FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Truong [2016] FCAFC 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The First Respondent, Ms Uyen Phuong Truong, was born in Vietnam in 1984 and is a citizen of Vietnam.

2    In September 2007 she met Mr Troy Lee Tran in Vietnam.

3    Ms Truong and Mr Tran decided to marry in July 2008. Ms Truong was granted a Prospective Marriage (Temporary) visa in August 2011. She arrived in Australia a few days later and married Mr Tran later that month.

4    Ms Truong applied in September 2011 for a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the “Migration Act”). She did so on the basis of her relationship with Mr Tran.

5    A delegate of the Minister refused Ms Truong’s application.

6    The former Migration Review Tribunal affirmed the delegate’s decision and published its reasons in March 2015. The Tribunal was not satisfied that Ms Truong:

    met the definition of a “spouse” in s 5F(2)(b) to (d) of the Migration Act; or

    satisfied cl 801.221(6) of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

In reaching these conclusions, the Tribunal made adverse assessments of Ms Truong’s credibility and found (for example) that her evidence contained many “inconsistencies”.

7    Ms Truong then sought judicial review of the Tribunal’s decision. In August 2015, in an ex tempore judgment, a Judge of the Federal Circuit Court (inter alia) quashed the decision of the Tribunal and ordered that the matter be re-considered: Truong v Minister for Immigration & Anor [2015] FCCA 2319. In reaching that conclusion, the Federal Circuit Court Judge:

    allowed further evidence to be adduced on behalf of Ms Truong as to whether her solicitor had sought to file with the Tribunal a copy of a Provisional Apprehended Domestic Violence Order – an officer of the Tribunal, according to the further evidence, photocopied only the first four of the seven pages which had been provided;

and proceeded to conclude:

    that what became known as the “missing three pages” was material to the fact-finding process of the Tribunal; and

    that the Tribunal committed “jurisdictional error” by “not having regard to the missing three pages of the apprehended violence order…”.

The Minister now appeals from this decision of the Federal Circuit Court Judge.

8    The Minister’s Notice of Appeal, in summary form, asserts appellable error arising from the manner in which the hearing before the Federal Circuit Court proceeded, namely:

    a denial of procedural fairness by reason of the primary Judge permitting the further evidence to be adduced on behalf of Ms Truong and making findings on that evidence without affording the Minister an opportunity to make submissions.

The Notice of Appeal further asserts appellable error on the part of the primary Judge for the manner in which he concluded that the decision of the Tribunal was affected by jurisdictional error, namely:

    his Honour’s finding that the Tribunal committed jurisdictional error in not having regard to the three missing pages in circumstances where (inter alia) the information in the missing pages was “virtually identical to material that was before the Tribunal”; and

    the failure on the part of the primary Judge to have regard to s 5F of the Migration Act and by misconstruing s 65 of that Act.

Presumably to confront the prospect that the Minister’s success on appeal would leave standing the adverse decision of the Tribunal, a Notice of Contention was filed on behalf of Ms Truong. That Notice, in order to support the conclusion that the Tribunal’s decision was vitiated by jurisdictional error, asserts further error arising from the primary Judge’s failure to conclude that the Tribunal erred:

    in failing lawfully to consider those parts of the Provisional Apprehended Domestic Violence Order that were before the Tribunal; and

    in failing to take into account the legal basis upon which the final Apprehended Domestic Violence Order was taken out.

9    The appeal is to be dismissed. It is, accordingly, unnecessary to resolve in any great detail the issues raised by the Notice of Contention. Had it been necessary to resolve those further issues, they most probably would have been resolved adversely to Ms Truong.

THE PROVISIONAL APPREHENDED DOMESTIC VIOLENCE ORDER

10    Much of the dispute between the Minister and Ms Truong before the Federal Circuit Court centred upon the Provisional Apprehended Domestic Violence Order.

11    That Provisional Order was made by the Fairfield Local Court in February 2015. The application was made by a police officer; the defendant was identified as Mr Tran. It is a document of some seven pages in length.

12    What primarily divided the Minister and Ms Truong was whether the entirety of those seven pages had been made available to the Tribunal.

13    According to the affidavit filed by the solicitor for Ms Truong in the Federal Circuit Court, annexed to the affidavit were “pages 5, 6, 7 of the complete provisional ADVO dated 6 February 2015, which have not been produced in the court book”. An affidavit filed by the Minister’s solicitor stated that she had “reviewed the MRT file to see whether it contained any or all of the three pages”, being pages 5, 6 and 7. Those three pages could not be found and inquiries were made of the Department. An email provided in response to the inquiry stated (without alteration):

The Tribunal have advised that the provisional order of the ADVO is at folios 86 to 89 of the tribunal file, and the final order is at folios 95 to 97. However the three pages of annexed documents do not appear to have been provided to the tribunal and they are not on file.

Had the available facts remained as stated in the two affidavits and the annexure, the conclusion would most probably have been that the last three pages of the Provisional Order had not been “provided to the Tribunal…”.

14    At the outset of the hearing before the Federal Circuit Court Judge, however, that state of play changed. The following exchange occurred between the Judge and Counsel for Ms Truong:

HIS HONOUR:    So I just want to understand at the moment is it common ground that the documents annexed to the affidavit of 12 August were not before the Tribunal.

COUNSEL:    No, it is not. My instructing solicitor by her affidavit on 12 August says that they were given to the Tribunal.

There then followed a series of interjections and the exchange continued after the Federal Circuit Court Judge had referred to the affidavit evidence that had been filed on behalf of Ms Truong:

HIS HONOUR:    It doesn’t indicate that they were actually before the Tribunal, and it doesn’t purport to say that so ---

COUNSEL:    Your Honour, I understand what your Honour says. I would submit that by implication it does say that, and if there is any dispute to that effect I would seek to adduce further evidence from my instructing solicitor. I understand this is over my friend’s dead body.

HIS HONOUR:    I propose to give you leave. You can call your solicitor.

The solicitor for Ms Truong then gave evidence that she had handed to the Tribunal the seven page document “to take a copy” and “the original was handed back to me”.

15    Attention was then shifted to whether or not there would be cross-examination of the Minister’s solicitor, Ms Hooper. During that exchange, the primary Judge gave the following indication regarding what had flowed from the evidence given with leave (without alteration):

HIS HONOUR:    The only reason for me saying that is I can understand if – if the proposition was that there was some likely error in the identification of the documents that Ms Hooper could explain in advance, that would be one aspect. But on the evidence of your solicitor, it appears crystal clear that what happened that was that all that was copied was the orders, notwithstanding that it had additional three pages and what was handed back was the whole of the document and what the Tribunal kept was only the – was the material that comprises the four pages that relevantly reflect the order but not the full seven as is apparent on the documents before the Tribunal. Now, whether the fleeting presentation and return gives rise to some ground, I have no doubt we will develop that.

COUNSEL:    No doubt, your Honour, but Ms Hooper is off the hook.

16    The Federal Circuit Court Judge in his reasons for decision relevantly concluded (without alteration):

[3]    Ms Truong’s solicitor gave evidence on behalf of the applicant that she attended the hearing before the Tribunal and handed up a covering letter to the Tribunal together with a seven page document relating to a provisional Apprehended Domestic Violence Order taken out on 6 February 2015 and a bundle of other documents purportedly relating to evidence of cohabitation. Ms Truong gave evidence that she did not have a copy of the Apprehended Domestic Violence Order document of seven pages and requested the Tribunal to copy it and return it to the applicant.

[4]    I accept the evidence of Ms Truong that the original was returned to her. Other evidence was put on by the solicitor for the first respondent, Ms Hooper, in relation to what was on the record of the Tribunal. I accept that the only the first four pages of the seven page document were treated as in evidence in the review by the Tribunal. The applicant intended to provide and physically did provide to the Tribunal the whole seven pages. Unknown to the applicant or her solicitor the review proceeded with only a copy of the first four pages in evidence before the Tribunal. Until after the decision the applicant was unaware that the Tribunal had not copied the last three pages, and the applicant clearly intended the Tribunal to have before it the whole of the seven page document. Albeit I note that the four page document before the Tribunal does record that it is only four pages out of seven.

17    The reason the missing pages assumed importance was that Counsel for Ms Truong wanted to rely upon the following passages from page 5 of the missing pages:

Approximately 12:05am on Saturday 24 January 2015, the Pinop contacted Police for assistance as the Defendant became verbally and physically aggressive towards the Pinop after the Pinop refused to give him money. Police attended and removed the Defendant from the location for breaching the peace. At this time the Pinop did not wish to supply Police with a signed statement as she was nervous, unaware and not educated in relation to the actions Police can take for the protection of the Pinop due to her cultural and language barriers.

…

Police with the assistance of a qualified Vietnamese interpreter obtained a signed statement from the Pinop detailing the above mentioned events.

“Pinop” is an acronym for “person in need of protection”.

18    Whatever the explanation, the fact was that pages 5, 6 and 7 of the document were not before the Tribunal. It was the failure of the Tribunal to have before it these three pages, particularly page 5, which exposed the decision of the Tribunal – according to Ms Truong’s case below – to jurisdictional error.

19    Importantly for Ms Truong’s case was that the former passage (it was contended on her behalf) supported her case before the Tribunal that she had contacted the police and that she and Mr Tran had in fact lived together at the address at which the police attended. The potential relevance of page 5 to the Tribunal’s conclusions most clearly emerges from the following paragraph of its reasons for decision:

63.    The Tribunal has taken into account the evidence of the Interim and Final ADVO Orders provided. As noted above, there was inconsistent evidence before the Tribunal about who had contacted the police in January 2015. The Tribunal had not been provided with any independent evidence to indicate that the police were actually called to the parties’ home in January 2015. The copies of the Interim and Final ADVO Orders do not persuade the Tribunal that the parties were ever living together at the Greenfield Park address.

The passages on page 5 of the missing pages, so ran the argument, may well have led the Tribunal to reach a different conclusion had they been available for consideration.

A DENIAL OF PROCEDURAL FAIRNESS?

20    There can be no doubt that the rules of procedural fairness apply to proceedings in the Federal Circuit Court of Australia: Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301. When reviewing a decision of the same Judge of the Federal Circuit Court summarily dismissing a proceeding, Mansfield, Tracey and Mortimer JJ observed:

[37]    It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant … Counsel for the Minister did not, of course, gainsay that proposition.

[38]    It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions: (2015) 229 FCR at 308 to 309.

See also: SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24 at [36] per Kenny, Robertson and Griffiths JJ.

21    Argument in the present proceeding focussed not upon the need for the primary Judge to comply with the rules of procedural fairness but rather upon the discrete question of whether there had been a failure to afford the Respondent Minister a reasonable opportunity to be heard.

22    There were arguably two denials of that opportunity, namely the denial of an opportunity to make submissions:

    on whether leave should be granted to adduce additional evidence; and

    on the findings of fact to be made, consequent upon the evidence being adduced.

It is the former potential breach which occasions most concern.

23    Notwithstanding that Counsel for Ms Truong had informed the Federal Circuit Court Judge that the Minister opposed the application to adduce further evidence, and that such a course would be taken “over my friend’s dead body”, the primary Judge permitted the further evidence to be adduced without inviting Counsel for the Minister to explain her opposition to that course.

24    Although undoubtedly it would have been prudent to have invited submissions from the Minister before permitting further evidence to be adduced, there was no denial of procedural fairness. It remained open to Counsel for the Minister to make submissions opposing the course being followed. The highest the case was advanced before this Court for why there were no such submissions advanced was that the procedure had the “air of finality” about it. That, with respect to Counsel, is not a persuasive response. Had the Minister been unrepresented, a different conclusion may have been reached. But the Minister was represented by experienced Counsel. On occasion, Counsel forcefully (but respectfully) have to defend the rights of their client – no matter the extent of any perceived judicial reluctance to entertain further submissions.

25    Whatever may have been the forensic judgement made by Counsel for the Minister, it was open to Counsel to oppose the course being pursued. A failure to make submissions is not the denial of an opportunity to be heard.

26    The asserted lack of an opportunity to advance submissions on the consequent findings to be made once the further evidence had been adduced is founded upon even shakier foundations. There was no application, for example, made on behalf of the Minister seeking a short adjournment to obtain instructions regarding the evidence that had just been given or to consider what future course the hearing should take.

27    Notwithstanding the rather peremptory manner in which the Federal Circuit Court Judge proceeded, there was no breach of the rules of procedural fairness in the circumstances of the present case.

28    The first Ground of Appeal is rejected.

JURISDICTIONAL ERROR – A FAILURE TO CONSIDER THE MISSING PAGES

29    The second Ground of Appeal advanced on behalf of the Minister, in very summary form, argues that the Tribunal committed no jurisdictional error in failing to consider the three missing pages for the simple reason that there was “virtually identical” information elsewhere in the materials that were before the Tribunal. The Appellant Minister contends that the primary Judge erred in not so finding.

30    Irrespective of how this present Ground may be resolved, the Minister separately contends in the final Ground of Appeal that no error emerges from the Tribunal’s omitting to consider whatever information was found either within the missing three pages or elsewhere.

31    Of present concern is whether the Minister is correct to submit that “virtually identical” information was to be found elsewhere in the materials otherwise before the Tribunal.

32    The information said to be “virtually identical” was that contained in a Statement of a Witness, namely Ms Truong, provided to the police in February 2015, which was in evidence below. In relevant part, that Statement provided as follows (without alteration):

4.    I currently resided together with Troy at 554 Smithfield Road, Greenfield Park. Approximately 12.05am on Saturday 24th January 2015, contacted Police for assistance as my husband Troy became verbally and physically aggressive towards me after he demanded money from me and I refused. I believed at the time he wanted money to purchase drugs. Police attended and removed Troy from the property for breaching the peace. From this date, Troy moved into his parents’ house at 80 Lansdowne Road, Canley vale.

5.    I have not seen Troy since the day he was removed by Police from our home on the 24th January 2015, however I have received multiple calls from him on my mobile phone leading up to about 10am on Tuesday 3rd February 2015, I answered his phone call,

Troy said – “Hello, are you still working?”

I said – I’m still working at the nail shop, what you want?

Troy said – “Give me your money!”

I said – “I have no money.”

Troy said – “Why don’t you have money”

I said – “I live by myself, I need to save the money?”

He said – “You have to give me the money otherwise, I will hit you like I did last time!!”

6.    I ended the phone call once he threatened me. I became very scared of what he said to me and fear for my safety as I do not know what he is capable of what he might do. I live by myself and I am worried he may come home and hurt me and take my money.

33    Notwithstanding a similarity of the information contained within page 5 of the missing pages and the above statements in the Witness Statement, there remain potentially significant differences, namely:

    the fact that page 5 of the missing pages contained a statement that the Witness Statement did not, namely that Mr Tran “took his belongings”, which perhaps provided some evidence that Mr Tran had in fact been living at the premises attended by the police – at least to the extent that he had some “belongings” there which he wished to remove;

    the fact that page 5 of the missing pages formed part of an application which the presenting police officer considered sufficiently probative or relevant to place before the Local Court for its consideration; and

    the fact that the Witness Statement of Ms Truong was not signed by her.

Although page 5 of the missing pages contains at the foot of the page a statement that the police with the assistance of an interpreter had obtained a signed statement, the Witness Statement now relied upon was not signed and no signed copy of any Witness Statement was in evidence.

34    Although it may readily be accepted that different minds may well place greater or lesser significance on one or other of these differences, it is ultimately concluded that the similarities are not such that the Tribunal inevitably would have reached the same conclusion if it had the missing pages and compared them with the information in the Witness Statement. Given that the missing pages were not available to the Tribunal and were necessarily not taken into account, it remains a dangerous exercise for this Court itself to attempt to evaluate what conclusion the Tribunal would have reached. Indeed, to do so would be impermissibly to trespass into the arena of merits review and not judicial review.

35    To the extent that the primary Judge apparently reasoned that the missing pages could have led the Tribunal to make a different finding on whether Ms Truong and Mr Tran ever lived together, no appellable error is discernible.

36    The second Ground of Appeal is rejected.

SECTIONS 5F & 65

37    In seeking to uphold the decision of the Tribunal and in seeking to impugn the decision of the Federal Circuit Court Judge, Counsel for the Minister submitted that:

    the reasoning of the Tribunal was “orthodox” and disclosed no error;

but that:

    the decision of the Federal Circuit Court Judge exposed error by reason of the Judge focussing only upon one aspect of the definition of “married relationship” in s 5F of the Migration Act;

and further erred:

    in concluding that the Tribunal could have reached the requisite state of “satisfaction” for the purposes of s 65 of the Migration Act had the Tribunal had before it the missing three pages.

38    These submissions focus attention primarily upon the requirement imposed by s 65 of the Migration Act that the Minister be “satisfied” that a claimant satisfies the prescribed criteria and the criteria imposed by cl 801.221(2)(c) and (6).

39    These submissions build upon the arguments advanced in support of the second Ground of Appeal. Even assuming information contained within the missing three pages was not “virtually identical” to other information otherwise before the Tribunal, the Minister submits that no jurisdictional error is exposed. The findings made by the Tribunal for the purposes of s 5F of the Migration Act and reg 1.15A of the Migration Regulations, the Minister contends, doomed Ms Truong’s application to failure.

40    This final Ground of Appeal, even considered separately from Ground 2, nevertheless took many twists and turns. Each separately needs to be unravelled.

The statutory structure

41    The starting point is s 65 and cl 801.221.

42    Section 65(1) provides in relevant part as follows:

    … after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

…

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

…

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

43    One of the criteria in respect to which the Minister was required to be “satisfied” for the purposes of s 65(1)(a)(ii) was cl 801.221 of Sch 2 to the Migration Regulations. Clause 801.221 provides in relevant part as follows:

(2)    An applicant meets the requirements of this subclause if:

…

(c) the applicant is the spouse or de facto partner of the sponsoring partner;

…

(6)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the holder of a Subclasss 820 visa; and

(b)    the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

(c)    either or both of the following circumstances applies:

(i)    either or both of the following:

(A)    the applicant;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner; …

It is cl 820.221(6)(c)(i) which assumes relevance in the present appeal.

44    The term “spouse” is defined for both the purposes of the Migration Act and the Migration Regulations by s 5F of the Act as follows:

Spouse

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

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

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

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

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

(d)    they:

(i)    live together; or

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

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

There is no question in the present appeal but that Ms Truong satisfied s 5F(2)(a); what remained to be resolved was whether she satisfied s 5F(2)(b), (c) and (d).

45    For the purposes of s 5F(3), reg 1.15A of the Migration Regulations made “provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. That Regulation provides as follows:

Spouse

(1)    For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(1), (b), (c) and (d) of the Act exist.

(2)    If the Minister is considering an application for:

(a)    a Partner (Migrant) (Class BC) visa; or

(b)    a Partner (Provisional) (Class UF) visa; or

(c)    a Partner (Residence) (Class BS) visa; or

(d)    a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)    The matters for subregulation (2) are:

(a)    the financial aspects of the relationship, including:

(i)    any joint ownership of real estate or other major assets; and

(ii)    any joint liabilities; and

(iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day to day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i)    whether the persons represent themselves to other people as being married to each other; and

(ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)    any basis on which the persons plan and undertake joint social activities; and

(d)    the nature of the persons’ commitment to each other, including:

(i)    the duration of the relationship; and

(ii)    the length of time during which the persons have lived together; and

(iii)    the degree of companionship and emotional support that the persons draw from each other; and

(iv)    whether the persons see the relationship as a long term one.

(4)    If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

46    As this statutory structure makes clear, there is “little utility” in considering the issue of “family violence” for the purposes of cl 820.221(6)(c) unless the spousal relationship is first established: Kaur v Minister for Immigration and Border Protection [2014] FCA 1251. In the context of considering a like requirement imposed by cl 820.221(3), Murphy J there concluded:

[43]    As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence …

[44]    In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.

An application seeking special leave to appeal to the High Court of Australia was dismissed: Kaur v Minister for Immigration and Border Protection [2015] HCASL 27. In dismissing that application, Hayne and Nettle JJ observed that there was “no reason to doubt the correctness of the conclusions reached…”.

A spousal relationship –v– living together?

47    In the present appeal:

    the Tribunal concluded that Ms Truong did not meet the definition of “spouse”;

but the Federal Circuit Court Judge:

    set aside the Tribunal’s decision.

The Appellant Minister contends that the Tribunal’s decision was correct and that the decision of the Federal Circuit Court Judge was flawed.

48    The Minister contends that the detailed findings and reasoning of the Tribunal follow the statutory structure. The findings of fact (including both findings as to credit and findings founded upon matters other than credit) and the reasons of the Tribunal, the Minister contends, should be upheld.

49    Those findings and reasons separately address:

    the terms of s 5F and reg 1.15A(3);

    the financial aspects of the relationship;

    the nature of the household;

    social aspects of the relationship; and

    the nature of the persons’ commitment to each other.

That analysis explored (inter alia) a number of photographs of Ms Truong and Mr Tran that were in evidence; joint bank statements; evidence surrounding the making of, and issue of, the Apprehended Domestic Violence Order; and her oral evidence.

50    It was after setting forth these findings and reasons that the Tribunal expressed its conclusion as follows (without alteration):

CONCLUSION

68.    Given the above findings, the Tribunal is not satisfied that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others that the relationship was genuine and continuing at any time. The Tribunal is not satisfied that the parties have ever lived together or did not live separately and apart on a permanent basis. The Tribunal therefore finds that the applicant does not meet the definition of ‘spouse’ in s.5F(2)(b)-(d).

69.    Therefore the Tribunal is not satisfied that the applicant meets cl.801.221(6).

70.    As is indicated above, in order to rely upon a claim that the applicant satisfies the criteria in cl.801.221(6) the applicant must show that she would meet the requirements of cl.801.221(2), including the requirement of being the spouse of the sponsoring partner, except that the relationship has ceased. As the Tribunal has found that the applicant and the sponsor were never in as spousal relationship as defined in s.5F of the Act the applicant does not meet the criteria in cl.801.221(6) and it is not necessary to assess the claim of family violence.

71.    There is no evidence to indicate that applicant meets the alternative criteria contained in cl.801.221.

72.    For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

The Tribunal then proceeded to affirm the decision not to grant Ms Truong her Partner (Residence) (Class BS) visa.

51    In setting aside the decision of the Tribunal, the Federal Circuit Court Judge focussed attention upon the question of whether it was Ms Truong who contacted the police, and para [63] of the Tribunal’s reasons, and continued (without alteration):

[17]    It is in these combined circumstances of both alleged critical paragraphs that I find that the reasoning of the Tribunal was such that the missing three-page document to which the Tribunal did not have regard was material. I find that the three-page document was material in relation to the fact-finding process by the Tribunal in relation to whether the applicant and sponsor ever living together, in the fact-finding process in relation to the applicant’s credit, the fact-finding process as to what occurred in relation to the attendance by the police and the removal of the sponsor from the premises on 24 January 2015, and the fact-finding process in relation to evaluating the applicant’s evidence in relation to the alleged inconsistency of the sponsor having moved out four months earlier and as to who called the police.

[18]    In the context of the statement to the police that the parties had been in a domestic relationship for four years, counsel for the first respondent did take the Court to the financial documents in the sponsor’s name in respect of which the mortgage account being paid by the sponsor for the benefit of his parents. These records showed one particular bank records were being sent to the Greenfield Park address and also a joint account with a different bank in relation to the sponsor were sent to the same address. The use of that same address by the sponsor was consistent with the applicant’s evidence.

[19]    It is in these circumstances that I find that there was jurisdictional error by the Tribunal not having regard to the missing three pages of the apprehended violence order that the applicant intended to be before the Tribunal in the conduct of its review.

These paragraphs of the reasoning, it will be noticed, address the question of whether Ms Truong and Mr Tran “ever lived together”.

52    It is the attention given to this sole criterion of whether Ms Truong and Mr Tran “ever lived together” which the Minister contends exposes appellable error. In contrast to the detailed findings of the Tribunal in respect to those matters set forth in reg 1.15A(3) of the Migration Regulations, the Judge’s basis for setting aside the Tribunal’s decision was said by the Minister to be founded erroneously upon a conclusion about whether Ms Truong satisfied s 5F(2)(d)(i). Even if the Judge’s conclusions in respect to that one matter can be sustained, the Minister contends that the ultimate conclusion of the Tribunal remains unimpeached. The Tribunal’s findings on the matters set forth in reg 1.15A(3), so it is contended, remain. Those findings, it is contended, are separate and discrete findings upon which the ultimate conclusion of the Tribunal may safely rest.

53    Notwithstanding the initial attraction of that argument, it is rejected.

54    It is concluded that the adverse findings as to credit which were made by the Tribunal permeate its reasoning such that it would be impermissible to dissect from the entirety of that reasoning such findings as may have been made which were not influenced – at least in part – by the adverse assessment made by the Tribunal of Ms Truong’s credibility.

Has suffered family violence – conclusive evidence?

55    One subsidiary argument advanced on behalf of Ms Truong should separately be addressed. It is prudent to address the argument, albeit briefly, lest it is resurrected when the matter proceeds to a re-hearing before the Tribunal.

56    In seeking to impugn the decision of the Tribunal, Counsel for Ms Truong submitted that the decision should be set aside because the Tribunal erred in not giving “conclusive effect” to the Apprehended Domestic Violence Order.

57    The argument starts from a possible misconception. The submission that “conclusive effect” is to be given to the making of the Apprehended Domestic Violence Order seeks to invoke reg 1.23(4) of the Migration Regulations. That regulation provides as follows:

Circumstances in which family violence is suffered and committed—court order

(4)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a)    a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

(b)    the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

Once an order has been made, Counsel for Ms Truong contended that reg 1.23(4)(a) expressly provides that Ms Truong is “taken to have suffered domestic violence…”.

58    The difficulty with the argument, had it arisen for decision, is that reg 1.23(4)(b) was most probably not satisfied on the basis of the available evidence. The Regulation only provides that a person is “taken to have suffered family violence” if both paras (a) and (b) are satisfied. That does not appear to be so in the present case.

The fate of Ground 3

59    Ground 3 of the Notice of Appeal is rejected.

THE NOTICE OF CONTENTION

60    A Notice of Contention has been filed on behalf of Ms Truong.

61    The Notice of Contention seeks to argue that there remain unresolved two further bases upon which the decision of the Tribunal should have been set aside, namely the failure on the part of the Tribunal:

    to have regard to those parts of the Provisional Apprehended Domestic Violence Order that were before it; and

    to “take into account the legal basis upon which the final Apprehended Domestic Violence Order was taken out …”.

Given that the matter is to be re-heard by the Tribunal, it is perhaps prudent to not say anything about the first basis. When the matter is re-heard the Tribunal will presumably have the entirety of the Provisional Order before it and the Tribunal will proceed to make such fresh findings of fact as it sees fit. It is not for this Court to trespass into the arena of what findings could have been made in respect to only part of that Order and thereby inadvertently express views on what findings of fact may be warranted based solely upon only part of the Order.

62    The second basis upon which the Notice of Contention proceeds falls into a different category. Given that the matter is to be re-heard, it is appropriate to make some brief observations.

The legal basis of the Order

63    The contention advanced on behalf of Ms Truong for why the Tribunal’s decision should be set aside, irrespective of any other reason for doing so, is that the Tribunal failed to “take into account the legal basis upon which the final Apprehended Domestic Violence Order was taken out…”. Expressed differently, it was said by Counsel on her behalf that the question “was whether the Tribunal was under a duty to consider the nature and effect of the Court Order.”

64    This argument seizes upon the requirements in both ss 15 and 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the “New South Wales Act”) that an order may only be made for the protection of a person against another “with whom he or she has or has had a domestic relationship…”. Section 15 thus provides that an application may be made for an apprehended domestic violence order for the “protection of a person against another person with whom he or she has or has had a domestic relationship”. Section 16 provides that a court may, upon an application being made, make such an order “if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears” (inter alia) the commission by that other person of a “personal violence offence”.

65    Section 5 of the New South Wales Act defines a “domestic relationship” in relevant part as follows:

For the purposes of this Act, a person has a domestic relationship with another person if the person:

(a)    is or has been married to the other person, or

(b)    is or has been a de facto partner of that other person, or

…

66    The argument, at its most simple, is that the legal basis upon which the final Apprehended Domestic Violence Order was made necessarily required the Local Court to be satisfied that Ms Truong was in a “domestic relationship” as defined in s 5 of the New South Wales Act. The error on the part of the Tribunal, it is contended on her behalf, is the failure of the Tribunal to take that into account.

67    Circumstances frequently arise where a factual question entrusted to an administrative tribunal has previously been the subject of inquiry or resolution by a court or another tribunal. As noted by Meagher JA in Sudath v Health Care Complaints Commission [2012] NSWCA 171, (2012) 84 NSWLR 474 at 494:

Inquiry as to conduct which has been the subject of an earlier conviction or finding

[83] It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject-matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.

Justice Whealy agreed with Meagher JA.

68    Although no detailed review of the authorities has been undertaken in the present case, and indeed no such review is necessary, it would appear that common threads running throughout the cases include the following general propositions:

    an administrative tribunal entrusted with the fact-finding task must discharge its functions in accordance with law;

    an administrative tribunal, in discharging that task, may have regard to findings of fact which have been made previously; and

    the significance to be attributed to previous fact-finding is informed by reference to the issues which have been previously involved, the manner and procedures employed, and the nature of the decision-maker.

Clearly enough, it is the particular statutory context in question which informs the relevance or significance to be attributed to previous fact-finding.

69    It is within that generally-expressed framework that reference may be made to some of the authorities relied upon by Counsel for Ms Truong.

70    One such authority was the decision of the House of Lords in General Medical Council v Spackman [1943] AC 627. Dr Spackman had been found by the Divorce Court to be guilty of adultery with a person with whom he stood in a professional relationship. The General Medical Council gave notice that it was considering whether his name should be removed from the register of general practitioners. Section 29 of the Medical Act 1858 (UK) provided that the Council could, after “due inquiry”, direct the erasure of the name of a medical practitioner who had been “convicted … of any felony or misdemeanour…”. The Council refused to allow Dr Spackman the opportunity to lead certain evidence challenging his conviction and proceeded to direct the removal of his name from the register. The decision of the Council was quashed. Both the Court of Appeal and the House of Lords concluded that the Council had not made “due inquiry”. The decision in Spackman commands continuing respect. It is one of the early decisions seeking to give content to what was then universally referred to as “natural justice”. The phrase “procedural fairness” had not yet evolved. Within that context, Lord Atkin said:

The conduct alleged against the respondent is conduct from which the public have every claim to be protected, and there would be none more ready to afford protection than the members of the medical profession itself. But it is obvious that the gravity of the charge does not diminish the weight of the evidence necessary to establish it: it increases it. The responsibility, therefore, thrown upon the General Medical Council in such cases is grave. Now, it is plain that the statute throws upon the council and on the council alone the duty of holding due inquiry and of judging guilt. They cannot, therefore, rely upon inquiry by another tribunal or a judgment of guilt by another tribunal. The practitioner charged is entitled to a judgment the result of the considered deliberation of his fellow practitioners. They must, therefore, hear him and all relevant witnesses and other evidence that he may wish to adduce before them. It is not disputed that, where there has been a trial, at least before a High Court judge, the notes of the evidence at such trial and the judgment of the judge may afford prima facie evidence in support of the charge: for the council are not obliged to hear evidence on oath. But the very conception of prima facie evidence involves the opportunity of controverting it: and I entertain no doubt that the council are bound, if requested, to hear all the evidence that the practitioner charged brings before them to refute the prima facie case made from the previous trial. If this is inconvenient it cannot be helped; it is much more inconvenient that a medical practitioner should be judged guilty of an infamous offence by any other than the statutory body. Convenience and justice are often not on speaking terms: [1943] AC at 637 to 638.

Lord Wright said:

… Thus in my opinion in the present case the council has to take the inquiry up afresh. There is, in my opinion, no force in certain objections which have been raised. The council very properly have treated the decree of the Divorce Judge as prima facie evidence; so it is, and very strong evidence too, especially considering that the respondent did not appeal but paid the £1,000 damages awarded against him. But that is no reason for refusing him the full and fair opportunity of stating his case before the council. The legislature has not made a decree of the Divorce Court conclusive on the question of adulterous conduct, in the same way as it has made a conviction of felony or misdemeanour conclusive so that in such a case all that the council has to decide on proof of the decree and the identity of the party is whether the adultery amounts to infamous conduct in a professional respect. Parliament, when it thinks fit, can clearly and effectively put a decree of adultery of the Divorce Court on the same footing for the purpose of disqualifying the offender as a conviction of treason and felony. This it has done in the Clergy Discipline Act 1892, s 1. In s 29 Parliament has not done so, but has put convictions for felony and misdemeanour in a special category by themselves. In other cases than these the offences charged must be proved independently by some evidence which the council can accept. Thus the decree is prima facie but no more than prima facie evidence, and the doctor proceeded against must be entitled to call evidence, either his own or that of other witnesses, to controvert the charge … [1943] AC at 645.

Of present relevance is the conclusion that it was for the Council to make “due inquiry” and that it could not rely upon his conviction alone. See also: [1943] AC at 634 to 635 per Viscount Simon LC. As pointed out by Lord Wright, the legislature had not made the conviction “conclusive on the question of adulterous conduct…”.

71    Although different conduct in current society may possibly attract the personal condemnation that their Lordships in Spackman lay at the feet of an adulterer, the case is a reminder that a statutory authority entrusted with decision-making functions must itself discharge that responsibility. The authority cannot divest itself of that responsibility by giving it to others.

72    Citing Spackman, French CJ, Hayne, Kiefel, Bell and Keane JJ in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, (2015) 89 ALJR 382 concluded that the Authority could take enforcement action against a licensee for offences, notwithstanding what might occur or has occurred in a criminal proceeding:

[48]    … There is no incongruity in empowering the Authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against Commonwealth, State or Territory law. Nor is it incongruous that the Authority may suspend or cancel a licence based upon its determination that the broadcasting service has been used in the commission of an offence notwithstanding the licensee’s (or a third person’s) subsequent acquittal of the offence. The court trying the criminal offence is required to determine guilt upon admissible evidence beyond reasonable doubt.

[49]    In determining that a licensee has breached the cl 8(1)(g) licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it: General Medical Council v Spackman [1943] AC 627.

73    In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, (2000) 106 FCR 313, Mr Ali had been convicted at the Sydney District Court of the offence of break enter and steal in circumstances of aggravation. A deportation order was made against him. The Administrative Appeals Tribunal affirmed a decision ordering his deportation. On appeal the question arose of whether the Tribunal erred in going behind the criminal conviction. Branson J relevantly concluded:

[43]    … although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based … policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)    recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and

(b)    limits inconsistency between decisions of the criminal courts and those of tribunals …

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

Section 200, it may be noted, authorised the deportation of a non-citizen to whom that Division of the Migration Act applied. Section 201 provided that s 200 applied where a non-citizen had been convicted of an offence. The fact of conviction was, accordingly, an integral part of the very power to deport. “The conviction is the genesis of the Minister’s power to deport”: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ.

74    In the statutory context now under consideration, it would be wrong to elevate the basis upon which the Local Court made the order to the status of evidence conclusively establishing the fact that Ms Truong was in a “domestic relationship” for the purposes of the Migration Act. Counsel on her behalf did not put the submission so highly. The order made by that Court was made upon the basis of limited materials, namely the witness statement prepared by Ms Truong, in a very different statutory context.

75    The submission that was put on her behalf was that the Tribunal was under a “duty to consider the nature and effect of the Court Order.”

76    Within that context, it would not be erroneous in the present case for either the Minister or the Tribunal, when making a finding for the purposes of s 5F of the Migration Act, to take into account the fact that a Local Court had made an order and had concluded that Ms Truong was in a “domestic relationship”. See also: Ridley v Secretary, Department of Social Security (1993) 42 FCR 276. But that fact or those facts were no more than part of the evidence upon which the Minister and the Tribunal could proceed. The finding to be made by either the Minister or the Tribunal remains that specified by s 65 of the Migration Act, namely to reach a state of “satisfaction”. And in doing so, to have regard to those matters set forth in reg 1.15A of the Migration Regulations. The difference in the tasks entrusted to the Local Court on the one hand and that entrusted to the Minister (or the Tribunal) on the other hand is only underlined when reference is made to the mandatory direction imposed upon the Minister – he “must consider all of the circumstances” – including those set forth in reg 1.15A(3). The Local Court is not so constrained.

77    It is not understood that Counsel for Ms Truong put any proposition inconsistent with this approach. It was understood that the vitiating error relied upon was the failure of the Tribunal to make any reference at all to the legal basis upon which the Local Court proceeded.

78    But no error is exposed in the Tribunal failing expressly to take into account the basis upon which the Local Court proceeded for either of two reasons.

79    First, it is far from certain that the argument as now advanced was a proposition advanced for consideration by the Tribunal. The Tribunal cannot be faulted for not having taken into account a submission which was never put to it.

80    Second, even assuming the argument was advanced before the Tribunal, the failure of the Tribunal expressly to mention the argument does not of itself manifest jurisdictional error. The Tribunal was undoubtedly aware of the making of the final Order by that Court. No jurisdictional error is exposed in the failure of the Tribunal expressly to address all matters which could potentially affect its decision, let alone a factor created in a different statutory context and made for different purposes: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [9] to [10] per Gleeson CJ; at [77] per McHugh, Gummow and Hayne JJ; (2001) 206 CLR 323 at 331 to 332 and 349. It is not necessary for the Tribunal “to refer to every piece of evidence and every contention made by an applicant in its written reasons”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ. The task of the Tribunal was to reach a state of “satisfaction” by reference to the far more extensive factual material placed before it and by reference to the mandate that it “must consider” those matters set forth in reg 1.15A(3).

CONCLUSIONS

81    The appeal should be dismissed. None of the Grounds of Appeal have been made out. Although unnecessary to resolve the Notice of Contention, the failure of the Tribunal to resolve a submission which was most probably never advanced to it for consideration cannot expose jurisdictional error.

82    It was common ground between the parties that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    5 April 2016