FEDERAL COURT OF AUSTRALIA

Vo v Minister for Home Affairs [2019] FCAFC 108

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court made on 5 December 2018 concerning the appellant's application for review by the second respondent made on 20 September 2016 be set aside and the matter be remitted to the second respondent for determination according to law.

3.    The appellant's costs of the appeal and of the proceedings in the Federal Circuit Court be paid by the first respondent to be assessed if not agreed.

4.    The costs of the appeal be assessed on a lump sum basis if not agreed.

5.    If it is necessary to fix costs then:

(a)    the appellant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the first respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum.

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

REASONS FOR JUDGMENT

THE COURT:

1    Ms Tung Long Thi Vo is a United States citizen. She is 56 years old. Her son Mr Ricky Nguyen applied for and obtained a visa to allow him to live and work in Australia. Ms Vo applied as a secondary applicant for a visa on the basis that she was a member of Mr Nguyen's family unit and she was within cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly for present purposes a person is a member of the family unit of another person (referred to in the regulation as 'the family head') if the person is a relative of the family head (or their partner) and (a) does not have a spouse or de facto partner; (b) is usually resident in the household of the family head; and (c) is dependent on the family head: reg 1.12.

2    Regulation 1.05A of the Migration Regulations provides that a person (the first person) is dependent on another person if:

(a)    at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

(ii)    the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b)    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

3    Ms Vo was born in Vietnam. She travelled to the United States in 2002 under a humanitarian program as a refugee. She travelled with her son, Mr Nguyen. The material provided by Ms Vo in support of her application was to the effect that since 1989 when she was divorced from her husband, she had been living with Mr Nguyen.

4    Whilst in the United States, Ms Vo was provided with government assisted housing and food stamps. During that period she and her son lived in several locations in Massachusetts. Ms Vo says that she does not own any property in the United States and receives no payments from the US Government.

5    In 2009, Mr Nguyen came to Australia and applied for a permanent visa which was granted in 2015.

6    Ms Vo effectively moved to Australia in 2009 to be with her son. It appears that she no longer maintains any residence in the United States. That said, prior to her application for a visa as a dependent relative of Mr Nguyen her presence in Australia was pursuant to successive three month tourist visas.

7    In recent years, Ms Vo has visited Australia 15 times on a tourist visa and when she has been in Australia she has lived with her son. The rest of the time she has lived in Vietnam with her older brother. She says that she does not work and that her son pays for everything including her travel between Australia and Vietnam.

8    The visa application by Ms Vo was refused by a delegate of the Minister. Ms Vo sought review in the Administrative Appeals Tribunal. However, the Tribunal affirmed the decision not to grant Ms Vo a visa.

9    Before the Tribunal there was evidence to the effect that Mr Nguyen had borrowed money from other family members to pay for airfares. There was other evidence as to the financial circumstances of Ms Vo and how she obtained food, clothing and shelter. The Tribunal accepted that Mr Nguyen paid for private health insurance for his mother when she was in Australia and that Mr Nguyen paid the rent on his home in Australia.

10    The reasoning by the Tribunal rested on the following steps:

(1)    Ms Vo did not have a spouse or de facto partner;

(2)    when Ms Vo is in Australia she was usually resident with her son;

(3)    a person could not be 'wholly or substantially reliant' on more than one person for the purposes of reg 1.05A;

(4)    a person is not substantially reliant on a particular person unless they are predominantly or primarily, essentially or in the main dependent on that person;

(5)    dependence does not carry any implication of necessity or lack of choice;

(6)    the Tribunal had concerns about the credibility of the evidence given by Ms Vo, particularly evidence as to support provided by Mr Nguyen for Ms Vo when she was in Vietnam;

(7)    between 2009 and 2016 Ms Vo had spent 24% of her time away from Australia;

(8)    the time spent overseas was not insubstantial;

(9)    when Ms Vo is in Vietnam she was not wholly or substantially reliant on Mr Nguyen for shelter, food and clothing; and

(10)    therefore, Ms Vo did not meet the requirements of reg 1.12.

11    Significantly, the Tribunal did not make a finding as to whether, when Ms Vo is in Australia and resident with Mr Nguyen she is wholly or substantially reliant upon her son. Rather, the Tribunal approached the matter on the basis that its findings to the effect that there was a 'not insubstantial' amount of time when Ms Vo was in Vietnam and not reliant on her son meant that she was not dependent upon Mr Nguyen. This is a conclusion that could only be reached, in the context of the Tribunal's reasoning, by applying the Tribunal's view that reg 1.05A can only be satisfied if the person is dependent upon only one person.

12    So, necessarily implicit in the Tribunal's reasoning was a view that reg 1.05A does not apply where a person is wholly or substantially reliant on more than one person. Put in the factual context of the present case, Ms Vo could not satisfy reg 1.05A by showing that she was reliant on Mr Nguyen (the primary visa holder and the family head) when in Australia (where she spent about three-quarters of her time), but was not so reliant when in Vietnam (where she spent about one-quarter of her time).

13    For reasons stated below, the Tribunal's view was incorrect. As a result of that view, the Tribunal failed to discharge its statutory task which was to determine the visa application of Ms Vo by reference to the criteria specified in the Migration Regulations. Therefore, the error was jurisdictional. Strictly speaking it is not necessary to consider further grounds of appeal concerned with the approach of the Tribunal to fact finding. However, one of those grounds has also been established. Therefore, the appeal should be allowed with costs and the matter should be remitted to the Tribunal for determination according to law.

The proper interpretation of regulation 1.05A

14    The terms in which reg 1.05A are expressed contemplate an inquiry as to whether a person (the claimed dependent) is reliant upon a particular other person (the primary visa applicant). However, they also contemplate that a person may be wholly or substantially reliant on more than one other person in which case it is necessary to consider which of those other persons the dependent person placed greatest reliance upon: see para (a)(ii). If reg 1.05A required a person to demonstrate reliance upon a single other person (to the exclusion of any other person) in order to demonstrate dependence then no purpose would be served by the provision in para (a)(ii). It is plainly included for the purpose of dealing with the case where a person is reliant upon more than one person for support. Paragraph (a)(ii) has the effect of identifying a single other person on whom any person may be dependent for the purposes of the definition, namely the other person on whom the greatest reliance is placed for financial support. However, it does not require that a person be dependent upon only one person in order to come within the definition.

15    Further, the terms in which para (a)(ii) is expressed indicate that the language 'wholly or substantially reliant' as used in para (a)(i) does not mean mostly reliant in the sense that at least half the support required by the dependent person is provided by the other person. If para (a)(i) was intended to apply in that manner then again para (a)(ii) would be redundant. It would mean that the reliance described in para (a)(i) would be confined to instances where more than half the relevant support was provided by the other person. Therefore, there could never be a case where the additional support from another person could be greater than any reliance on the first person.

16    The word substantial is a word of wide semantic breadth. When used to refer to the size or quantity of something then, depending on the context, it can mean considerable or large or it can mean ample or of substance (in the sense of being something more than nominal) or having a real existence. It can connote a degree of occurrence or magnitude that is meaningful or relevant having regard to the subject matter. It is often deployed in circumstances where a form of qualitative evaluation that is not readily reduced to numerical or quantitative assessment is required. However, it is not confined to such contexts because it may be used to refer to a substantial amount, but usually where the precise amount is not known. The imprecision inherent in the meaning and the need for a contextual interpretation has been recognised in various instances: see, for example, Hembury v Chief of the General Staff [1998] HCA 47; (1998) 193 CLR 641 at [22] (where the view was expressed that a substantial miscarriage of justice in a military tribunal is one that is real or of substance as distinct from ephemeral or nominal rather than one that is large or weighty (McHugh J)); Kalbasi v Western Australia [2018] HCA 7 at [16] (where it was said that it is not possible to describe the metes and bounds of wrong decisions that will occasion a substantial miscarriage of justice on an appeal in a matter where there has been a trial by judge and jury (Kiefel CJ, Bell, Keane and Gordon JJ)); Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [41] (where the phrase substantial lessening of competition was said to refer to substantial in the sense of being meaningful or relevant to the competitive process, noting a range of views in footnote 67 (Gummow, Hayne and Heydon JJ)); and IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458 at [154] (where, in the course of considering whether there was a breach of copyright by copying a substantial part of a work, reference was made to a competition law authority where the word substantial was described as being susceptible of ambiguity and a word calculated to conceal a lack of precision and there was emphasis on the need for a qualitative assessment of the degree of copying (Gummow, Hayne and Heydon JJ)).

17    The requirement that the person be substantially reliant on the other person should be construed, in the context of para (a)(ii) and the subject matter of reg 1.05A in dealing with dependence, as requiring a meaningful degree of financial reliance on a person to an extent that the person might properly be described as being dependent on that person (as distinct from simply receiving some assistance from that person) for basic needs. There must be a degree of confidence or trust in the support and it must be sufficient that without the extent of support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met.

18    Substantial reliance may be placed upon a number of people each of whom may provide some financial support in order to meet basic needs for food, clothing and shelter. By the terms of para (a)(ii), reg 1.05A directs attention to identifying the person who provides the greatest amount of such support. It is only that person who is a person upon whom a person may be dependent for the purposes of the Migration Regulations (where the regulation uses the term 'dependent').

19    For all those reasons, a necessary conclusion from the terms of reg 1.05A considered in context is that 'substantial reliance' for financial support does not mean 'predominant or primarily', 'essentially' or 'in the main'. The submissions for the Minister that the words 'wholly or substantially reliant' in para (a)(i) should be read, in effect, as meaning only reliant on one other person to the exclusion of any other (even if not wholly reliant on that other person), alternatively at least reliant to an extent that is more than 50% should be rejected.

20    Further, it is necessary to keep steadily in mind that the definition stated in reg 1.05A has both a temporal and qualitative element. The temporal element is that period being 'a substantial period immediately before' the time 'when it is necessary to establish whether the first person is dependent on the other person'. The qualitative element is the degree of dependency or reliance. Therefore, in order to satisfy the clause, the person claiming to be a dependant must show that during the relevant period they were wholly or substantially reliant on the first person. Further, it must be shown that at the time when it is necessary to establish dependency, the reliance on the first person was greater than the reliance on any other person.

Reasoning of the primary judge and the decision in Fernandez

21    In the present case, the primary judge reasoned that the definition of dependent 'envisages one person being reliant on one other person': Vo v Minister for Immigration and Border Protection [2018] FCCA 3609 at [17]. It appears that, as a result, the primary judge formed the view that where a person is reliant on more than one person then they cannot be a dependent. In so doing, the primary judge was agreeing with the view as to the meaning of reg 1.05A that was applied by the Tribunal. For reasons we have given, such an approach is in error.

22    The primary judge proceeded on the basis of his own earlier decision in Fernandez v Minister for Immigration and Border Protection [2015] FCCA 1698 (which had been referred to by the Tribunal). However, Fernandez was concerned with a different issue that does not arise in the present case, namely whether a person can satisfy the definition of dependent under reg 1.05A in respect of two persons at the same time.

23    The decision of the primary judge in Fernandez went on appeal: Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265; (2015) 238 FCR 251. The matter was considered by Robertson J. His Honour recited the way in which the matter had been dealt with by the Tribunal: at [3]-[16]. The Tribunal found that Mr Fernandez came to Australia on tourist visas on a number of occasions. He stayed with his nieces who lived in separate homes. Both nieces were Australian citizens. When in Australia, his expenses would be met by the niece with whom he was staying. When not in Australia, Mr Fernandez lived in Uruguay.

24    Mr Fernandez was sponsored for a visa by only one of his nieces. The Tribunal was not satisfied that the sponsoring niece provided any support for Mr Fernandez when he was in Uruguay. Rather, it was the other niece who provided support when he was in Uruguay. When in Uruguay, Mr Fernandez was reliant on that support together with a pension.

25    The Tribunal found that when in Australia, Mr Fernandez was supported by both nieces equally, but when in Uruguay he was not supported by the sponsoring niece and on that basis he was not reliant on the sponsoring niece for support.

26    The visa applied for in that case was sought on the basis that Mr Fernandez was an aged dependent relative of an Australian citizen. The specified criteria for the visa included a requirement to that effect. In addition the criteria required, amongst other things, that the visa applicant is sponsored by 'the Australian relative'. Mr Fernandez did not apply for a visa on the basis that he was a secondary applicant who was a member of a family unit.

27    Fernandez was concerned with a claim that a person could be dependent upon each of two persons for the purposes of being an aged dependent relative of an Australian citizen. The answer to that question turned upon whether Mr Fernandez could rely upon his dependence on both his sponsoring niece and his other niece. Mr Fernandez was seeking to demonstrate reliance upon two Australian citizens when the criteria concerned whether he was a dependent of a particular sponsoring relative who was an Australian citizen.

28    It was in the above context, that the primary judge had reasoned in Fernandez that dependence was to be evaluated by reference to 'the other person' (namely, the person who was the Australian relative sponsoring the visa application). However, it was not suggested in Fernandez that Mr Fernandez could not get a visa because he was dependent upon more than one person. He had to demonstrate dependence upon his sponsoring niece (and not the other niece and not both of them). However, in considering whether he had done so, there was no suggestion he could not meet the definition because his support came from more than one person.

29    In that context, Robertson J expressed the view that, as then advised, his Honour was not persuaded of the correctness of a position that a person could only be sponsored by one person for an aged dependent relative visa: at [92]. However, the application for review and the appeal turned upon a claim that Mr Fernandez had more than one sponsor. This claim was rejected by Robertson J: at [68]-[69].

30    All of which is to show that Fernandez was not relevant to the issues before the Tribunal and the primary judge on the application for review to the Federal Circuit Court in the present case.

Grounds 1 and 2

31    Grounds 1 and 2 complained about the approach of the primary judge and the Tribunal to reg 1.05A. Ground 1 complained that the primary judge should have found jurisdictional error by the Tribunal in finding that the other person in the definition of dependent could only refer to one person. In context, we take this ground to be a complaint that the Tribunal proceeded on the basis that a person who was dependent on more than one person could not satisfy the definition. This is how the matter was dealt with orally. For reasons we have given this error in the reasoning of the primary judge has been made out.

32    Necessarily that erroneous construction had the consequence that the Tribunal did not ask itself the correct question for the application of the test. That is a jurisdictional error because it amounted to the Tribunal asking itself the wrong question when attempting to ascertain whether the appellant was a dependent of Mr Nguyen: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and Tsvetnenko v United States of America [2019] FCAFC 74 at [34]-[35].

33    Ground 2 complained about the failure of the Tribunal, as required by reg 1.05A, to consider the evidence relating to Ms Vo's dependence upon Mr Nguyen when in Australia. For reasons we have given, that ground has been made out. Having found that there was no dependence on Mr Nguyen by Ms Vo when she was in Vietnam, the Tribunal went no further and treated its finding about financial support of Ms Vo while in Vietnam as determinative. This approach was in error. It was informed by a misunderstanding of reg 1.05A.

34    For the Minister it was submitted that the Tribunal had considered the evidence in relation to the support given by Mr Nguyen to Ms Vo when in Australia and its findings that Ms Vo was not dependent upon Mr Nguyen were based upon a consideration of all of the evidence. However, counsel could not demonstrate any point in the reasons of the Tribunal where there was a finding to the effect that Mr Nguyen did not support Ms Vo when she was in Australia. The Tribunal did express adverse views about the credibility of the evidence of Ms Vo. However, the Tribunal did find that it was satisfied that when Ms Vo is in Australia 'she is usually resident with' Mr Nguyen (para 62). Then, when it came to the critical findings, they were confined to dependence when in Vietnam and therefore were not based on all the evidence. They were expressed in the following terms (at paras 74-78):

The Tribunal finds that the applicant's time overseas is not insubstantial. According to the applicant's evidence when she is not in Australia she resides in Vietnam.

The Tribunal finds that when the applicant is in Vietnam she resides with her elder brother. Looking at the period since the applicant first arrived in Australia the Tribunal finds that when the applicant is in Vietnam she is not wholly or substantially reliant on the primary applicant for shelter.

The Tribunal has also had regard to the applicant's claims that when she is in Vietnam she relies on charity for clothing and food. The Tribunal finds that this evidence is not consistent with the applicant's claim that she is dependent on her son for food and clothing when she is in Vietnam.

The Tribunal has also considered the applicant's claim that her son has given her money to spend on food and clothing when she is in Vietnam. The Tribunal finds however that the only evidence of payment being made to the applicant are nine $100 deposits in the period 20 October 2015 to 10 May 2016 (6 months 21 days). The Tribunal finds that this does not support the finding that the applicant is reliant on the primary applicant for food and clothing for a substantial period immediately before the time of the Tribunal's decision in this matter.

The Tribunal finds that the applicant does not meet the requirements of regulation 1.12(1)(e)(iii).

35    The primary judge was in error in failing to find jurisdictional error by the Tribunal in failing to consider evidence that formed a substantial part of the case advanced as to why Ms Vo was dependent upon Mr Nguyen. For those reasons, ground 2 has been established.

36    It may be that the Tribunal reasoned that reg 1.05A(1)(a)(i) requires that for the whole of the time during a substantial period immediately prior to the time of making the decision the first person must be wholly or substantially reliant on the other. On that construction it would follow that if there were any occasion when it could be said that the first person was not immediately reliant on the other person for financial support the clause would not apply.

37    That is a most unlikely conclusion when the issue is whether the first person is a dependent of the other. A person may be a dependent of another person even if, for regular holidays they live with another person who, during that time looks after them. In this respect, the language used needs to be considered holistically and the question is whether during that substantial period immediately prior to the making of the decision it can be said that the first person is wholly or substantially reliant on the other. It does not require constant and immediate reliance to satisfy that clause. The dependency for financial support during a period of time as described arises because the person could not meet basic needs for food, clothing and shelter during that period without the support of that other person. The fact that there may be some times within that substantial period that a person can look wholly or partly to another for support does not mean that they cease to be dependent on the other person providing support. Rather, throughout the period they are dependent on both. It would be alien to the concept of a dependent to suggest otherwise.

38    The above conclusions are sufficient to justify the relief sought on the appeal. However, for completeness we deal with grounds 3 and 4.

Ground 3

39    This ground relies upon the absence of consideration by the Tribunal of evidence from the appellant that every time she went to Vietnam Mr Nguyen gave her a significant amount of money as a basis for a claim of jurisdictional error. It is an error that seeks to invoke the ground of legal unreasonableness.

40    The Tribunal made a finding at para 77 as to the appellant's claim that Mr Nguyen gave her money to spend on food and clothing when she was in Vietnam and concluded that the only evidence was nine payments of $100. There was no mention of evidence given by Ms Vo that every time she went to Vietnam, Mr Nguyen gave her large sums of money in the order of $500, $700 or even $1,000. The Tribunal did express concerns about the credibility of the evidence of Ms Vo (para 67). However, it did not link those concerns to a rejection of the evidence of Ms Vo about receiving large sums of money from her son when travelling to Vietnam.

41    In the above circumstances, the Tribunal's finding that the only evidence was of the nine payments was said to be a finding that was not based on probative evidence and therefore was legally unreasonable.

42    Legal unreasonableness may be used as a compendious term to describe the various circumstances in which there may be jurisdictional error. However, ground 3 seeks to invoke the narrower conception of a decision that lacks the character of reasonableness necessary to meet the implied standard applicable to the exercise of statutory decision-making power. Breach of that standard is not established by demonstrating factual error in relation to a particular aspect of the material considered by the Tribunal. A factual finding made without any basis or which was inherently illogical will not found a claim of jurisdictional error unless it had a consequence for the overall outcome. Rather, it must be an error of a kind that infects the decision in a foundational sense such that the whole exercise of authority can be said to lack the requisite standard of reasonableness. As stated in Tsvetnenko at [83]-[85]:

Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [72]-[95] (Colvin J)).

However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

43    Where a complaint is made that there has been jurisdictional error by the Tribunal by reason of a breach of the implied standard of reasonableness in decision-making and the complaint is concerned with factual findings then the following matters pertain:

(1)    the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];

(2)    where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47];

(3)    unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]-[5];

(4)    it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant's evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];

(5)    generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;

(6)    the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];

(7)    in many instances, by reason of the nature of the Tribunal's statutory obligation to give reasons, it may be inferred that a failure to refer to a particular matter reflects the Tribunal's view that it was not material to its decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], [69] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (although the positon may be different where there is a failure to consider a factual issue that is an essential integer of a claim or that would be dispositive: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] and ETA067 at [14]);

(8)    mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];

(9)    a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];

(10)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and

(11)    there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]-[31].

44    As Allsop CJ said (Wigney J agreeing) in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12].

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

45    In this case, the Tribunal's reasoning process depended upon its finding about the extent of financial support provided by Mr Nguyen for his mother when she was in Vietnam. It concluded that 'the only evidence of payment' was the nine deposits of $100. This was not correct. It was an error as to the factual position. However, it was not an error as to the adjudication of the facts such as a wrong inference, or a dubious finding on credibility or a finding that might be thought to be against the weight of the whole evidence. It was an error as to what comprised the evidence that caused the Tribunal to make findings on the basis that the only evidence was the evidence of the nine payments when there was actually other evidence.

46    The consequence of the Tribunal's error about the state of the evidence was that the Tribunal reasoned to the conclusion that Ms Vo was not reliant upon her son for a substantial period immediately before the decision because he did not support her when she was in Vietnam. For reasons we have given, this conclusion was based upon an erroneous view of the dependency requirement that had to be met by Ms Vo. However, within the structure of the Tribunal's reasons, the view as to whether Mr Nguyen provided financial support for his mother when in Vietnam was crucial to the outcome. To make a finding on that key issue on the basis that it was the only evidence when in fact there was other evidence was a failure to consider evidence that went to a dispositive aspect of the decision under review. It might be characterised as a constructive failure to undertake the statutory task. It might be characterised as a failure to afford procedural fairness by considering matters advanced by an applicant for review. However, we are here concerned with whether it had the consequence that the Tribunal's decision failed to meet the implied statutory standard of reasonableness.

47    This is not a case of a failure by the Tribunal to refer to evidence in its reasons. In this case, the Tribunal expressly stated that certain evidence on a dispositive factual issue was the only evidence when there was other evidence. In those circumstances, it may be readily inferred that the Tribunal did not consider the other evidence. A decision made expressly on the basis that the evidence on a key issue was confined to certain evidence when it was not and then proceeding to conclude that the statutory requirement had not been met because of that finding is unreasonable in the requisite sense. The reasons given show that there was an error that was more fundamental than an analysis of the evidence with which this Court may disagree. It is an error that infects the outcome.

48    For those reasons, we uphold ground 3.

Ground 4

49    This ground invites merits review. The appellant submitted that the Tribunal had failed to take into account the evidence of Mr David Lam to the effect that Mr Nguyen took the appellant shopping and purchased food and groceries for both of them including personal items for the appellant. However, the Tribunal, whilst identifying that the appellant did not work and had said that her son paid for everything, also observed that it had not been provided with any invoices or receipts to support the claim that Mr Nguyen paid for her food and clothing in Australia or Vietnam. It is said that the failure to refer to the evidence of Mr Lam was a failure to deal with a clearly articulated argument advanced in support of the application. It is said that such an argument would or could be dispositive of the decision such that the failure to deal with it would be a jurisdictional error: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28], [30], [75], [77]. It is also said that this amounted to an error because there was a failure to state in the reasons whether the evidence was rejected and it was in relation to a material issue.

50    However, reading the reasons of the Tribunal as a whole, it can be seen that the Tribunal was not convinced that Mr Nguyen did in fact purchase clothing and personal items for his mother. It formed the view that there was significance in the failure to produce receipts for the kinds of purchases said to have been made by Mr Nguyen for Ms Vo. It is in that context that the failure to refer to corroborative evidence from Mr Lam is to be considered and a determination is made as to whether it supports the claim that there has been unreasonableness in the decision.

51    It does not follow from the failure to refer to the evidence of Mr Lam in the reasons that the Tribunal misapprehended the evidence in a manner that might be described as jurisdictional. Where there is a failure to refer to a matter in the reasons it may be inferred that the evidence has not been accepted or, in the present case, that it was not sufficiently corroborative as to support the claim that has been rejected. Whether that is the appropriate inference to draw depends upon the context. The Tribunal has no obligation to refer to every piece of evidence presented to it and its reasons need only express the basis for its conclusions on material questions of fact that support its conclusions: see, for example, the recent statement in ETA067 at [13]-[14]. Importantly, it was not the mere fact whether Mr Nguyen purchased essential items for his mother that was in issue. The question was whether the extent of those purchases demonstrated dependence by Ms Vo upon Mr Nguyen. The Tribunal did not accept that to be the case. It did so by a process of reasoning that did not require a detailed consideration of the extent of support provided by Mr Nguyen to Ms Vo when she was in Australia. So, the complaint raised was about the approach to a particular aspect of the Tribunal's fact-finding that was not determinative of the outcome. Further, whilst the manner in which the Tribunal approached its task was less than perfect, it did grapple with the particular issue and the case advanced.

52    For those reasons ground 4 has not been made out.

Conclusion

53    For the above reasons the appeal should be allowed and the decision of the primary judge set aside and instead it should be ordered that the matter be remitted to the Tribunal for determination according to law. As the appellant has been successful, the first respondent should bear the costs in this Court and before the primary judge. It is appropriate for the costs to be assessed on a lump sum basis if not agreed given the subject matter of the appeal and its confined nature.

Associate:

Dated:    25 June 2019