Zhu v Minister for Immigration

Case •

[2012] FMCA 1195

•

19 December 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHU v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1195
MIGRATION – Review of decision of the Migration Review Tribunal – allegation that the Tribunal failed to comply with s.359A – allegation that the Tribunal failed to consider all integers of the applicant’s claims – allegation that the Tribunal’s decision was illogical or irrational – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss. 359AA, 359A, 360, 424A, 476
Migration Regulations 1994 (Cth), r.1.15A, Sch.2
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679
WAGP of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276
SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Berenguel v Minister for Immigration & Citizenship [2010] HCA 8
Re: Barbara June Bretag v Immigration Review Tribunal & Minister for Immigration Local Government & Ethnic Affairs [1991] FCA 582
Re: Minister for Immigration Local Government & Ethnic Affairs v Gambur Singh Dillon & Mareelle Suzanne Maree Lievense Dhillon [1990] FCA 144
R v Chaill 1780 Z NSWLR 453
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Applicant: JIAN LIANG ZHU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 2944 of 2011
Judgment of: Nicholls FM
Hearing date: 25 September 2012
Date of Last Submission: 25 September 2012
Delivered at: Sydney
Delivered on: 19 December 2012

REPRESENTATION

Appearing for the Applicant: Mr R Turner
Solicitors for the Applicant: Turner Coulson Immigration Lawyers
Appearing for the Respondents: Mr M Alderton
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 21 December 2011, amended on 15 January 2012 and further orally amended on 25 September 2012, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2944 of 2011

JIAN LIANG ZHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 21 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 25 January 2012 and further amended orally in Court on 25 September 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 December 2011, which affirmed the decision of the delegate of the Minister to refuse a partner (provisional) visa to the applicant’s wife (“the visa applicant”).

Background

  1. The applicant was originally a citizen of the People’s Republic of China (“China”), but became an Australian citizen on 22 November 2007 (Court Book – “CB” – CB 97.6). The visa applicant is a citizen of China (CB 97.5).

  2. It was claimed that the applicant and the visa applicant met on 26 February 2007 and began a relationship eight days later (CB 97.7). On 25 May 2007 they married in China (CB 97.7).

  3. On 15 June 2007, the applicant submitted a “Form 47SP” – Application for migration to Australia by a partner, and a “Form 40SP” – Sponsorship for a partner to migrate to Australia for a spouse (provisional visa) with the Australian Consulate General Shanghai. The visa applicant’s daughter was also included in the applications. Supporting documentation was included with the applications (CB 1 to CB 66 and CB 67).

The Delegate

  1. On 15 May 2008, the delegate of the Minister decided to refuse the grant of a spouse (provisional) visa to the visa applicant. The visa applicant was notified of this decision by letter. That letter informed her that if she wished to pursue a review of the decision, an application would need to be made to the Tribunal in Australia by the applicant.

  2. Although it was accepted that there was some familial and social recognition of the relationship between the applicant and visa applicant, the delegate held concerns about the “… genuine and ongoing nature of this relationship” (CB 99.7). Consequently the delegate was not satisfied that the visa applicant met the legal requirements of cl.309.211 and cl.309.221 of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 103.7).

The Tribunal as Previously Constituted

  1. On 25 July 2008, the applicant, visa applicant and her daughter, applied to the Tribunal for review of the delegate’s decision (CB 104 to CB 110). Supporting documentation was provided with that application (CB 111 to CB 140). On 29 July 2008, the applicant filed an “amended application” for review by the Tribunal in which only he was named as an applicant in the review (CB 141 to CB 148).

  2. By letters dated 5 March 2009 and 18 July 2009, the applicant provided further information and material in support of his review application (CB 150 to CB 155 and CB 158 to CB 166).

  3. The applicant attended a hearing before the Tribunal, as previously constituted, on 20 October 2009 (CB 170 and CB 184).

  4. Following that hearing, by letter dated 8 November 2010, the applicant was invited to comment on, or respond to, certain information (CB 211 to CB 213). That letter included information provided by “a third party” who had contacted the Minister’s Department in December 2007. That information was summarised as being (CB 212.8 to CB 213.3):

    “1. You sponsored a spouse application for a woman from Dandong city in June 2007.

    2. This woman placed an advertisement in an Australian newspaper in early 2007 to look for a husband. In the advertisement she claimed to be a wealthy businesswoman who wanted to go abroad to get her 18 year old daughter overseas. The advertisement stated that marriage for convenience was okay. Both parties contacted each other and made a deal and within one month both had agreed on a contrived marriage.

    3. You were paid by the woman to travel to China in February 2007 to meet the woman in Shanghai. You returned to Australia in March 2007 and travelled back to China in May 2007 to register the marriage, to hold the wedding banquet and prepare all supporting documents.

    4. You are said to be a heavy gambler, have significant gambling debts and told your friends in Sydney that you had found ‘gold’. You were paid a proportion of the fee in late November or early December 2007.

    5. Three years ago you also sponsored a women from Shenyang City through a contrived marriage arrangement however, her visa application was refused because the departmental officer was not satisfied there was a genuine marriage.”

  5. That information was said to be relevant to the review as (at CB 213.4):

    “… it indicates that the third party is aware of the circumstances of the claimed relationship and marriage and has provided accurate information on dates, places and sequence of events. If the rest of the information is correct it suggests that you and the visa applicant have contrived a relationship and marriage to achieve a migration outcome for the visa applicant.”

  6. The applicant responded to that invitation by letter dated 28 November 2010 (CB 216 to CB 223).

  7. The Tribunal, as previously constituted, ultimately affirmed the decision of the Minister’s delegate to refuse the grant of a visa to the visa applicant. The applicant sought judicial review of that decision and, by consent, the matter was remitted to the Tribunal for reconsideration (Supplementary Court Book – “SCB” – SCB 1).

  8. It is important to note that the decision of the earlier constituted Tribunal, and the consent orders remitting the matter, were not included in the Court Book that was filed by the Minister. At the final hearing, the Minister sought leave to file in Court a copy of the consent orders remitting that Tribunal’s decision. Leave was granted (with no objection) and that document was marked as a Supplementary Court Book (“SCB”).

  9. Following the hearing, and in the process of drafting the judgment, I was advised that the Tribunal Member, of the Tribunal as formerly constituted, was my wife. (That decision record was not included in the Court Book and correspondence from the Tribunal to the applicants was signed by a Tribunal officer.) The applicant and first respondent’s solicitors were notified of that fact. Submissions were sought from the parties as to whether they wished for the matter to be transferred to the docket of, and heard again by, another Federal Magistrate.

  10. Both the applicant and first respondent indicated that they were of the view that, as the application for consideration before the Court did not rely on the decision, as such, of the Tribunal as previously constituted, the matter ought to remain in my docket and be determined by me. Particularly in circumstances where a final hearing had already occurred and costs had been incurred by both parties up to, and including, appearing at the final hearing.

  11. In those circumstances, I have proceeded to determine the application before the Court.

The “Current” Tribunal

  1. On 12 October 2011, the applicant was advised that his application for review had been “re-allocated to a Member of the Tribunal” (CB 230 to CB 231). By letter dated 23 October 2011, the applicant made submissions and provided documents in support of his review application (CB 234 to CB 259).

  2. By letter dated 4 November 2011, the applicant was invited to a hearing before the Tribunal scheduled for 28 November 2011 (CB 260 to CB 261). The applicant and the visa applicant attended on that occasion and were assisted by an interpreter in the Mandarin language (CB 264 to CB 265).

  3. Further documents were provided by the applicant at the hearing (CB 267 to CB 271). In addition, following the hearing and by letter dated 20 November 2011, the applicant made further submissions to the Tribunal (CB 272).

  4. On 5 December 2011, the Tribunal decided to affirm the delegate’s decision to refuse the grant of a visa to the visa applicant (CB 274). The applicant was notified of the Tribunal’s decision by letter dated 5 December 2011 (CB 273).

  5. The Tribunal found that it was not satisfied “… that the visa applicant is and was at the time of application the spouse of the review applicant” within the meaning of reg.1.15A of the Regulations ([26] at CB 279).

  6. The Tribunal was satisfied that the applicant and the visa applicant were married to each other and that that was a valid marriage for the purposes of the Act ([27] at CB 279). Further, the Tribunal acknowledged that there was “... a substantial amount of documentary and oral evidence which points to the existence of a genuine and committed spousal relationship” ([45] at CB 283). However, ultimately, the Tribunal was not satisfied that they were in a “married relationship” for the purpose of the Act ([28] at CB 279 and [45] at CB 283). That finding was made because of, variously and including, concerns the Tribunal had about financial aspects of the relationship ([30] – [32] at CB 280), that the parties did not have joint responsibility for the care and support of children ([34] at CB 281), the applicant’s “indifference” about the visa applicant’s business in China ([38] at CB 281) and the “… very brief inception of the relationship” ([41] at CB 282). Further, the Tribunal found that the “… quick inception of the relationship and the financial aspects of the relationship” supported the information contained in the anonymous allegation received by the Department ([43] at CB 281). On that basis, the Tribunal placed weight on the information in the anonymous allegation ([44] at CB 283).

Before the Court

  1. At the final hearing, Mr R Turner appeared for the applicant. Mr M Alderton appeared for the first respondent.

Application to this Court

  1. The grounds of the amended application are as follows:

    “1. The Tribunal failed to carry out its statutory duty.

    Particulars

    a. The Tribunal failed to comply with the Migration Act1958 s. 359A

    - the Tribunal relied upon the anonymous allegation made in 2007 and the couples interview with the Department of Immigration and Citizenship

    - such information was adverse to the Applicant and the Tribunal failed to advise him of that information, explain why it was relevant and give him an opportunity to respond to it

    b. The Tribunal failed to advise the Applicant of all the issues which were relevant to his application for review

    c. The Tribunal failed to consider all integers of the Applicants claim

    (i) the Tribunal failed to consider whether the Applicant’s marriage was genuine, notwithstanding that, at the outset, it had been confirmed to obtain a visa outcome

    2. The Tribunal’s decision was irrational and/or illogical.

    Particulars

    a. The Tribunal found that the couple

    (i) had lived together in China

    (ii) had shared the housework

    (iii) represented themselves in public as a couple

    (iv) had been married for a number of years

    (v) had frequent telephone contact

    but based the affirmation of the decision on the untested anonymous application in 2007.

    b. It is irrational and illogical to base a decision on an untested anonymous application made 4 years prior when there is a substantial amount of evidence indicating that the relationship is genuine at the current time.

    c. The Tribunal was concerned as to ‘how they were able to form a commitment to marriage in only three months’ and ‘… none of the offered reasons explain why the couple would not wish to spend more time to get to know each other before making the commitment to marriage’.

    Further, at para 43

    ‘The Tribunal finds that these two matters in particular – the quick inception of the marriage… - support the information contained in the allegation.

    The Tribunal is concerned that the quick inception of the relationship reflects the fact that it is merely an arrangement between the visa applicant and the review applicant and not a genuine and committed relationship.’”

    [Emphasis in original.]

  2. Before the Court, at various points during the hearing, the applicant sought leave to further amend, orally, the grounds of the amended application. In particular that:

    a)Particular “(a)” to ground one be amended to add a reference to s.359AA of the Act.

    b)Particular “(b)” to ground one was not pressed.

    c)Particular “(c)” to ground one be amended to allege a breach of s.360 of the Act in that the Tribunal failed to consider integers of the applicant’s claim. Further that the complaint be amended and considered as a separate ground of the further amended application (referred to subsequently as “ground three”).

    d)An additional complaint be added to ground one (referred to subsequently as “particular ‘(d)’” to ground one). That is, that the visa applicant was not an applicant for the purposes of the review and, in order to discharge its obligations pursuant to s.395A of the Act, the Tribunal was required to put to the applicant information provided by the visa applicant.

  3. The first respondent, it must be said, surprisingly in the circumstances, did not object to those amendments. In those circumstances, leave was granted to the applicant to further amend, orally, his application to the Court.

  4. Although leave was not sought to amend it, I note that, before the Court in oral submissions, the applicant also sought to expand ground two to include a complaint that the Tribunal’s findings in relation to the payment of money were irrational or illogical (said to be with reference to [31] – [32] at CB 280).

  5. Given the evolving nature of the application to the Court, even during the course of the final hearing, I have set out that evolution as it relates to each ground in some detail below. The lack of precision in the applicant’s presentation before the Court was an obstacle to be overcome by the Court.

Particular “(a)” to Ground One: Submissions

  1. Ground one of the further amended application asserts that the Tribunal failed to carry out its statutory duty in two ways.

  2. First, that the Tribunal failed to comply with ss.359A, and 359AA, of the Act (particular “(a)” to ground one). In the amended application, that complaint was particularised with reference to “… the anonymous allegation made in 2007 and the couple’s interview with the Department of Immigration and Citizenship”. In the applicant’s written submissions (at [12]), that complaint was particularised with reference to:

    “a. The anonymous allegation in regard to the relationship. CB 28 para 39 – 40.

    b. The visa application’s advertisement.

    c. The statement of the visa applicant about her mother’s illness, CB 282 para 41.”

    [Errors in the original.]

  3. I ultimately understood the matter referred to in the applicant’s written submissions at [12] (b) to be included in particular “(a)” to ground one. Further for [12] (c) to be the subject of “particular ‘(d)’” to ground one. That is, the second basis in ground one on which the applicant said the Tribunal failed to carry out its statutory duty. Specifically, that the Tribunal failed to comply with ss.359A and 359AA of the Act in that the visa applicant was not an applicant for the purposes of the review and, as such, information provided by her should have been put to the applicant.

    [As noted above, particular “(b)” of ground one was not pressed and particular “(c)” of ground one was amended and became “ground three” of the further amended application.]

  4. In relation to the anonymous allegation, the applicant submitted that, although the Tribunal discussed the allegation with him, it failed to give clear particulars to him. The applicant further submitted that the Tribunal did not explain to him its relevance, and that he could seek additional time to comment on, or respond to, the information in that allegation.

  5. Before the Court Mr Turner submitted that there was “more in the allegation” than what was put to the applicant by the previously constituted Tribunal in its “s.359A letter”, dated 8 November 2010, inviting the applicant to comment on, or respond to, information (CB 211 to CB 212).

  6. In support of this, the applicant referred the Court to the information disclosed in the “s.359A letter” sent by the earlier constituted Tribunal, and to the current Tribunal’s findings in relation to that allegation. In particular, the Tribunal’s finding at [39] (at CB 281 to CB 282):

    “As noted elsewhere, in 2007 DIAC received an allegation suggesting that the visa applicant placed an advertisement in the newspaper seeking a partner for the purpose of living overseas, stating that a marriage for convenience was okay and suggesting that the visa applicant has paid the review applicant for the sponsorship and that the relationship is not a genuine one. The review applicant claims that the allegation was made by his former partner because he refused to give her money for her gambling. While the Tribunal would normally place little reliance on unsubstantiated allegations made by unidentified persons, in this case, the Tribunal has determined that it could give weight to the information contained in the allegation. This is because much of the information contained in the allegation has been confirmed by the review applicant. For example, the allegation refers to the review applicant having a gambling addiction and gambling debts, which the review applicant confirmed in his oral evidence to the Tribunal. The allegation refers to the visa applicant placing an advertisement in the paper seeking a partner overseas and the review applicant confirmed in his oral evidence to the Tribunal that the visa applicant did place such an advertisement and that she did have a desire to run a business overseas. The allegation refers to the visa applicant giving a proportion of the fees to the review applicant in November or December 2007 and the review applicant confirmed in his oral evidence to the Tribunal that the visa applicant gave him about $20,000 shortly after the marriage. The accuracy of this information points to the veracity of the other information contained in the allegation. The Tribunal’s main concern is with the fact that the visa applicant is claimed to have stated in the advertisement that a marriage for convenience was okay, so that the allegation suggests that the relationship between the visa applicant and the review applicant is not a genuine one and that the review applicant was being paid.”

    [Emphasis added.]

  1. The Tribunal’s summary of the allegation in [39] (at CB 281 to CB 282) was said by the applicant to be “substantially the same” as that in the “s.359A letter”.

  2. However, before the Court, the applicant stressed the words “much” and “other” (as reproduced bolded in [35] above) in the Tribunal’s decision record to support his contention that the allegation contained more than what was set out by the Tribunal, and in the s.359A letter. It was that “more”, in breach of s.359A of the Act, that the applicant alleged was not put to him. The applicant did not know what that “other” information, or the “more”, was.

  3. The Minister submitted that that complaint had “no proper foundation” ([24] of the first respondent’s written submissions). In particular, that the Tribunal, as previously constituted, wrote to the applicant, provided particulars of the information received from the anonymous third party and invited the applicant to comment on, or respond to, that information, thereby discharging its obligation under s.359A of the Act. In that way, the Tribunal, as previously constituted, complied with the obligations under s.359A of the Act and the “subsequent” Tribunal was not required to put that information to the applicant again.

  4. In relation to the applicant’s submission before the Court that [39] (at CB 281 to CB 282) of the Tribunal’s decision record revealed that there was “more” or “other” information in the allegation, the first respondent submitted that the correct way to read that paragraph was that the Tribunal was saying that the accuracy of two pieces of information in the allegation pointed to the other information, already referred to in the allegation, being correct.

  5. Further, that the only evidence before the Court as to what was received by the Department from the anonymous source is that referred to in the “s.359A letter” and the Tribunal’s decision record, both of which are consistent with the other. Even further, that in order for a breach of s.395A to be made out, the “other” information would have to have been relied upon by the Tribunal to affirm the decision under review. The Minister submitted that there was no evidence before the Court to suggest that any other information obtained from the anonymous source, other than that at [19] (at CB 278), was considered by the Tribunal to be relevant to the outcome of the review of the delegate’s decision.

Particular “(a)” to Ground One: Consideration

  1. A number of matters require note.

  2. First, given the character of the applicant’s submissions before the Court, both generally and relevant to this ground, I find it necessary to remind the applicant of the relationship between s.359A and s.359AA of the Act. That relationship has been described as the latter (s.359AA of the Act) providing one facilitative mechanism by which the Tribunal may orally discharge the obligation arising in the former (s.359A of the Act) (SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 and see also SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).

  3. Second, to the extent that the applicant’s submissions appeared to imply that the obligation to provide the information arose from s.359AA of the Act, that must be rejected because that obligation arises from s.359A of the Act.

  4. Third, any failure to comply with the requirements of s.359AA of the Act would only result in jurisdictional error if the Tribunal was obliged in the first instance, pursuant to s.359A of the Act, to give to the applicant “information” which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision and to offer the applicant the opportunity to comment on, or respond to, such “information”, as that term is understood in light of SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) (at [17] – [18]) (noting that s.424A of the Act, the focus of consideration in SZBYR, is the parallel of s.359A of the Act, which is relevant in the current case).

  5. Attention, therefore, must first be directed to s.359A of the Act. The applicant says that the “information” was received by the Minister’s department from an anonymous source which made allegations about the marital relationship of the applicant and the visa applicant. In essence, that the marriage was contrived for the purposes of the application for the visa.

  6. In his submissions, the Minister appears to have conceded that the “information” was caught by the understanding of that term given in SZBYR and that the obligation in s.359A of the Act was therefore engaged.

  7. The Minister’s position, however, is that the obligation was discharged when the Tribunal, albeit as previously constituted, wrote to the applicant giving him the information (see the Tribunal’s letter at CB 211 to CB 213). Relevantly, what that letter stated is set out above at [10] – [11]).

  8. The Minister’s submission must be accepted in light of his reliance on SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291. The applicant appeared to accept this point before the Court when it was “… readily conceded that it is the same Tribunal.”

  9. Before the Court, when confronted with the proposition that the anonymous information was the subject of the “s.359A letter”, the applicant agreed. However, at that point, his attack changed to argue that the Tribunal relied on information beyond that given in the “s.359A letter”.

  10. The applicant referred the Court to the Tribunal’s letter (relevantly as set out above at [10] – [11]) for the information that was conveyed. It was the applicant’s contention that each of the matters raised in that anonymous letter were accepted by him.

  11. However, the applicant’s argument was focused on what the Tribunal said at [39] (at CB 281 to CB 282) of its decision record. The applicant read, and stressed, the words “much” and “other” (highlighted in the text above at [35]) to argue that the anonymous allegation contained more information than was given in the “s.359A letter”. That “other” information should have been given to the applicant in compliance with obligation in s.359A of the Act.

  12. There are, at least, two difficulties for the applicant. Those difficulties, for the reasons set out below, mean that the applicant’s submissions in relation to this particular must be rejected.

  13. First, what is set out in the Tribunal’s decision record at [39] (at CB 281 to CB 282), is that proportion of the anonymous allegation which the applicant himself confirmed, in his evidence to the Tribunal, to be accurate. (The Tribunal referred to it as “much of the information”.) What the applicant did not confirm (according to the Tribunal’s account) was that part of the information, from the anonymous source, that the visa applicant wanted to go abroad so that she could take her daughter overseas, that the two parties had made a deal to arrange a marriage of convenience within one month of contacting each other and that, three years ago, the applicant had sponsored another woman from the visa applicant’s city, through a contrived marriage agreement, and that that visa sponsorship had been refused by the immigration authorities. (In context, therefore, the “other” information.)

  14. Second, the applicant has pointed to no other information in the material before the Court, let alone provided any evidence to say that there was “other” “information”, which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision. That is, “information” that engaged the obligation set out in s.359A of the Act.

  15. On the evidence, the Tribunal complied with the obligation in s.359A of the Act. There is no “other” or “more” “information” in the material before the Court in respect of which it could be said that the Tribunal failed to observe the obligation in s.359A of the Act. The letter also reveals that the relevance to the Tribunal’s review was explained and the applicant was given time to comment on, and respond to, that information. Further, in those circumstances, the Tribunal did not need to utilise the facility afforded by s.359AA of the Act to discharge its obligation arising from s.359A of the Act. Particular “(a)” to ground one, as further amended, is not made out.

“Particular ‘(d)’” to Ground One: Submissions

  1. The complaint in “particular ‘(d)’” to ground one was made with reference to [41] (at CB 282) of the Tribunal’s decision record. Relevantly, that:

    “… The visa applicant suggested in her written statement that her mother was critically ill and that was one of the reasons for the quick decision to marry, an explanation which the review applicant did not offer in his oral evidence to the Tribunal…”

  2. That is, that the Tribunal relied on a statement provided by the visa applicant and that the particulars of that statement were not put to the “review applicant” (the applicant before this Court). That was said to be a breach of s.359A of the Act as the visa applicant was not an applicant for the purposes of the Tribunal review and, therefore, any information provided by her did not fall within the exception in s.359A(4) of the Act.

  3. Further, in written submissions, the applicant asserted that since the visa applicant’s statement did not appear in the Court Book it must not have been provided by the applicant, to either the Tribunal or the Minister’s department, in the process of the application ([16] of the applicant’s written submissions). Therefore, it supported the proposition that it was not given to the Tribunal for the purpose of the review.

  4. In written submissions, the Minister submitted that the explanation as to the reason for marrying quickly was provided by the applicant in a written statement to the Minister’s department (with reference to CB 73.1) and, accordingly, was excluded from the Tribunal’s obligation under s.359A of the Act by operation of s.359A(4)(ba) of the Act. That is, that the Tribunal’s reference at [41] to the “visa applicant” and “her” were errors, and that they should be read as a reference to the “review applicant” and “him”.

  5. However, before the Court and contrary to written submissions, the Minister submitted that the information referred to by the Tribunal was submitted by the visa applicant, not the (review) applicant. In particular, he took the Court to the delegate’s decision record at CB 97.9 and the reference there to “… a non translated statement provided by [the visa applicant] that was signed on 2 June 2007”. That statement, amongst other matters, was said to provide that (at CB 98.3):

    “● That one month after [the applicant] returned to Australia, she advised him that her mother was sick. He advised her that they should marry as soon as possible to avoid a traditional waiting period of one year should her mother pass away. She agreed.”

  6. While, before the Court, Mr Alderton had a copy of an untranslated document that bore the same folio number as that referred to in the delegate’s decision record (CB 97.9), it was not known how the delegate had been able to ascertain what was in that “non translated” document (CB 97.9)

  7. Further, the Minister submitted that the information referred to at [41] (at CB 282 and see above at [56]) was itself neutral. Rather, it was the Tribunal’s assessment of that information at [41] (at CB 282) that was adverse to the decision under review. That is, in the Tribunal’s view, it did not “… explain why the couple would not wish to spend more time to get to know each other before making the commitment to marriage” ([41] at CB 282).

  8. However, the Minister submitted that, although the visa applicant’s statement had not been provided by the applicant, he had provided a copy of the delegate’s decision to the Tribunal and, in doing so, the information in that decision (relevantly, the information about the visa applicant’s mother and that being the reason for their prompt marriage) was provided by the applicant to the Tribunal. That is, that in providing the information in the delegate’s decision record to the Tribunal, that information was captured by the exception in s.359A(4)(b) of the Act.

“Particular ‘(d)’” to Ground One: Consideration

  1. The relevant facts, as best as they can be ascertained, are as follows. The delegate had before him a statement signed by the visa applicant. It was “non translated”, from which it can be inferred that it was not written in English. In his decision record, the delegate set out a dot point summary of what he said was claimed in that statement (CB 97.8 to CB 98.4). No explanation was provided by the delegate as to how he was able to ascertain what was written in that statement.

  2. The Tribunal had concerns about many aspects of the relationship between the visa applicant and the applicant. One of these was said to be “the very brief inception of the relationship”.

  3. The Tribunal noted that it had asked the applicant how they “… were able to form a commitment to marriage in only three months” ([41] at CB 282). The Tribunal adversely compared the applicant’s answer (his desire to have a family, his liking of the visa applicant and the difficulty of travelling to China due to his mortgage commitments) with the visa applicant’s claims that it was cheap to travel to China and with the applicant’s frequent trips to China ([41] at CB 282).

  4. In this context, the Tribunal noted the visa applicant’s suggestion “… in her written statement that her mother was critically ill and that was one of the reasons for the quick decision to marry…” ([41] at CB 282). The Tribunal compared this, again unfavourably, with the applicant’s oral evidence and found that he did not offer this as an explanation ([41] at CB 282). The Tribunal then went on to find that none of the reasons offered by either party explained why they “… would not wish to spend more time to get to know each other…” ([41] at CB 282). The Tribunal concluded that, in these circumstances, also, the “… quick development of the relationship and the decision to marry is consistent with the information contained in the allegation about the deal made between the parties” ([41] at CB 282).

  5. It is important to be reminded that the ground put forward by the applicant is an assertion of a breach of s.359AA of the Act. Whether any other assertion of legal error could have been made in circumstances where the delegate relied on an untranslated document, or a translation which has not been put into evidence, or even whether the Tribunal purported to rely on a statement (“… in her written statement…” at [41] at CB 282) that did not appear to have been put in a “translated” form before it, remained untouched and unexplained.

  6. Whatever the circumstances, the legal error asserted by the applicant before the Court, with legal representation, appears to argue from the basis that the Tribunal should have given to the applicant, pursuant to s.359AA of the Act, that information which the visa applicant gave the delegate.

  7. To the extent that this was said to be a breach of s.359AA of the Act, it must be understood in light of the above (see at [42] above) that this is an assertion of a breach of the obligation in s.359A of the Act, in that the information was not given in writing to the applicant, nor was the facility available in s.359AA of the Act utilised to discharge this obligation. The Minister’s answers to this complaint must, in the circumstances, be accepted.

  8. First, the High Court made clear in SZBYR at [18] (with reference to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [23] – [24] per Finn and Stone JJ, citing Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at 282-284) (with reference to s.424A of the Act – the parallel provision to s.359A of the Act) that the term “information” as it relevantly appears:

    “… does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”

  9. What is set out at [41] (at CB 290) of the Tribunal’s decision record is an expression of the Tribunal’s subjective appraisal of the applicant’s and the visa applicant’s evidence. When it is compared with what each had said (in the case of the visa applicant, what was reported to the Tribunal that she said) it found inconsistency between the two and, in particular, a “gap” in the evidence offered by the applicant. No error as asserted by the applicant now is evident in these circumstances.

  10. Second, in circumstances where there is no evidence before the Court that the Tribunal actually had before it the visa applicant’s written statement, it can be, on balance, inferred therefore that the Tribunal’s reference to what the visa applicant had put in her written statement came from the delegate’s description contained in his decision record.

  11. That decision record was given to the Tribunal by the applicant and for the purpose of the review (CB 146.2). As such, even if the impugned material was “information” for the purposes of s.359A of the Act (which it was not) the applicant himself gave that “information” to the Tribunal for the review. It was, therefore, within the exception set out at s.359A(4)(b) to the obligation in s.359A(1) of the Act.

  12. “Particular ‘(d)’” to ground one, as further amended and as explained in oral submissions, is not made out.

Ground Two: Submissions

  1. Ground two of the further amended application alleges that the Tribunal’s decision was irrational and/or illogical. In particular, that the Tribunal based its decision on “an untested allegation made four years prior”, and that the applicant had married the visa applicant after only a three month relationship. That was said to be despite there being a “substantial amount of evidence indicating that the relationship [was] genuine” at the time of the Tribunal’s decision.

  2. That substantial evidence, accepted by the Tribunal at [44] (at CB 283) was said to be (at particular “(a)” to ground two) that the applicant and his wife:

    “a. had lived together in China

    b. had shared the housework

    c. represented themselves in public as a couple

    d. had been married for a number of years

    e. had frequent telephone contact”

  3. In written submissions (at [25]), the applicant claimed that the anonymous allegation was “irrelevant”, and that it was “illogical” that more than three months was required to form a genuine intention to marry. In support of this complaint, the applicant relied on SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 (“SZOOR”) at [15] per Rares J.

  4. Before the Court the applicant’s attack, it must be said, varied in that it was asserted that the Tribunal rejected the “substantial evidence” of the applicant’s marriage on the basis of the four year old allegation (the anonymous allegation) and “some difficulties it saw with the payment of money”. It was the applicant’s submission that the Tribunal’s finding that the applicant was not in a “married relationship” with the visa applicant was irrational and illogical because, when all the evidence was looked at, only one conclusion could be reached. That is, that the applicant and his wife were in a married relationship. 

  5. The Minister’s written submissions only deal with the first matter complained of in ground two. That is, the anonymous allegation. The Minister submits that the Tribunal did not rely solely on the information contained in that allegation to found its decision. Rather, the Tribunal had a number of concerns about the genuineness of the applicant’s relationship. Specifically in relation to its quick inception and the financial arrangement between the parties. Before the Court, the Minister only made oral submissions on the first aspect of the applicant’s complaint.

  1. Further, the applicant’s reliance on SZOOR was said to be “misplaced” as, in that case, the Full Court had concluded that it was neither illogical, nor irrational, for the decision-maker to rely on the anonymous letter that was before it.

Ground Two: Consideration

  1. It must be said that it was difficult to discern just what the applicant claimed to be irrational or illogical. Was the applicant contending that it was irrational and/or illogical for the Tribunal to rely on an anonymous allegation made four years earlier in 2007? Or, was it that the conclusion reached by the Tribunal, said to be based on the anonymous allegation, was illogical and unreasonable? Or, was it the applicant’s contention that it was illogical and/or irrational of the Tribunal to have affirmed the delegate’s decision in light of the evidence presented by the applicant and the visa applicant?

  2. Two things can be said immediately about the latter “possible” complaint. First, in the circumstance and, in particular, in relation to the applicant’s complaint that the Tribunal acted irrationally and/or illogically in finding adversely to him in light of the “evidence” before it, the complaint is an example of asserting irrationality and/or illogicality to mask the real basis of the complaint. Namely, a disagreement with the facts as found by the Tribunal and the conclusion based on those facts (Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) at [129] per Crennan and Bell JJ).

  3. Second, the applicant’s complaint that the Tribunal could not have logically or rationally come to the conclusion it did appears to misunderstand the statutory, and regulatory, scheme applicable to the application before the Tribunal. (In particular, r.1.15A, cl.309 to Sch.2, and r.1.15A(2a) of the Regulations.)

  4. In short, the relevant scheme establishes that for there to be a “marital relationship”, it is not sufficient simply to have gone through a form of marriage. The Tribunal quite clearly understood that to be granted the visa, the parties had to have met, amongst other things, all the criteria which it relevantly set out, in particular, at [10] – [12] of its decision record (CB 276).

  5. In reliance on the attack of irrationality and illogicality, the applicant referred the Court to SZOOR and, in particular, at [15] per Rares J:

    “The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of jurisdictional error.”

  6. It is not clear why the applicant chose this reference. In that case, Rares J reviewed relevant authorities and said, relevantly, two things which provide an answer to the applicant’s complaint before the Court.

  7. First, at [16] his Honour provided that:

    “Unfettered by the authorities to which I have referred, I would have concluded that the Tribunal’s use of the anonymous letter as evidence of the fact that the appellant had fabricated his claims was irrational, illogical and unreasonable. The author of the letter was unknown and had given no reason why he or she (1) knew the appellant, (2) knew the information conveyed in the letter, and (3) had not revealed his or her identity. For all the Tribunal knew, the letter could have been written by a former resident in the appellant’s home, or even a malicious person within the staff of the Tribunal or the Department, who had access to material on the appellant’s file. Critically, there was no material before the Tribunal to indicate that whoever was its author had any personal knowledge of the assertions in the letter about the veracity of the appellant’s claims. It is no answer that the Tribunal acknowledged that it had to treat the anonymous allegations with ‘extreme caution ... as the information in them is untested and the author’s motivations completely unknown to the Tribunal and possibly the applicant’), for it reasoned:

    ‘The fact that a fairly detailed allegation is received to this very effect is also supportive of the ultimate conclusion. That the allegation was made by a person who wishes the applicant ill is undoubted, but the fact that the allegation is able to detail the nature of the fabrication which is supported by an analysis of the evidence provided by the applicant points to that allegation being true.’ (emphasis added)”

    [Emphasis added in SZOOR.]

  8. Further, at [19], Rares J stated:

    “It is difficult to see how it is in the public interest that unknown persons who give no basis for their being in a position to make prejudicial assertions about another person are entitled to any credence in decision-making under the Act: cf VEAL 225 CLR at 98-99 [24]-[25]. Unconstrained by authority, I would have found that to do so is as irrational, illogical and unreasonable as having regard to a person saying that the red headed applicant for a visa should have his claim rejected because he has red hair and is a liar. However, the law appears to be otherwise.”

  9. It could not be that the applicant was now asking this Court to follow Rares J as to the first proposition and to ignore the second. At best therefore, the applicant’s position appears to be that “… no


    decision-maker could have followed that path” (SZOOR at [15] per Rares J) and therefore that the Tribunal acted illogically and irrationally. Beyond assertion though, the applicant never satisfactorily explained how the “path taken” by the Tribunal followed that sole, and lonely, path such as to reveal jurisdictional error.

  10. A complete answer can be found in SZMDS, per Crennan and Bell JJ (at [130] – [131]) and the “sympathetic” view adopted by Heydon J (at [78]) in that case. Further, McKerracher J in SZOOR at [58] and [84] – [85] (and with whom Reeves J agreed at [112]), in my respectful view, provides a clear explanation in answer to the applicant’s complaint now to the Court:

    “[84] In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

    ‘Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.’

    [85] What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.”

  11. As best as it could be understood, the applicant’s argument before the Court appeared to be that there was evidence before the Tribunal that the applicant and the visa applicant were married. Further, that there was evidence (it must be said, largely their own assertions) of certain indicia of a marital relationship, for example, that they shared housework and frequently telephoned one another. In this light, therefore, the applicant’s argument runs that minds could not differ on the question as to whether their relationship met the relevant criteria for the grant of the visa.

  12. What remains in the consideration of this ground, elephant like, and outside the scope of the applicant’s argument before the Court, is that the essence of the Tribunal’s reasoning was that it was a “contrived” marriage. Any plain reading of the Tribunal’s analysis reveals that it engaged with all of the factual assertions put before it. It gave cogent and probative reasons as to why the applicant and visa applicant were not, in effect, in a genuine marital relationship for the purposes of the Regulations.

  13. The key paragraph in the Tribunal’s analysis in this regard is at [45] (at CB 283):

    “Having regard to the totality of evidence before it, and while acknowledging a substantial amount of documentary and oral evidence which points to the existence of a genuine and committed spousal relationship, the Tribunal is not satisfied that such relationship exists. The Tribunal is not satisfied that at the time of application and time of decision the visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requirements of r.1.15A(1A)(b)(i) and r.1.15(1A)(b)(ii) for a married relationship.”

  14. The Tribunal’s analysis, and the decision which resulted, is, in light of the above, neither irrational nor illogical. The applicant’s attack really seeks to take issue with the Tribunal’s relevant findings and conclusion. Minds may differ, and the Tribunal gave reasons for its findings, which were reasonably open to it on what was before it. That another Tribunal member may have reasoned and found differently does not make this decision irrational or unreasonable. Ground two is not made out.

  15. For the sake of completeness, I note in relation to the Minister’s submissions that the Tribunal’s analysis in relation to the anonymous letter is severable from the remainder of its decision that an argument may be made that the Tribunal, at least on a fair reading, would have reached the conclusion it did without having regard to the anonymous letter. Its other findings and analysis lead to the same conclusion. That is, the relationship did not meet the regulatory requirements for the grant of the visa. The anonymous allegation, and more particularly its contents, simply reinforced the Tribunal’s conclusion.

  16. However, even if that was not the case, what distinguished this case from many other cases where anonymous “dob-in” letters are present is that the applicant himself, in his evidence, confirmed much of the contents of the anonymous allegation.

  17. Whatever concerns may be harboured about the source, his or her reliability and motivation are, in my view, irrelevant once the applicant confirmed much of the contents of the allegation. In that sense, the applicant’s own evidence provided the verification and authenticity for what was alleged in the anonymous allegation. In this light, it was not irrational or illogical for the Tribunal to give weight to the matters set out in the anonymous allegation. The applicant himself gave them substance.

“Ground Three”: Submissions

  1. “Ground three” of the further amended application alleges that, in breach of s.360 of the Act, the Tribunal failed to consider an integer of the applicant’s claim. That integer was said to be that the Tribunal failed to consider that the relationship between the applicant and the visa applicant was genuine at the time of decision.

  2. It was the applicant’s submission that, despite finding that the marriage was (initially) “contrived”, the Tribunal was still required to consider whether the marriage was genuine and continuing at the relevant time, or times. That is, at the time of application and at the time of decision. The applicant, then with reference to Berenguel v Minister for Immigration & Citizenship [2010] HCA 8, raised an alternate argument that “… the only relevant date is the date when the Tribunal considers the application”. It was ultimately the applicant’s submission that the Tribunal did not consider the relationship as at the date of decision.

  3. In support of this complaint, the applicant relied on Re: Barbara June Bretag v Immigration Review Tribunal & Minister for Immigration Local Government & Ethnic Affairs [1991] FCA 582 (“Bretag”) at [41] per O’Loughlin J and Re: Minister for Immigration Local Government & Ethnic Affairs v Gambur Singh Dillon & Mareelle Suzanne Maree Lievense Dhillon [1990] FCA 144 (“Dillon”) per Northrop, Wilcox and French JJ and the reference in that judgment to R v Chaill 1780 Z NSWLR 453 (“Chaill”) at p.458 per Street CJ ([22] of the applicant’s written submissions).

  4. In response, the Minister submitted that the applicant’s complaint failed on the facts. That is, that the Tribunal had considered the relationship as at the time of decision and, variously, found that it was not satisfied that ([33] of the Minister’s written submissions):

    “(i) The visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing: CB 283, par 45

    (ii)The visa applicant and review applicant lived together or did not live separately and apart on a permanent basis: CB 283, par 47, or

    (iii) They were in a married relationship: CB 283, par 47.”

  5. Further, the Minister submitted that the applicant had failed to point to any integer of his claim that was not considered by the Tribunal. Instead, it was the Minister’s contention that the applicant’s complaint was best understood as an assertion that the Tribunal applied the wrong test. In turning its mind to those matters set out above, the Minister submitted that the Tribunal plainly considered the relationship as at the time of decision and applied the right test in determining the visa application.

  6. Further, the Minister submitted that the authorities referred to by the applicant (see [103] above) were not relevant to the Tribunal’s task in the current matter. That was said to be because those authorities were concerned with different visa criteria and were not applicable to, nor did they provide guidance on, this matter.

“Ground Three”: Consideration

  1. It must be said that the applicant’s approach to the formulation of this ground, and its presentation, was confused. That was, in part, because the ground seemed to evolve during the course of the hearing.

  2. Initially “ground three” was a particular to ground one. That is, that a breach of ss.359A and 359AA of the Act was revealed by the Tribunal’s failure to consider all the integers of the applicant’s claim. The relevant particular was amended orally at the hearing to assert a breach of s.360 of the Act and elevated to a separate ground of the application. That is, that the Tribunal failed to consider all integers of the applicant’s claims and thereby breached s.360 of the Act.

  3. Throughout this evolution reference was made by the applicant to, what the Minister subsequently described as, a complaint that the Tribunal applied the wrong test. That is, that the Tribunal did not consider the circumstances of the application at the relevant time. Namely, the time of decision.

  4. First, the complaint that the Tribunal failed to consider all integers of the applicant’s claims does not seemingly relate to any iterations of the grounds as variously asserted. If it did, then the applicant failed to satisfactorily explain this.

  5. Second, even if he had, it is difficult to see how the complaint could be made out in the circumstances of this case and what was presented to the Tribunal. The applicant does not say what integers were not considered. Nor, on the material before the Court, is it evident that the Tribunal failed to consider any integers.

  6. Third, what seemingly (perhaps) emerged from the applicant’s submissions to the Court was the assertion that the integers of the claims that the Tribunal failed to consider was the failure to consider the circumstances as at the time of decision. It is difficulty to see how this can be said to be a failure to consider an integer. An integer of a claim, for that matter a claim, is that which is expressly stated by the applicant, or clearly arises from the circumstances presented, and which is put in support of the applicant’s contention in the application for the visa as to why the visa should be granted. In those circumstances, I cannot see that the applicant’s complaint that the Tribunal failed to consider the circumstances as at the time of decision can be properly characterised, nor described, as a failure to consider an integer of a complaint.

  7. As the Minister submits, the complaint, at best as it can be understood for the applicant, is an allegation that the Tribunal applied the wrong test. That is, that the Tribunal did not consider all of the integers of the applicant’s claims at the relevant times. Relevantly, as at the time of decision.

  8. Any plain reading of the Tribunal’s decision record demonstrates that this complaint cannot be made out. That is made clear, at least, with reference to [47] (at CB 283) of the Tribunal’s decision record:

    “For these reasons the Tribunal finds that at the time of application the visa applicant and review applicant were not in a married relationship within the meaning of r.1.15A(1). The Tribunal further finds that at the time of decision, they are not in a married relationship.”

  9. Fourth, although not expressed by the applicant as such, it may be that the applicant’s argument was as follows. That, even if the marriage was “contrived” initially, that did not mean that it did not, over time, develop into a “genuine” martial relationship. The applicant’s references in submissions to authorities such as Dillon, Chaill and Bretag allow for an inference to be drawn that this is what the applicant was trying to argue before the Court.

  10. Therefore, when viewed in this light, it may be that the applicant’s complaint can be understood as asserting that the Tribunal failed to have regard to the “morphing”, or the evolution, of his and the visa applicant’s relationship. That is that, notwithstanding the initial contrivance of the relationship, the relationship became over time a “genuine” one, and that that “genuine” relationship was an integer of the applicant’s claims.

  11. The difficulty here for the applicant is that, before the Court, he did not point to where such a claim, or integer of a claim, was expressly made to the Tribunal, nor where it could be said to clearly arise from the circumstances presented.

  12. The applicant made no such express “concession” to the Tribunal. Before the Tribunal, the applicant maintained that the relationship was genuine at all times. That his legal advisers seek, impliedly, to make the concession before the Court that the marriage was initially contrived does not assist the applicant now.

  13. Further, in the circumstances presented, the Tribunal did consider the changing nature of the relationship over time. For example, the Tribunal did accept that the applicant and the visa applicant “… have lived together during the review applicant’s visits to China” ([33] at CB 280), noted evidence that, since the marriage, they represented themselves to others as being married ([35] at CB 281), accepted the possibility that “… the length of the relationship may point to the parties commitment” ([36] at CB 281) and accepted “… there is frequent communication between the parties” ([37] at CB 281).

  14. However, the Tribunal pointed to a number of other factors, for example, the lack of financial documentation ([29] at CB 280), the lack of joint responsibility and control of the children ([34] at CB 281), the applicant’s indifference about the visa applicant’s business despite it being a significant aspect of her life ([38] at CB 281), the quick inception of the relationship ([41] at CB 282) and financial aspects of this relationship ([42] at CB 282) to find that “[h]aving regard to the totality of the evidence…” ([45] at CB 283) they did not meet the relevant requirements. (See also, no joint ownership of assets and the like ([30] at CB 280), other financial aspects of the relationship ([31] – [32] at CB 280) and a lack of interest about his partner’s future ([38] at CB 281).)

  1. The applicant’s complaint, therefore, seeks to cavil with the Tribunal’s analysis and findings. It seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

  2. Fifth, the ground as originally pleaded made reference to ss.359A and 359AA of the Act. It was not clear whether, in amending the complaint, it was focused only on s.360 and not ss.359A or 359AA of the Act. For the sake of completeness, I note that the applicant was unable to explain before the Court how the assertion that the Tribunal failed to deal with all integers of the claims provided, or was related to, a breach of s.359A of the Act. That is, because it is not.

  3. Sixth, the failure was also finally said to be a breach of s.360 of the Act. That section obliges the Tribunal to invite the applicant to a hearing, to provide a meaningful opportunity for him to give his evidence and arguments, and to expose the issues dispositive of the review if such issues are not live issues as a result of the delegate’s decision (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

  4. The applicant was invited to a hearing. He was given a meaningful opportunity to present his evidence and his arguments. The assertion that the Tribunal did not focus on the character of the “married relationship” as at the time of decision is not an issue in the review. It is, as the Minister proposed, an allegation that the Tribunal applied the wrong test.

  5. To the extent that the nature of the relationship was found not to be a “married relationship”, for the purposes of the relevant regulation is an outcome of what were issues in the review (the “contrivance” and the different elements of the relationship relevant to the criteria in the Regulations) these were all exposed at the hearing with the Tribunal. In addition, these were all live issues as a result of the delegate’s decision. Before the Court, the applicant made no submission against either of these two propositions. No breach of s.360 of the Act is made out. “Ground three” is not made out.

Conclusion

  1. The applicant’s grounds, as particularised, amended, further amended, and as they evolved, are not made out. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  19 December 2012

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