The applicant contends that, if the nominator provided more funds to the applicant than were available to her from other sources, then it inevitably follows that she was wholly or substantially dependent upon him. Thus, in the absence of any evidence that the applicant had income available to her that exceeded the amount said to have been provided by the nominator, the applicant claims that it follows that the Tribunal had no evidence to support its conclusion. [footnote: Applicant’s contentions, para 59.]
[79] That analysis fails to consider a crucial issue. Regulation 1.05A focuses upon the capacity of a person to meet his or her basic needs, not just upon the resources that are available to that person. For example, if a third party benefactor had given $1 million to the applicant, it would not follow that she was wholly and substantially dependent upon that benefactor. Indeed, if the applicant’s own resources were adequate to meet her ‘basic needs for food, clothing and shelter’ (the words of reg 1.05A), she would not be at all dependent upon the benefactor, notwithstanding the large amount of money that he or she had provided, and irrespective of the fact that her other sources of income were far smaller than the gift.
[80] It therefore does not follow that, simply because the Tribunal did not have evidence of any sources of income that exceed those provided to the applicant by the nominator, it had not [sic] evidence to support its Decision. Once it was not satisfied by the evidence was [sic] before it in relation to the total costs of living of the applicant in her home town in China, the existence of any source of income other than the nominator meant that it could not be satisfied that these alternative sources of income were not sufficient to meet the applicant’s basic needs.
In oral submissions, the applicant said that the Tribunal had applied the test of wholly and substantially reliant and had accepted that the applicant’s expenses may have been in the order she had claimed. In the circumstances, the applicant argued that the Tribunal could not have concluded as it did without clearly rejecting the evidence of the applicant’s other witnesses which the Tribunal had not done.
I accept the first respondent’s submissions on this matter, for the reasons he gives. Additionally, it is open to the Tribunal to give evidence such weight as it sees fit whether or not it has rebutting evidence. As long as there is some evidence on which the decision is based, the decision will be supportable. The applicant does not allege that there was no evidence on which the decision was based. In fact, there was such evidence, for example, the information referred to in the s.359A letter dated 8 December 2003 to the effect that the minimal cost of living in Guangzhou at that time was 300 to 360 RMB per month. It appears to be common ground that the applicant was in receipt of a pension at an earlier time of 475 RMB per month. That evidence in combination suggests that the applicant was at relevant times able to meet her basic needs for food, clothing and shelter from her own resources. Additionally, there was the evidence which suggested to the Tribunal that the applicant was not a reliable witness in relation to financial matters. This ground is not made out.

Ground 5: failure to make findings

The applicant’s written submissions on this ground were as follows:
[60] Further or in the alternative, the Tribunal was obliged to consider and to determine the substantive issues raised on the material and evidence before it (Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, 63-64 per Merkel J).
[61] In order to determine whether the applicant was wholly or substantially reliant on the nominator at the time of her application for the visa, the Tribunal was required, pursuant to Regulation 1.03 and 1.05A, to make findings concerning the applicant’s expenses, the amount of the applicant’s income from her pension in China and the amount of the nominator’s financial contribution to her support at the time she applied for the visa, and for a substantial period immediately before that time. The Tribunal failed to make these findings.
[62] The Tribunal said concerning the applicant’s expenses that it:
“…accepts the visa applicant’s expenses in the period between December 1996 and December 1999 may have been in the order outlined in the tables at paragraph 26 [of the Tribunal’s “Reasons for Decision”; presumably intended to be a reference to paragraphs 34-36, CB 265.5-267.2]. The Tribunal is unable to be certain of this, however…”
[63] If this is not a finding in the applicant’s favour, it does not amount to a finding of the amount of the applicant’s expenses, a matter necessary to be determined in order to assess the application against Regulation 1.05A.
[64] The Tribunal did not make any adverse finding concerning written submissions made about the level of the pension in China. If this was not a finding in the applicant’s favour, it did not amount to a finding of the amount of the applicant’s pension prior to her application for the visa, also, a matter necessary to be determined in order to assess the application against Regulation 1.05A.
[65] Finally, the Tribunal made no clear finding concerning the amount of financial support by the nominator to the applicant. This also was a matter necessary to be determined in order to assess the application against Regulation 1.05A.
[66] The Tribunal thus failed to make findings essential to the determination of the questions before the Tribunal.
The first respondent’s written submissions on this ground were as follows:
[81] Finally, the applicant asserts that the Tribunal made a jurisdictional error because it failed to make findings concerning the applicant’s expenses, the amount of her income, and the amount of the nominator’s financial contribution to her support. [footnote: Applicant’s contentions, para 61.]
[82] That submission misconceives the relevant statutory scheme. The many Full Federal Court authorities discussed above in relation to the applicant’s ‘burden of proof’ ground demonstrate that the Tribunal was under no obligation to make findings in relation to the matters identified by the applicant. Instead, if the evidence before the Tribunal did not satisfy it in relation to the relevant matters, s65 of the Act required the Tribunal to refuse to grant the visa notwithstanding that it was not in a position to make a finding as to what the relevant facts actually were.
In view of the passage of VSAF set out at paragraph 43 above, I accept the first respondent’s written submissions on this ground.

Conclusion

In the circumstances, the application must be dismissed with costs.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Melissa Gangemi

Date: 1 March 2007