FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Ly [2018] FCAFC 123

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal involves a single ground which is whether the judge of the Federal Circuit Court of Australia erred in concluding that the decision of the Administrative Appeals Tribunal (Tribunal) was affected by jurisdictional error on the basis of a denial of procedural fairness.

2    The primary judge allowed an application for review of a decision of the Tribunal made on 14 November 2016 refusing the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

3    The ground of appeal is as follows:

1.    The Honourable Federal Circuit Court Judge erred at [44] in concluding that the Tribunal was required to invite the review applicant’s comment on the veracity of hotel receipts submitted after the hearing.

Particulars:

The hotel receipts did not raise a new issue in the review, and procedural fairness did not require that the Tribunal give its preliminary views about them to the review applicant, or invite comment from the review applicant about such preliminary views, before giving them little weight (at [115]).

Background

4    Before the Tribunal, the present first respondent, Ms Mei Ly, was the review applicant. (We shall refer to her as the review applicant.) There were four visa applicants, being her intended spouse (the visa applicant) and three of his children.

5    The primary judge set out the following chronology.

6    The review applicant made an application for review to the Tribunal on 6 March 2015.

7    On 11 March 2016, the Tribunal invited the review applicant to attend a hearing scheduled for 18 May 2016. On 9 May 2016, the review applicant provided further documentary evidence and a completed Response to Hearing Invitation form.

8    The review applicant, her representative, the visa applicant and witnesses attended a hearing before the Tribunal on 18 May 2016. During the hearing, the Tribunal enquired whether certain corroborating material existed. In particular, the Tribunal asked if hotel receipts existed to corroborate the review applicant’s claims that she and the visa applicant had stayed together at a hotel. The review applicant stated that she had the receipts.

9    After the hearing, on 26 May 2016, the review applicant provided, amongst other documents, further documents relating to holidays that she and the visa applicant had taken, including receipts for hotel accommodation. More particularly, under cover of the letter dated 26 May 2016 by the review applicant’s solicitor there was provided to the Tribunal receipts for the Asia Hotel in the years 2010, 2012, 2013, 2014 and 2015 in the joint names of the visa applicant and the review applicant. In that letter it was stated that in their evidence the review applicant and the visa applicant said they had stayed at the Asia Hotel together and the receipts were provided as corroboration of that. It was said that the receipts being in joint names was further confirmation they stayed together in the hotel as a couple and presented as such.

10    On 30 August 2016, the Tribunal sent a letter to the review applicant inviting her to comment on or respond to information purportedly pursuant to s 359A of the Migration Act 1958 (Cth). No mention was made of the hotel receipts. That is, that letter did not say anything about the receipts for the Asia Hotel provided by the review applicant’s solicitor on 26 May 2016.

11    The review applicant responded to the Tribunal’s 30 August 2016 letter on 23 September 2016 together with further supporting documents.

12    On 14 November 2016, the Tribunal affirmed the decision of a delegate of the Minister not to grant prospective marriage visas to the visa applicants.

The Tribunal’s reasons

13    So far as relevant, the Tribunal’s reasons were as follows. At [29], the Tribunal said that it informed the review applicant that it had not seen any of the documentary evidence of hotel stays. The review applicant stated that she had receipts. Again, at [43], the Tribunal said that it informed the review applicant that it had not seen hotel receipts that the review applicant and the visa applicant stayed together. The review applicant stated again that she had the receipts. At [72] also, the Tribunal said that it informed the review applicant that it had not seen evidence that they stayed together in hotels. The Tribunal informed the review applicant that it had some concerns.

14    At [89], the Tribunal noted that on 26 May 2016 it received a number of documents from the review applicant’s representative, including hotel receipts for the Asia Hotel in Phnom Penh in both the names of the visa applicant and the review applicant from 14 February 2010 to 16 March 2010, 1 October 2010 to 13 October 2010 (sic scil. 2014), 6 February 2012 to 21 February 2012, 26 May 2013 to 16 (sic) June 2013 and 7 June 2015 to 21 June 2015.

15    At [97], the Tribunal referred to a statement, received from the representative, from the visa applicant stating that the review applicant visited Cambodia in 2012, 2013, 2014 and 2014 (sic scil. 2015) and they lived together as husband and wife during each of those trips. The visa applicant stated that they shared a room, from 2012 and lived together as husband and wife. In 2013 and 2014 they also stayed in a hotel.

16    The Tribunal said:

[115]    Although the review applicant has provided hotel receipts from the Asia Hotel, they were only provided to the Tribunal after the hearing and although they are dated different years, they appear to be in the same handwriting. They were not provided to the Department before the decision was made by the delegate and they were not provided to the Tribunal before the hearing. The Tribunal has concerns about the genuineness of these receipts and places little weight on these receipts.

17    At [122], the Tribunal said that it was not satisfied that the visa applicant and the review applicant had stayed together at the hotels in Cambodia, in part “because of the concerns the Tribunal has about the genuineness of the hotel receipts from Asia Hotel.”

The primary judgment

18    At [36] and following, the primary judge reasoned as follows (omitting citations):

36.    … First, this is not a case where Ms Ly’s credibility was so gravely damaged prior to the submission of the documents in issue that they could not have made any difference to the outcome. The Tribunal made clear at its hearing that it was concerned that Ms Ly had not provided any documentary evidence of her asserted hotel stays in Cambodia. The Tribunal’s concern was repeated several times.

37.    At [87] the Tribunal states that it provided additional time for further evidence and submissions to be made. The Tribunal notes at [89] that hotel receipts for the Asia hotel in Phnom Penh for various dates were provided. The Tribunal further notes at [92] that it wrote to Ms Ly on 30 August 2016 to invite comment on what the Tribunal saw as inconsistencies in the evidence, including oral evidence given by Ms Ly and the visa applicant about the asserted hotel stays.

…

39.    It is clear from the Tribunal’s reasons that it had a number of concerns about the asserted relationship between Ms Ly and the visa applicant. The question of whether Ms Ly and the visa applicant stayed together at a hotel in Cambodia on particular dates need not logically have assumed particular significance in view of the Tribunal’s other concerns. However, the Tribunal gave that issue particular significance. …

40.    By that reasoning, the Tribunal elevated to the status of important issues in the review, the inconsistencies in the evidence between Ms Ly and the visa applicant about the asserted hotel stays and the genuineness of the hotel receipts provided by Ms Ly. Having elevated those two issues to the status of important issues in the review, procedural fairness (either under s.360 or the general law) required the Tribunal to invite comment on those issues.

41.    The Tribunal did invite comment in its letter dated 30 August 2016 on the issue of the inconsistent evidence. It appears from that letter that the Tribunal proceeded on the basis that the letter was required by reason of s.359A of the Migration Act. It would follow, by extension of that reasoning, that the Tribunal may have laboured under the misapprehension that nothing was required in relation to the authenticity of the hotel receipts because those were documents provided by Ms Ly to the Tribunal. However, it is in my view highly doubtful that s.359A of the Migration Act required the written invitation to comment in relation to the inconsistent oral evidence. That is because inconsistencies in evidence are not in themselves information for the purposes of s.359A.

42.    In my opinion, either s.360 or the general law required the invitation to comment on the inconsistencies rather than s.359A. I am fortified in that view by the reasons of the Full Federal Court in Minister for Immigration v SZMOK at [65].

43.    In the present case, it was not a jurisdictional error by the Tribunal to apply the wrong statutory provision in sending the letter. The error arises because the Tribunal confined its invitation to comment too narrowly. The difficulty is that while procedural fairness required an invitation to comment or respond to the two issues identified by the Tribunal at [122] (the inconsistent oral evidence and the dubious hotel receipts), the Tribunal’s letter of 30 August 2016 only dealt with the first issue. It needed to deal with both. It did not. The failure of the Tribunal to raise with Ms Ly the issue of the veracity of the hotel receipts goes to jurisdiction, given the significance of that issue to the Tribunal. It follows that the Tribunal fell into jurisdictional error by failing to raise the issue with Ms Ly.

19    The key statutory provision referred to by the primary judge was as follows:

360    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 359C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

20    The decision of the Full Court referred to by the primary judge is Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; 247 FCR 404.

Submissions

21    The Minister submitted that the Tribunal was not obliged to do any more than it did in relation to the issue of what weight was to be given to the hotel receipts (or their veracity). There was no breach by the Tribunal of procedural fairness as in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; 204 ALR 624 (French J) at [56], or of s 360 of the Migration Act understood in the light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152.

22    The Minister submitted that the delegate had already raised the issue of whether the visa applicant and the review applicant had been living together during hotel stays in 2012, 2013 and 2014 and of whether they had, or would have, common living arrangements.

23    The Minister submitted that the Tribunal recorded in its reasons that it informed the review applicant that it had “not seen any of the documentary evidence of hotel stays” (at [29]) and “has not seen hotel receipts that they stayed together” (at [43]), though “[T]he review applicant stated that she has the receipts” (at [43]). Also, at [72], the Tribunal noted that it informed the review applicant of a number of areas of “lack of documentary evidence supporting what she is saying”, including that the Tribunal “has not seen evidence that they stayed together in hotels”.

24    The Minister submitted that the letter of 30 August 2016 paraphrased this difficulty noted by the delegate in relation to the evidence regarding the hotel stays and the same letter put the review applicant on notice that the evidential “inconsistencies” may lead the Tribunal to conclude that she and the visa applicant “are not telling the truth about the inception and development of (their) relationship”, or “have fabricated the history of (their) relationship” and “do not intend to genuinely live together as spouses”. The hotel receipts – which had been supplied to the Tribunal by letter dated 26 May 2016 from D’Ambra Murphy Lawyers – were not mentioned in that letter. However, the Minister submitted, the review applicant ought already to have been aware from what had been said by the delegate and by the Tribunal during the hearing that there was an issue about whether the review applicant and the visa applicant had stayed together in hotels and that the Tribunal was interested in receipts or supporting evidence in relation to that question.

25    The Minister submitted that it was obvious from those Asia Hotel receipts – particularly given the expressed doubts of the delegate and of the Tribunal that led to the recepts being copied to the Tribunal – that an issue may arise whether the various receipts were contemporaneous as at the dates that they bore, or worthy of persuasive weight, when they were in the same hand and were only produced to a decision-maker after the hearing. An issue, or conclusion, which is “obviously open” from the “known material” is not one that needs to be specifically raised by the Tribunal with the review applicant: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at 599 [9] per French CJ and Kiefel J; Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-592; SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; 140 ALD 11 at [37]. That was the case here, it was submitted, so his Honour erred in finding a breach of procedural fairness.

26    The Minister submitted that the primary judge also erred in holding a breach of s 360. As long as the Tribunal raised issues that had already been raised by the delegate or that were obvious on the known material, the Tribunal did not need to expose its thought processes or provisional views for comment before making its decision: SZGUR at 599 [9] per French CJ and Kiefel J, applying: Alphaone at 591-592; SZBEL at 161-162 [29]-[32] per Gleeson CJ, Kirby Hayne, Callinan and Heydon JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 at 219 [22] per Gleeson CJ, Gummow and Heydon JJ and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at 117-118 [194] per Kirby J.

27    Here, the Minister submitted, the Asia Hotel receipts, which came to the Tribunal from the review applicant’s solicitors, were obviously known to the review applicant.

28    Also, those receipts were “additional evidence about an extant issue” rather than a “new or additional issue”, in the sense discussed in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at 505 [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ, such that the present case was distinguishable from SZBEL. No new issue, such as to create an obligation of the kind found in SZBEL, arose simply because evidence was produced by a review applicant to the Tribunal as to a known issue (here whether the visa applicant and the review applicant shared their lives, or stayed in the hotel together on these occasions) and that evidence had features on its face which might rationally affect the weight to be given to it. The dates and the handwriting were such features. One possibility was that all of the receipts were prepared at the same time by the same person. If the documents had in fact been created at the same time, then, that obviously might give rise to a question as to the weight to be given to the receipts as evidence that the visa applicant and the review applicant had each stayed in the hotel together on the nights mentioned. There appeared to have been no evidence, separate from the receipts themselves, of when exactly they were produced or upon what information. Also, the Tribunal’s assignment of “little weight” to the receipts appeared (from what the Tribunal said at [114]-[115]) to have been based not simply upon those features of the documents, but also upon the evidence and findings recorded by the Tribunal in those paragraphs.

29    The Minister submitted that his appeal was also supported by SZMOK at 419 [68], where Emmett, Kenny and Jacobson JJ (distinguishing WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511) held that “while the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document”. The Minister submitted that this was not a case where the receipts were found to be a forgery or not “genuine” (cf WAJR at [56]). The Tribunal used the language “little weight”. The Tribunal certainly expressed (at [115]) “concerns about the genuineness of these receipts”, but it did not find them fraudulent or fabrications. Rather, it appeared to give greater weight to other evidence, including its satisfaction (also at [115]) that: “if the visa applicant had stayed with the review applicant at the hotel, it is reasonable to expect that he would give that answer at an interview. However, he did not”.

30    The Minister submitted it was essentially a matter for the review applicant to put forward what evidence she wished to support her case and for the Tribunal to be satisfied or not satisfied – it having no obligation to challenge or cross-examine upon the deficiencies that it perceived in the evidence put forward (see Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at 1918 [57] per Gummow and Heydon JJ, Gleeson CJ relevantly agreeing at [1]).

31    The review applicant submitted the primary judge was correct to hold that the Tribunal breached s 360 or its obligations of procedural fairness. That finding was consistent with well-established authority of this Court.

32    She submitted that the short point was that the Tribunal contravened those obligations as follows:

a.    an issue before the Tribunal was whether the review applicant and the visa applicant had stayed together at a hotel known as “Hotel Asia” in Cambodia. This was relevant to the question of whether they genuinely intended to live together as spouses (which was a criterion of the visa);

b.    at the Tribunal hearing on 18 May 2016, the Tribunal asked if there were receipts from the Hotel. The review applicant said that she had receipts;

c.    on 26 May 2016, the receipts were provided to the Tribunal. The form of evidence admitted in the Court below was black and white copies of the receipts;

d.    on 30 August 2016, the Tribunal wrote to the review applicant to draw certain inconsistencies to her attention and seek comment. No issue was raised about the receipts;

e.    on 23 September 2016, the review applicant provided a detailed reply to the 30 August 2016 letter;

f.    understandably, in answering the Tribunal’s 30 August 2016 letter, the review applicant did not say anything further about the genuineness of the receipts, because that was not an issue that was raised in the letter;

g.    the Tribunal affirmed the delegate’s decision, and a critical aspect of its reasoning turned on a doubt that the receipts were genuine.

33    In these circumstances, the review applicant submitted, she was not given an opportunity to present evidence or make arguments about the genuineness of the receipts. The unfairness was obvious, it was submitted. And the cases made clear that this was a recognised class of a practical injustice giving rise to jurisdictional error.

34    The review applicant submitted that the Tribunal therefore breached the rules of procedural fairness by acting on its concerns as to the receipts without warning where the issue of whether the receipts were genuine was not obvious: Alphaone at 592.

35    The review applicant submitted there was a well-established line of authority that if a Tribunal had concerns about documents provided after a hearing, procedural fairness required that those concerns be raised with an applicant: WAJR at [56] per French J.

36    The review applicant submitted that French J went on to hold, in that case, that because the documents were provided after the hearing, s 422B did not place any limits on the rules of procedural fairness, or alternatively s 425 was breached - either way, jurisdictional error was made out: WAJR at [57]-[59]. A finding to similar effect was made by the Full Court in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [103]-[104].

37    The review applicant submitted that these authorities applied directly to the facts of this case.

38    She submitted that while it may be accepted that weight to be given to evidence was a matter for the Tribunal, the present case concerned the failure of the Tribunal to put an issue critical to its decision to her. The relevant question was about the Tribunal’s processes, not its actual decision: SZBEL at [25].

39    Contrary to the submissions on behalf of the Minister, the review applicant submitted, the receipts did not suffer from “deficiencies” that were “obvious”. To the contrary, there was an obvious explanation, consistent with the documents being genuine, why hotel receipts from the same hotel might be written in the same hand.

40    Further, the issue of obviousness was not raised by the appellant in the Court below. This was of significance because the documents were in fact provided to the Tribunal in colour. One could see that the receipts from 2010 and 2012 were blue, and the later receipts were in brown, and on a slightly different form. These were not issues agitated before the primary judge, and affected the question of obviousness.

Consideration

41    A matter which appears to be in dispute is whether the Tribunal doubted that the receipts were genuine. In our view it is clear that the Tribunal did make that finding at [115] and for that reason placed little weight on the receipts: see also [122] of the Tribunal’s reasons. More importantly, the Tribunal doubted that the receipts were genuine at least in part, if not wholly, because they were dated different years but appeared to be in the same handwriting.

42    In our opinion this is the same as the point dealt with by French J in WAJR at [56], where his Honour distinguished between a mere lack of satisfaction about the reliability or genuineness of particular documents, on the one hand, and where, on the other hand, there was a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents that they were concocted. His Honour said:

[56]    It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.

43    In Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [103] the Full Court cited this paragraph with approval.

44    In our opinion, the submission on behalf of the Minister that the review applicant ought already to have been aware from what had been said by the delegate and by the Tribunal during the hearing that there was an issue about whether the review applicant and the visa applicant had stayed together in hotels, and that the Tribunal was interested in receipts or supporting evidence in relation to that question, highlights the problem rather than resolving it. We understand it to be common ground that the Tribunal regarded the receipts as important.

45    We do not accept the Minister’s submission that it was obvious from the Asia Hotel receipts that an issue may arise whether the various receipts were contemporaneous as at the dates that they bore, or worthy of persuasive weight, when they were in the same hand and were only produced to a decision-maker after the hearing. As we have indicated, any issue as to the genuineness that the Tribunal had in mind from the appearance of the hotel receipts supports, if not requires, the need for that matter to be brought to the attention of the review applicant. Presumably the Tribunal’s thinking was that the visa applicant had readily to hand blank printed receipts from the Asia Hotel, in different colours and different typefaces over the years 2010 and 2012 as compared to 2013, 2014 and 2015 and different email addresses for the hotel which she could readily fill in, together with her apparent signature and the apparent signature of the visa applicant. This confirms, in our opinion, that the Tribunal should have given the review applicant an opportunity to be heard as to the genuineness of the receipts on the basis that, although dated different years and in different printed formats, they appeared to be completed in the same handwriting.

46    We do not accept the suggestion in the Minister’s submission at [19] that the issue of whether the hotel receipts were genuine was immaterial to the Tribunal’s decision. The reasoning of the Tribunal, particularly at [115] and [122], shows that the issue was material.

47    We agree with the conclusion of the primary judge, although on a narrower basis.

48    As French J explained in WAJR at [57]-[59], s 422B did not exhaustively state all of the requirements of the natural justice hearing rule in relation to Div 4 of Pt 7 of the Migration Act. His Honour reasoned that was because of the statutory words of qualification which limited the exhaustiveness of the statement in s 422B (about Div 4 being “in relation to the matters it deals with”). His Honour found, as set out at [42] above, that Div 4 of Pt 7 did not deal with an issue such as the present. In our opinion, s 422B is analogous to s 357A in relation to Div 5 of Pt 5 of the Migration Act.

49    We do not understand it to be in issue that this reasoning of French J in WAJR that, in the context of Pt 7 Div 4, s 422B did not relevantly place any unstated limits on the rules of procedural fairness, or alternatively that s 425 was breached, applied to the presently relevant provisions in Pt 5 Div 5, that is, ss 357A and 360.

50    We do not accept the Minister’s submission that the Tribunal’s reasoning was merely evaluative so as not to require the Tribunal to raise with the review applicant its concerns as to the genuineness of the documents. There is a gap of substance between the receipts being provided when they were provided and the apparently identical handwriting, on the one hand, and the issue of genuineness, on the other hand. Similarly we do not accept that the Tribunal’s reasoning was commentary, merely evaluative or obvious, within the meaning of Alphaone at 591-592, SZGUR at [9] or SZBEL [47].

51    The Minister relied on the reasoning of the Full Court in SZMOK as follows:

[68]    While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO’s Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64]). WACO’s Case does not establish any new principle.

We do not regard what the Full Court there said as inconsistent with what French J said in WAJR. The Full Court was saying that there was no general rule but that it was necessary to look at the circumstances of each case. With respect, we agree. What is procedurally fair or unfair in relation to a finding that a document is not genuine depends on the procedures adopted, including whether the Tribunal had sufficiently alerted an applicant to doubts it had about the genuineness of documents submitted by him or her. Similarly, it is not always a jurisdictional error for the Tribunal to reject corroborative evidence, including of a documentary kind, on the basis of its views of an applicant’s credit.

52    The Minister also relied on SZKTI at [51] to the effect that the issue of the genuineness of the receipts concerned additional evidence about an extant issue, being here whether the review applicant and visa applicant stayed at the hotel together. As the High Court there said, whether an issue must be raised will depend on the circumstances of each case. In our opinion, the paragraphs of the Tribunal’s reasons relied on by the Minister show that the Tribunal wanted to see receipts, rather than there being an issue about the genuineness of the receipts when they were produced. We also observe that SZKTI did not concern the genuineness of documents.

Conclusion and orders

53    We would dismiss the appeal, with costs.

Associate:

Dated:    8 August 2018