FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration and Border Protection [2015] FCA 701

THE COURT ORDERS THAT:

1.    The appellant have leave to file the amended notice of appeal dated 1 June 2015.

2.    The appeal be allowed.

3.    The orders dated 9 February 2015 of the Federal Circuit Court of Australia be set aside.

4.    A writ of certiorari be issued quashing the decision dated 24 January 2014 of the second respondent.

5.    The second respondent is directed to reconsider according to law the application for review dated as received on 9 May 2012.

6.    The first respondent pay the appellant’s costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

7.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal, Migration and Refugee Division”.

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

REASONS FOR JUDGMENT

Introduction

1    This appeal raises three primary issues. First, whether or not the surrogate procedural fairness provisions in the Migration Act 1958 (Cth) (the Act) relating to the conduct of a review by the Migration Review Tribunal (the Tribunal) apply not only to the person who has initiated the review by the Tribunal, but also to a visa applicant who has no standing to seek such a review. Secondly, did the Tribunal act unreasonably in the legal sense in failing to ask relevant questions of the visa applicant, Mr Phi Thanh Le (Mr Le), who was interviewed by the Tribunal? Thirdly, should the appellant be granted leave to raise a fresh ground of appeal, which was not run below, namely whether the Tribunal was required to act in accordance with procedural fairness requirements in respect of its questioning of Mr Le and, if so, whether relevant requirements were met?

Summary of background matters

2    The appellant is now a citizen of Australia. She emigrated to Australia from Vietnam in June 2009. The appellant married Mr Le in Vietnam on 30 June 2011. On 7 September 2011 Mr Le lodged with the Australian Consulate-General in Ho Chi Minh City an application for a Partner (Provisional) (Class UF) Visa (a partner visa). To obtain a partner visa, the decision-maker had to be satisfied inter alia that, both at the time of application and of decision, the visa applicant is the spouse of an Australian citizen (Migration Regulations 1994 (Cth) (the Regulations), Sch 2, cl 309.211 and 309.221). By s 5F(1) of the Act, for the purposes of the Act, a person is the spouse of another person if, under s 5F(2), the two persons are in a married relationship. Section 5F(2) provided:

(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;

(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    Provision was also made in s 5F(3) of the Act for regulations to be made in relation to the determination of whether one or more of the “conditions” in s 5F(2)(a)(b), (c) and (d) exist. The Regulations provided that certain matters had to be considered for this purpose as set out in reg 1.15A, the effect of which was to require the decision-maker to be satisfied that the visa applicant and spouse had a mutual commitment to a shared life as husband and wife and that their relationship was genuine and continuing. Regulation 1.15A relevantly provided:

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)(a), (b), (c) and (d) of the Act exist.

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

(a)    …

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

(c)    …

(d)    …

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).

(a) The delegate’s decision

4    The appellant sponsored her husband’s application for a partner visa. She provided a written statement dated 24 August 2011 of her relationship with Mr Le. She said that she first met him in June 2007 when she was sent by her parents to live in Nha Trang in Vietnam to learn a career. She said that she lived with her stepfather’s mother. Mr Le is her stepfather’s nephew. She said that she and Mr Le became friendly and that on 15 May 2008, after Mr Le had invited her to go to Nha Trang beach to celebrate her birthday, he kissed her and gave her a stuffed bear as a gift. She explained that she returned to live in Australia on 28 June 2009, having finished her training in Vietnam. She said that she missed Mr Le very much and purchased a phone card so that she could call him. She also said that they communicated through letters and phone calls. She said that when she returned to Vietnam again on 5 July 2010, she found that their feelings towards each other developed. She said that on a trip to Ba Lang, Nha Trang during that period, Mr Le proposed to her and that she promised to let him know her answer once she got back to Australia. She said that she left Vietnam to return to Australia on 14 August 2010 and that Mr Le and his family took her to the airport. She said that she and Mr Le kept close contact through letters and phone calls. She said that in April 2011, after considering his proposal, she accepted it and that both sides of the family made plans for a wedding ceremony. She said that she returned with her family to Vietnam on 27 June 2011 and that the wedding ceremony took place on 30 June 2011 at Hoang Lan Restaurant in Nha Trang and about 150 guests attended. She said that she and Mr Le spent their honeymoon in Da Lat. She explained that they signed their marriage certificate on 29 July 2011 and she returned to Australia on 1 August 2011 to continue her work and to proceed with the formalities for sponsoring her husband to join her.

5    Mr Le also gave a written statement dated 8 August 2011 in support of his visa application. Relevantly, he said that while they were living under the same roof at his grandmother’s house he worked at night as a night watchman at Van Thanh Ward. He said he would take the appellant to work in the morning and collect her in the afternoon. He said that he invited the appellant out on her birthday on 15 May 2008, that they went to the beach and had dinner there and that he gave her “a stuffed animal” and they exchanged a first kiss. He explained that their “love blossomed” during the next two years. He described how he took the appellant and her sister to the airport on 27 June 2009 for them to fly to Australia and that the appellant returned to see him in Vietnam on 5 July 2010. He said that people in the neighbourhood knew about their relationship and that he accepted an invitation from the appellant’s parents to go to her grandmother’s family in another city, where they stayed for one week. He said that he found that they were truly in love and that, shortly before the appellant was due to return to Australia, he proposed to her that they marry. He said that she said that she would give him an answer as soon as she got back to Australia. He said that they kept in touch through “mails and phone calls”. He said that in April 2011 the appellant accepted his marriage proposal and that they had their wedding ceremony in Vietnam on 30 June 2011. His description of the wedding was similar to that given by the appellant. He said that about 150 people attended the wedding which was held at Hoang Lan Restaurant in Nha Trang. He said that his wife returned to Australia on 1 August 2011.

6    Mr Le was interviewed by a Departmental officer in Vietnam on 10 November 2011. A transcript of that interview is in evidence. The transcript comprised notes by the Department of the interview. The notes are quite detailed. Key relevant matters are as follows:

(a)    when he was asked when he started working as a night watchman, Mr Le responded that it was around October 2010. He then said that he had previously studied how to install glass and build metal cupboards and that he “officially worked as a night watchman” the previous year (i.e. 2010) and that before that he was “a casual night watchman”. When he was asked when he had started as a casual night watchman, he said since 2007, when he was 16 years old. When asked whether he had any documents to prove that he had worked as a casual night watchman since 2007, he said that he did not and that he had only registered with “my local authorities that I wanted to do that job”;

(b)    when asked when his relationship with the appellant developed, Mr Le said “around [August] 2010”. When he was asked to expand upon that he explained that on the appellant’s birthday (i.e. 15 May 2008) he had given her “a teddy bear and a kiss”. When asked to explain why he said that their relationship had developed in August 2010 when that particular event happened in May 2008, Mr Le said that he had misunderstood the question and that their relationship became “serious” in August 2010. He then said that their relationship developed on 15 May 2008;

(c)    after Mr Le said that he had proposed marriage on August 2010, he was asked and answered various questions relating to the circumstances of that proposal, as is reflected in the following extracts from the Department’s notes of the interview:

Where were you when you proposed (sic) her?

We were at the beach in Nha Trang.

What day was it?

(Thinking) I can’t remember? I only remember it was in Aug.

Was there anyone there with you two?

No.

What time was it?

In the evening.

Did she accept?

She smiled and said she would answer me when she returned to Aa;

and

(d)    Mr Le was then asked various questions at the interview about his wife’s work and life in Australia, as is reflected in the Department’s notes of the interview:

What does she do in Aa?

Manicurist

Where does she work?

At the address in this name card.

How long has she worked there?

Since she went there.

How long after she arrived in Aa did she get the job?

Around 3 months.

What did she do in those 3 months?

She stayed at home doing housework.

Did she tell you about life in Aa when she first arrived?

She said the weather was different.

How different when she first arrived?

(Thinking. It seems Apr, May and Jun is cold). I’m not sure but she said it’s different.

Does she like the job she is doing now?

Yes.

Why does she like it?

It’s an easy job for women.

How many people are working at her shop?

4 or 5.

Are you sure?

Not sure. She told me she has two close friend Nga and Yen.

How far is it from her house to workplace?

1.5hrs by train.

What do you know about her work hours?

She said she works part time.

How many hours does she work a week?

She usually works on Tue, Thu and Fri. A few hours a day.

What does she do if she’s not working?

She stays at home, getting online to listen to music.

7    The Department’s written notes of the interview with Mr Le recorded several “initial concerns”. They included that, although Mr Le said that while they were living in the same house in 2007 and 2008, he took the appellant to work and picked her up in the afternoon as he worked as a night watchman during that time, his curriculum vitae stated that he had started working as a night watchman since 2009/2010. Furthermore, it was noted that a letter dated December 2010, which Mr Le wrote to the appellant, said that he had just got a job as a night watchman.

8    At the end of the Department’s notes of Mr Le’s interview, the following is recorded (noting that ‘SP’ refers to the appellant):

I need to tell you that we have a few concerns about your application:

1.    No evidence of contact or meeting each other in person before 2010.

2.    You said you worked casually as a night watchman in 2007 and started working officially as a night watchman since Oct 2010 but your CV shows that you worked as a night watchman in 2009, your letter to SP dated Dec 2010 shows that you just got a job as a night watchman besides your usual job. This info is not consistent.

3.    You claimed that your relationship developed on her birthday 15/5/2008 but in SP’s letters written to you on 19 Apr and 4 May 2011, she wrote her DOB and contact numbers at the end of the letters and you also wrote your DOB and contact numbers at the end of your reply letters.

-    We just wanted to remind ourselves of these dates.

4.    Your knowledge about SP’s personal circumstances is also limited given the time you claimed to know her in 2007 and have been in a relationship since 2008.

5.    No evidence of wedding ceremony at home and I’m not satisfied with your explanation on why you didn’t have one.

6.    You claimed that you contacted each other about 10 times this week via your mobile phone but no numbers from Aa have been found in your phone.

9    It is unclear whether these matters were put to Mr Le at the end of the interview, but it would appear that they were in the light of the response which is attributed to him in the notes regarding the third concern.

10    The partner visa application was rejected by the Minister’s delegate on 5 April 2012. In broad terms, the stated reasons for doing so were that:

(a)    although a statutory declaration by the appellant’s mother and stepfather had been provided which expressed opinions as to the nature of their relationship, this was given limited weight because it constituted third-party opinions and were not those of the appellant or Mr Le;

(b)    although the delegate accepted that there had been a wedding at a restaurant with about 30 people present (contrary to the claims by both the appellant and Mr Le that about 150 people attended), he was not satisfied that the parties’ relationship was socially recognised or that they held a wedding according to their religious beliefs and customs. After noting Mr Le’s explanation that they did not have a traditional ceremony because his paternal grandmother died a month before the wedding and his maternal grandmother was sick, the delegate noted that tradition dictated that no wedding ceremony should be held until the mourning period after a funeral had ended, which could be a month to three years. The delegate also noted that the death of Mr Le’s paternal grandmother had not been mentioned previously and that it had earlier been stated that the wedding day was a “good date and the two families has (sic) picked a date”. Nor was there anything to suggest that their relationship had been made public to family, friends or acquaintances amongst Mr Le’s community. No evidence was given that they presented publicly and socially as a couple or that their relationship was acknowledged and accepted;

(c)    there was no evidence to support their claim that they met each other in 2007 and developed a relationship in 2008 before the appellant migrated to Australia, nor was there any evidence that they had met or spent time with each other before the appellant migrated to Australia. There was no evidence of contact between them prior to December 2010 and there was inconsistent information in Mr Le’s statement and curriculum vitae regarding his job as a night watchman;

(d)    at his interview, Mr Le “showed poor knowledge about the sponsors’ (sic) personal circumstances and provided apparent rehearsed information on the actual development of their relationship”, which cast “significant doubt over the veracity of the evidence that has been provided supporting that the parties had genuinely entered into a committed relationship”;

(e)    when Mr Le was asked when his relationship with the appellant started, he gave inconsistent answers. When he was asked further questions, “he replied that he gave a teddy bear and a kiss to the sponsor on her birthday on 15 May 2008, which is written in exactly the same way in his statement”;

(f)    after it was clarified with Mr Le what was meant by developing a relationship, he “could not provide further information other than their relationship developed before the sponsor returned to Australia in August 2010”;

(g)    Mr Le “could not provide details of his proposal to his sponsor, as well as the circumstances in which she accepted his proposal”, notwithstanding that this lapse of knowledge took place only eight months after his proposal, which led the delegate to question the truthfulness of his claims and the genuineness of his account of the inception and development of the relationship;

(h)    when asked about how they maintained contact while the appellant was in Australia and he was in Vietnam, Mr Le said that they spoke on the telephone. He produced a phone card and the appellant’s “phone printouts from 12 August 2011 until 12 October 2011 showing mostly short calls on a weekly basis from August to September 2011, and one call in October 2011”. There were also 15 letters exchanged between December 2010 and July 2011. The delegate noted that “a quick check on [Mr Le’s] phone at the interview proved that the parties have not maintained contact as claimed by the applicant regarding the last call, and number of times they spoke to each other on the phone”. In addition, the delegate noted that Mr Le’s phone showed no calls or text messages from any numbers in Australia during the time claimed, which cast doubt over the veracity of the parties’ previous claims and evidence regarding ongoing contact; and

(i)    Mr Le demonstrated very limited knowledge of the appellant at the interview, such as being unable to say how the appellant’s life was when she first arrived in Australia or why she liked her job.

11    It might be noted that there are at least three errors or oversights in those reasons. First, contrary to the claim in [10(e)] above, Mr Le’s reply was not in exactly the same form as his earlier statement, which said that “I gave her a stuffed animal and a first kiss”, to which she “responded with a hot kiss that would tell she really loved me”. Secondly, the claim in [10(g)] that Mr Le could not provide details of his marriage proposal and the circumstances of the appellant’s acceptance is inconsistent with the information provided by Mr Le at his interview with the Department, as outlined in [6(c)] above. Thirdly, the inferences drawn by the delegate in [10(h)] from the fact that Mr Le’s phone showed no calls or text messages from any Australian numbers takes no account of Mr Le’s explanation during his interview that the appellant used phone cards to call him and that no Australian telephone number was disclosed.

12    The delegate summarised the reasons why he was not satisfied that Mr Le was the genuine spouse of the appellant in [8] of his reasons:

I am concerned about the lack of substantive evidence provided in this case; as this relates to a level of proof which I consider would be of significance in the relationship of a married couple. This lack of reliable evidence in the statements made by the parties lead (sic) me to conclude that the inception and development of the claimed relationship has not been presented in a truthful or accurate manner. I am therefore not satisfied that the relationship between the sponsor and the applicant is genuine.

(b) The Tribunal’s review

13    By an application for review dated as received on 9 May 2012 the appellant sought a review of the delegate’s decision by the Tribunal. Mr Le had no right to seek a review of that decision by the Tribunal notwithstanding that he was the visa applicant (see s 347(2)(b) of the Act).

14    By a covering letter dated 19 December 2013 and addressed to the appellant’s solicitor, the Tribunal invited the appellant to appear before it to give evidence and present arguments relating to the issues arising in the review. The Tribunal hearing was scheduled to take place on 14 January 2014. The appellant was asked to provide any further submissions or evidence at least three working days before the hearing. The letter was accompanied by eight pages of other documents.

15    One was a pro forma document headed “Response to Hearing Invitation” which was to be completed and returned. That form asked the appellant to indicate whether or not she would take part in the Tribunal hearing. Significantly, the form also indicated that the “Tribunal may wish to take evidence from Mr Phi Thanh Le”. The Tribunal requested Mr Le’s telephone contact details. There was also a statement on the form that the “Tribunal will contact [Mr Le] on this number during the hearing”.

16    The materials sent to the appellant’s solicitor on 19 December 2013 also included a separate letter dated 19 December 2013, addressed personally to the appellant. In this letter the Tribunal repeated that it might wish to take evidence from Mr Le, and the appellant was asked to include in her response a telephone number, preferably a landline number, on which the Tribunal could contact Mr Le during the hearing.

17    The appellant’s solicitor (and migration agent) responded to the Tribunal’s correspondence by a letter dated 10 January 2014, which enclosed the completed “Response to Hearing Invitation” form, and indicated that both the appellant and Mr Le would participate in the hearing (Mr Le by telephone from Vietnam) and included telephone contact details for Mr Le.

18    By a separate letter dated 10 January 2014, the solicitor and migration agent provided the Tribunal with further evidence of money being sent by the appellant to Mr Le, as well as a copy of multiple phone cards used to call Vietnam.

19    By a letter dated 14 January 2014 (i.e. the day of the hearing), the appellant’s solicitor and migration agent provided the Tribunal with a further written statement dated 13 January 2014 by Mr Le. Relevantly, that written statement included the following information:

(a)    an expression of disappointment by Mr Le and his wife at having the partner visa rejected which he thought was because they had not presented their relationship “clear enough” in circumstances where they “did not have much education therefore we were unable to make the Department understand our story”. He said that he hoped that his further statement would result in the Tribunal having “a better understanding of us”;

(b)    an explanation that, from June 2007 to June 2009, when they were living together with Mr Le’s grandmother, they went out together during the daytime usually to the beach or for a drink or ice-cream. He added that, at that time, he “had to join the people’s security team to help maintain security in the area (this is compulsory for young men who do not do the military duties and is not paid)”;

(c)    a reiteration that on the evening of the appellant’s birthday on 15 May 2008, he asked the appellant to go to the beach, wished her a happy birthday and then gave her “a soft toy bear”, and seeing that she was happy, he “took the opportunity and expressed my feelings” to her and they had their first kiss;

(d)    after stating that their feelings for each other became deeper with time, Mr Le said that they did not think of taking a further step in their relationship since they were still young and that in June 2009 he accompanied the appellant and her sister to the airport when they returned to Australia to join their mother;

(e)    Mr Le also said that he felt sad and missed the appellant and that they contacted each other through phone calls and letters. He also explained that at the end of 2009 the appellant found a part time “nail job” and therefore could not organise the time to return to Vietnam to visit him;

(f)    he said that when the appellant and her family returned to Vietnam on 5 July 2010, he collected them from the airport and that he and the appellant spent all their time together. He said that their feelings for each other were getting deeper and that they were then more mature. He said that, at that time, “everyone in my family and [the appellant] know about our relationship and they support us”;

(g)    he said that on 10 August 2010, while at Ba Lang Beach, he proposed to the appellant but she said that she needed time to think about it because she was not ready for marriage and they were still young;

(h)    he said that he saw the appellant and her family off at the airport on 14 August 2010 when they returned to Australia and that he then waited for her decision on his proposal;

(i)    he said that while they were talking on the phone in April 2011, the appellant said that she had thought a lot about their relationship and agreed to marry him. He said he told his family and that “everyone supported us”;

(j)    he described their wedding at Hoang Lan Restaurant on 30 June 2011, with 150 guests attending, and that they spent their honeymoon in Da Lat for one week before the appellant returned to Australia on 1 August 2011, after which they maintained “our contact as normal”; and

(k)    he described how, on 14 March 2012, the appellant returned to Vietnam to visit him for three weeks and that, since then, they had maintained regular contact. He also explained that although his wife had sent him money he told her not to do so because he had a stable job and simply wanted her to travel to Vietnam to visit him but her work meant that she did not have time to do so. However, he hoped that she would come to Vietnam in mid-2014.

20    It is evident that the Tribunal’s hearing on 14 January 2014 commenced at 12:42 pm and was completed at 2:05 pm. A full copy of the transcript of that hearing was not in evidence. In particular, there was no transcript of the Tribunal’s questions of the appellant or her answers. It is evident, from the Tribunal’s records, that both the appellant and her lawyer/migration agent attended the hearing and the appellant was interviewed by the Tribunal.

21    A transcript of Mr Le’s interview was in evidence. It is evident from those extracts that his telephone interview commenced at 1:07:33 pm and concluded at 1:12:16 pm, i.e. it took approximately 5 minutes, which included translations.

22    Because of the significance in the appeal of Mr Le’s telephone interview, it is desirable to set out the transcript of that interview (omitting formal introductory exchanges and noting that “TM” means Tribunal Member and “T” means the translator):

23    There are several points to note about Mr Le’s interview. First, when Mr Le was asked to respond to the statement that “the delegate was concerned that this was not a genuine spouse application”, he had difficulty understanding the question and asked that it be repeated. That is perhaps unsurprising given the general nature of the question and the fact that it focused on the genuineness of the application, as opposed to Mr Le’s relationship with the appellant. It is notable that in his response Mr Le said that he did not have any “opinions about that”, i.e. the genuineness of the application, but he said that their relationship was a genuine one.

24    Secondly, the Tribunal then asked Mr Le a second very general question by inviting him to describe his wife, her personality and what made her a suitable partner for him. Mr Le responded directly to that question and provided a variety of information about the things they had in common and said that they got along very well.

25    Thirdly, without exploring any of those matters further and without raising any other matters of concern to the Tribunal, the Tribunal member concluded the interview with a general invitation to Mr Le to say anything else that he wished to tell the Tribunal about the application. Mr Le responded by saying that he had done so in his statement (an apparent reference to the statement dated 13 January 2014) and that he did not have further information.

26    It is notable that the Tribunal did not ask Mr Le any direct questions on several matters which the Tribunal was subsequently to rely on in dismissing the review and which he may have been able to explain (see below at [33]).

27    On 24 January 2014 the Tribunal affirmed the delegate’s decision not to grant a partner visa and published its reasons. The Tribunal accepted that the parties were validly married but it expressed concern about the lack of documentation provided. On this subject, the Tribunal noted that:

(a)    Mr Le had indicated in his recent written statement that it was their lack of education that led to the refusal of the visa because they could not make the Department understand their story. The Tribunal then stated that, as it had “pointed out”, Mr Le and the appellant had received immigration assistance in lodging the visa application and the Tribunal had difficulty accepting that it was a lack of education on the part of the parties which led to the application being refused. It said that the visa was refused because of concerns about the genuineness of the application; and

(b)    the parties had been provided with an opportunity to provide supporting information but “very little” had been provided, particularly in regard to the time when the visa application was lodged. The Tribunal also commented that, although the parties claimed to have met in June 2007 and were close for a number of years before they decided to marry, including maintaining contact by phone when the appellant moved to Australia in June 2009, there was “very little in the way of supporting documentation in regard to the development of their relationship”.

28    The Tribunal noted that, following the hearing on 14 January 2014, the appellant had submitted a bundle of photographs, including of the wedding, as well as copies of envelopes sent between the parties. The Tribunal noted that the dates of some of the photographs were unclear, as were the dates on which the various letters were sent apart from the year “2011”. The Tribunal also noted that the parties both claimed that they did not have much education, which was the reason why they said they did not send text messages to each other, but the Tribunal wondered why they communicated in writing by letters and it expressed “concerns that they were written so as to provide evidence of communication rather than being actual meaningful communication between the parties”.

29    As to matters specifically relating to reg 1.15A(3), the Tribunal found that:

(a)    the appellant had sent Mr Le money transfers on four occasions in September and October 2011 as well as further fund transfers between June 2012 and November 2013, but the fact that these gifts were not “reciprocated” in a claimed mutually committed relationship was unexplained;

(b)    given that the parties resided in different countries, they had limited opportunity to establish a joint household;

(c)    the evidence of the social aspects of their relationship caused the Tribunal concerns that the application was contrived for migration purposes, including because:

(i)    it was “unusual” that the appellant’s stepfather and mother had not disclosed that Mr Le was the stepfather’s nephew in their written statement supporting the partner visa application. It is evident that the Tribunal asked the appellant whether her relationship with Mr Le had been “contrived to achieve a positive migration outcome of bringing her stepfather’s nephew to Australia”, which the appellant denied;

(ii)    given the family connection, it could place little weight on the written statement by the appellant’s stepfather and mother as to her relationship with Mr Le or on photos of the parties being together as evidence that they held themselves out to others as being married; and

(iii)    given the lack of supporting evidence from friends and acquaintances, particularly at the time of the partner visa application, the Tribunal remained concerned that the application had been contrived for migration purposes and was not a genuine relationship; and

(d)    the Tribunal did not find the evidence of the parties’ commitment to each other to be persuasive, noting in particular that:

(i)    the appellant incorrectly stated that she married the visa applicant in 2010, rather than the correct year of 2011 and the Tribunal described as “implausible” her explanation that her incorrect response was because she had not slept well the night before the hearing. The Tribunal noted that the appellant could recall the full details of other dates, such as the date she came to Australia;

(ii)    the couple did not see each other for nearly two years prior to the hearing, which it said was not reflective of a couple in a committed relationship and that if there had been such a relationship the appellant would have arranged to visit Mr Le after April 2012. The Tribunal described the appellant’s response that they still saw each other and talked on the internet through services such as Tango and Viber as not displacing its concerns about the level of commitment in the relationship if it were a genuine spousal relationship;

(iii)    the marriage ceremony departed from tradition in several respects and when this matter was raised with the appellant at the hearing her response was different from that given by Mr Le when he was interviewed by the delegate. He said then that the departure from traditional custom was because his paternal grandmother had passed away, whereas the appellant said that her parents had not considered the traditional ceremony to be important. The Tribunal concluded that the parties had provided inconsistent evidence on this issue;

(iv)    the Tribunal also expressed “difficulty” in accepting that the marriage proceeded shortly after the death of Mr Le’s paternal grandmother in the circumstances outlined by the delegate. Despite the appellant’s explanation that the marriage proceeded on that day because it had been decided by the families and they did not have a lot of time, the Tribunal described this explanation as “curious” and stated that it remained concerned that the marriage proceeded in the circumstances of Mr Le’s paternal grandmother having recently died;

(v)    as to the parties’ claim that they spoke regularly on the phone and wrote letters to each other at the time of the visa application, the Tribunal noted that there was a lack of evidence of communication, particularly at that time. The Tribunal referred to the delegate’s findings that a review of Mr Le’s phone printouts indicated mostly short weekly calls between 12 August 2011 and 12 October 2011, including one call in October 2011. The Tribunal also referred to the 15 letters which were exchanged from December 2010 to July 2011. The Tribunal noted that the appellant had stated at the hearing that she had initially sent letters to Mr Le every several months but this was not convenient, so later on they used internet chat forums. The Tribunal noted that it placed limited weight on the envelopes as supporting a claim of a genuine relationship at the time of the visa application in circumstances where the envelopes were provided after the hearing. The Tribunal also noted that copies of all the phone cards submitted by the appellant did not indicate who had used the phone or to whom the calls had been made and that the calls could have been made to Mr Le’s grandmother’s household. It said that it placed limited weight on those cards;

(vi)    the Tribunal also noted that it had raised with the appellant the delegate’s concerns relating to the parties’ claimed communications, particularly in respect of Mr Le’s mobile phone which the delegate had examined and found that there was no indication of any calls from Australia, nor any calls or text messages from Mr Le or any other Australian number. The Tribunal noted the appellant’s explanation that she used SIM cards to call Mr Le and that therefore there was no Australian identification number on his mobile phone. While the Tribunal accepted that this “may be the case”, it found the appellant’s response that she and Mr Le never used text to be “very unusual”. It described her comment that texting took too much time to be “unusual” given the Tribunal’s own experience. It added that it did not find the appellant’s solicitor’s explanation for the lack of text messaging (i.e. because of the illiteracy of the parties) to be persuasive, given that the appellant did not raise this reason, text messages could be phonetically spelt or abbreviated and because the parties sought to rely on letters “purportedly written and sent between them”. The Tribunal noted that there was no evidence to support the claims that the couple spoke to each other for an hour a day on internet chat lines and that, in the absence of any supporting information other than their own evidence, the Tribunal did not accept that they had this level of communication.

30    The Tribunal also referred to the delegate’s concern about Mr Le’s lack of knowledge of his wife’s life in Australia. It noted that the appellant had explained during the hearing that this was because Mr Le was nervous. The Tribunal noted, however, that the delegate had found that Mr Le appeared to give evidence that had been rehearsed rather than being able to answer questions asked by the delegate and the Tribunal added that this was “confirmed” by the record of interview available to it of Mr Le’s interview with the delegate. The Tribunal added that Mr Le’s lack of memory about the circumstances in which he proposed to the appellant as well as the circumstances in which she accepted his proposal to be “not reflective of a genuine relationship”. It rejected the explanation that these matters were attributable to Mr Le’s nervousness and found that he did not know about aspects of the appellant’s life because they were not in a committed relationship.

31    The Tribunal noted the delegate’s concerns relating to inconsistent information which Mr Le gave about spending time with the appellant before she left Vietnam to return to Australia and, in particular, that he spent time with her during the day before he worked as a night watchman in the evening. Reference was made to the delegate’s finding that this was inconsistent with information in Mr Le’s curriculum vitae which indicated that he did not start duties as a night watchman until 2009. The Tribunal noted that in his written statement dated 13 January 2014, Mr Le claimed that before 2009 he had joined a people’s security team to maintain security in the local area at night as this was compulsory for young men who did not do military duties. It noted that, as this civic duty and activity was not mentioned in his curriculum vitae, the Tribunal did not “accept it as an explanation for his inconsistent information before the Departmental officer”.

32    Having regard to “these findings”, the Tribunal stated in [39] of its reasons for decision that it was not satisfied that the parties were in a spousal relationship either at the time Mr Le lodged his partner visa application or at the time of the decision.

33    It should be noted that notwithstanding the following matters which formed part of the Tribunal’s reasons for rejecting the review application, Mr Le was asked no direct questions about them in the telephone interview:

(a)    the Tribunal’s concern that the letters between Mr Le and the appellant were written to provide “evidence of communication” rather than being “actual meaningful communication”;

(b)    why Mr Le had not sent gifts to the appellant, which the Tribunal considered to be relevant to the claim that they had “a mutually committed relationship”;

(c)    the apparent inconsistency between Mr Le’s evidence and that of his wife as to why their marriage ceremony departed from tradition;

(d)    the delegate’s findings regarding phone calls between Mr Le and the appellant;

(e)    the Tribunal’s concerns as to why Mr Le and the appellant did not text each other and also whether they spoke to each other for an hour a day on internet chat lines as claimed by the appellant;

(f)    the delegate’s concerns about Mr Le’s alleged lack of knowledge of his wife’s life in Australia;

(g)    the delegate’s finding that Mr Le’s evidence given at his interview in Vietnam was “rehearsed”;

(h)    the Tribunal’s view that Mr Le lacked memory about the circumstances of his marriage proposal to the appellant (particularly in circumstances where it is evident from the Department’s notes of its interview with Mr Le that he was able to recall various matters relating to that event);

(i)    allegedly inconsistent information given by Mr Le to the delegate regarding his work as a night watchman and the time he spent with the appellant before she left Vietnam to return to Australia; and

(j)    the Tribunal’s rejection of Mr Le’s explanation in his 13 January 2014 statement that, prior to 2009, he had to do security work in his local area because he did not do military duties, as this explanation was not mentioned in his curriculum vitae.

34    If the Tribunal had raised these matters of concern with Mr Le, he may have been able to provide explanations or other evidence on some or all of them. The questions which Mr Le was asked by the Tribunal were, as the transcript reveals, highly perfunctory. None of them was squarely directed to the specific matters of concern to the Tribunal as described above.

(c) The FCCA’s decision

35    The appellant’s judicial review application to the Federal Circuit Court of Australia (FCCA) raised the following two grounds:

1.    The Tribunal committed jurisdictional error by failing to give the visa applicant, Phi Thanh Le, who was an applicant for the purposes of s. 360 of the Migration Act, a hearing as required by that section.

Particulars

(a)    Failure to advise Phi Thanh Le of the issues arising in the review and to give him an opportunity to give evidence about them.

2.    It was unreasonable, in the legal sense, and therefore a jurisdictional error, for the Tribunal to fail to take specific evidence from Phi Thanh Le about the issues arising on the review.

Particulars

(a)    Mr Le was a participant in the marriage and as such could give first hand evidence about the relationship between the parties thereto.

36    The FCCA rejected the appellant’s first ground, i.e. that Mr Le was an “applicant” for the purposes of ss 359A and 360 of the Act. Its reasons for doing so may be summarised as follows:

(a)    although the Act defines a “visa applicant” in s 5, the word “applicant” is not otherwise relevantly defined and it should be given its ordinary meaning as someone who makes an application;

(b)    the Act envisages different kinds of application being made, including visa applications and review applications;

(c)    in some cases, where a visa applicant is outside Australia, a decision on the visa application is not reviewable by the Tribunal and it was not disputed that Mr Le did not have standing to seek a review by the Tribunal of the adverse partner visa decision;

(d)    although the only reference to a review applicant in Divs 1-8 of Pt 5 of the Act is in s 358 and the likelihood is that the Parliament intended the terms “applicant” and “review applicant” to be synonymous, it was arguable that where a visa applicant and a review applicant shared a common interest in the outcome of a review, the Parliament intended that the interest of the visa applicant would be protected in ss 359A and 360; and

(e)    nevertheless, the Court considered that it should follow the decision of Scarlett FM in Vuong v Minister for Immigration & Anor [2009] FMCA 433, where the Federal Magistrate held that s 360 applies only to the review applicant and not to the visa applicant, which was not clearly wrong.

37    On the second ground, i.e. whether the Tribunal had failed to take specific evidence from Mr Le about issues arising in the reasons and whether any such failure was unreasonable in the legal sense, the Court held that there was nothing procedurally unfair or legally unreasonable in the Tribunal’s questioning of Mr Le. The Court noted that the Tribunal had only asked Mr Le “a very few general questions and did not raise the reg 1.15A(3) issues with him” (at [30]). The Court described the Tribunal’s questions of Mr Le and his answers as “inconsequential”, notwithstanding that the Tribunal had foreshadowed that it might wish to take evidence from him. But it rejected the appellant’s argument that Mr Le’s interest in the outcome was the same as hers, yet the Tribunal “did nothing to explain to him the issues that would be likely to be dispositive of the review and where nothing of significance was sought by the Tribunal of him” (at [35]).

38    Furthermore, the Court held that it was “plain” from Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] that the Tribunal was under no general duty to inquire. The Court said that in circumstances where Mr Le had prepared two written statements, the second expressly for the purposes of the Tribunal review, and the Tribunal had the benefit of the transcript of the delegate’s interview with Mr Le, as well as the delegate’s decision, “it is understandable that the Tribunal may not have felt the need to ask Mr Le anything of great moment” ([37]). The Court added that it did not see any relevant application of the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 in relation to a non-party to a Tribunal review.

39    Finally, the FCCA made the following observations at [38]:

The Courts have, appropriately, shown considerable latitude to the Tribunal where it has decided not to call a witness requested to be called by the applicant. Here, the witness in question was actually called. The deference shown by a Court must be of a higher order when it comes to the particular questions that a Tribunal asks of a witness. That is more akin to the Tribunal making its own inquiries.

The appeal

40    In her original notice of appeal, the appellant raised only two grounds of appeal, which substantially reflected the two judicial review grounds before the FCCA. The first related to whether the FCCA erred in finding that the visa applicant was not an “applicant” for the purposes of ss 359A and 360 of the Act. The second ground was whether the FCCA erred in finding that the Tribunal did not act unreasonably in a legal sense in failing to take specific evidence from Mr Le about the issues arising in the review.

41    During the course of the hearing, the appellant sought leave to amend her notice of appeal to add a third ground of appeal, to the effect that the FCCA erred by failing to find that the Tribunal’s questioning of Mr Le at the hearing denied him procedural fairness. The proposed amendment was opposed by the Minister, who relied on the late raising of the proposed amendment and also on the fact that the ground had not been raised below. The Minister also relied upon the fact that, at the outset of the hearing of the appeal, the appellant’s counsel disavowed any reliance on the ground of procedural unfairness. The Minister was unable to point to any prejudice if the amendment was granted. In particular, the Minister did not identify any evidence which he could have adduced below if the issue had been raised and argued in the FCCA (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8). The following observations of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] are apposite:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

42    I indicated during the course of the hearing of the appeal that I would rule on the appellant’s application to add ground 3 and would give reasons in my final reasons.

43    Taking into account all these matters, the appellant should be granted leave to amend her notice of appeal. The so-called “concession” made by the appellant’s counsel at the outset of the appeal was promptly withdrawn and caused the Minister no prejudice. Ground 3 raises a question of law and the Minister has not claimed any prejudice as to evidentiary matters. The ground has sufficient merit to warrant leave, however, for reasons which will shortly emerge, it is unnecessary to determine this ground of appeal.

44    I will deal with the three grounds of appeal in turn.

(a) Was Mr Le “an applicant” for the purposes of ss 359A and 360 of the Act?

45    As noted above, Mr Le was the visa applicant but his wife was the applicant for review before the Tribunal. Division 5 of Pt 5 deals with the conduct of a review by the Tribunal. As will shortly emerge, one of the provisions in Div 5 refers to an “applicant for review”, whereas other provisions simply refer to “an applicant” or “the applicant”. Counsel for the appellant accepted that Mr Le was not and could not be “an applicant for review by the Tribunal”, but he submitted that Mr Le was “an applicant” for relevant provisions of Div 5, particularly ss 359A and 360. That submission was rejected by the FCCA. I consider that the FCCA did not err in this respect.

46    The task of statutory construction must necessarily focus on ss 359A and 360, and also on other relevant provisions in Div 5. The parties were agreed that the task of construction was one which required close attention to the text of the relevant provisions, as well as the context within which those provisions operate and the legislative purpose which underlay them. Matters of context should be taken into account at the beginning and not merely at the end of the task of statutory construction.

47    It is convenient to first set out ss 359A and 360 as they stood at the relevant time (hence I will refer to all relevant provisions in the past tense).

359A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

    …

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.

48    The references to “the applicant” in ss 359A and 360 should be construed in the context of other provisions in Div 5 which used the terms either “the applicant” or “an applicant”, as opposed to the phrase “an applicant for review by the Tribunal”.

49    The term “applicant” was not defined in the Act. However, the term “visa applicant” was defined in s 5 as meaning “an applicant for a visa and, in relation to a visa, means the applicant for the visa”.

50    As the FCCA stated, the Act envisaged at the relevant time several kinds of applications being made, including applications for a visa but also applications for review by the Tribunal.

51    It is also relevant to note that not every applicant for a visa was entitled to seek a review of an adverse decision by the Tribunal. As noted above, the effect of s 347(2)(b) was that, although the decision to refuse Mr Le a partner visa was an “MRT-reviewable decision”, the only people with standing to seek a review in the Tribunal of such a decision were the sponsor or nominator referred to in the relevant subsection, s 338(5).

52    Section 358 dealt with the provision of written materials by an “applicant for review by the Tribunal”. It provided:

358    Documents to be given to the Tribunal

(1)    An applicant for review by the Tribunal may give the Tribunal:

(a)    a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b)    written arguments relating to the issues arising in relation to the decision under review.

(2)    The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.

53    As the FCCA commented, s 358 was the only provision in Divs 1-8 of Pt 5 which referred to “an applicant for review”.

54    There were numerous references in other provisions of Div 5 to “the applicant” or “an applicant”. For example, s 359AA dealt with circumstances where “an applicant” who was appearing before the Tribunal because of an invitation extended under s 360 must be given certain information by the Tribunal, either orally or in writing. The terms of s 360 are set out in [47] above.

55    As a further example, s 360A provided that if “the applicant” is invited to appear before the Tribunal, the Tribunal must give “the applicant” the notice of the day on which, and the time and place at which, “the applicant” is scheduled to appear. Such notice must be given to “the applicant” by various specified methods including, if “the applicant” is in immigration detention, by a prescribed method.

56    There were further references to “the applicant” in ss 362A and 362B. The first of those provisions dealt with access to written material before the Tribunal. The second dealt with the failure of “the applicant” to appear before the Tribunal. It provided:

362B    Failure of applicant to appear before Tribunal

(1)    If the applicant:

(a)    is invited under section 360 to appear before the Tribunal; and

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

57    Section 366 dealt with different ways in which “the applicant” could appear before the Tribunal. There were also references to “the applicant” in both ss 366A and 366B, which dealt respectively with “the applicant” being assisted by another person while appearing before the Tribunal and the prohibition on any person, other than “the applicant”, from being assisted or represented while appearing before the Tribunal.

58    Finally, s 367, which dealt with certain decisions which have to be made within the prescribed period, also contained references to “the applicant”, including imposing an obligation on the Tribunal to notify “the applicant” of its decision on an “MRT-reviewable decision” as defined in s 338(4). It might also be noted that, under s 367(2), the Tribunal could, with the agreement of “the applicant”, extend the prescribed period.

59    Section 359 is an important provision (in relation to all three grounds of appeal). It dealt with the Tribunal’s power to seek information which it considered to be relevant and the obligation which ensued if it did so. It provided:

359    Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the invitation is given to a person in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

(4)    If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

60    Under s 361, the Tribunal was obliged to notify “the applicant” in a notice under s 360A that he or she was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, as well as notify “the applicant” of the effect of s 361(2) and (2A).

61    Under s 362, “the applicant” was entitled to request the Tribunal to give “the applicant” the opportunity to appear before it or to obtain oral evidence from a specified person or persons where “the applicant” had been invited to appear before the Tribunal in relation to the decision under review. There were further references to “the applicant” in s 362(2) and (3).

62    As a matter of orthodox statutory construction the same words used in legislation are generally regarded as having a uniform meaning unless the context otherwise demands: see Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532 at [41] per Black CJ (applying Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452 per Hodges J) and Parmar v Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186 at [18] per Perram J.

63    For the following reasons, I consider that the primary judge was correct to hold that Mr Le was not “the applicant” for the purposes of ss 359A and 360. First, such a construction is consistent with the language and purpose of those provisions. Read in context, the references in those provisions to “the applicant” is plainly a reference to the review applicant and not to some other person.

64    Secondly, I also accept the Minister’s submission that the primary judge’s construction is more consistent with the operation of Pt 5 as a whole. As the Minister pointed out, the clear intention of s 347(2)(b), (3) and (3A) was to exclude a visa applicant who was located outside Australia from seeking a review by the Tribunal. It would not make sense to construe ss 359A and 360 as conferring upon a visa applicant all the rights of a review applicant in the Tribunal, except for the right to apply for a review.

65    Thirdly, I reject the appellant’s submission that relevant significance attaches to the different language used in s 358 as opposed to other provisions in Div 5 of Pt 5. The former provision referred to an “applicant for review”, whereas the latter provisions simply referred to “an applicant” or “the applicant”. It is to be noted that many of the provisions were inserted at different times. The references to “an applicant” or “the applicant” appear to be shorthand expressions to avoid having to repeat the more lengthy phrase “an applicant for review” as used in s 358. In the context of all the relevant provisions in Div 5, it is most improbable that the Parliament intended by using the phrases “an applicant” or “the applicant” to refer to both a review applicant and a visa applicant. All the more so in circumstances where, as noted above, the term “visa applicant” was a defined term.

66    Fourthly, the legislative history supports that construction. The predecessor of s 358 was first inserted in 1989 by the Migration Legislation Amendment Act 1989 (Cth) (Amendment Act). The new Pt III made provision for review of certain decisions by the Immigration Review Tribunal (IRT). It included a Div IV which was entitled “Conduct of Review”, under which s 64K, the predecessor to s 358, permitted an “applicant for review by the Tribunal” to give the IRT a statutory declaration and a written statement. The following provisions simply referred to “applicant”, which appears to have been used as a convenient shorthand expression. The Supplementary Explanatory Memorandum to the Amendment Act made reference to the “overriding requirement that the applicant for review has a right to give oral evidence”, which was set out in s 64M. That provision is plainly the predecessor to s 360. Section 64M simply referred to the “applicant” and not to the “applicant for review”, however, the Supplementary Explanatory Memorandum confirms that the two expressions were being used interchangeably.

67    Finally, the appellant’s construction is not supported by Robertson J’s decision in SZPZH v Minister for Immigration and Citizenship [2011] FCA 960 at [21]-[25], with which I respectfully agree.

68    For these reasons I reject ground 1 of the amended notice of appeal.

(b) Did the Tribunal act unreasonably in the legal sense in failing to take specific relevant evidence from Mr Le?

69    Division 3 of Pt 5 of the Act dealt with review of certain migration decisions by the Tribunal. As noted above, it was common ground that only the appellant was entitled to seek a review of the delegate’s decision by the Tribunal.

70    Section 348 provided that if an application was properly made under s 347 for review of an MRT-reviewable decision, the Tribunal must review the decision. This can be described as the Tribunal’s “core function” (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [8] and [12] per French CJ).

71    Section 349 provided that, for the purposes of such a review, the Tribunal may exercise all the powers and discretions that were conferred by the Act on the person who made the decision.

72    Section 353 dealt with the Tribunal’s operations and provided:

353    Tribunal’s way of operating

(1)    The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

73    Division 5 of Pt 5 of the Act dealt with the conduct of a review by the Tribunal. The terms of s 357A, which was the first provision in Div 5, should be noted as they are significant. It provided:

357A    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

74    Section 358 (see [52] above) provided inter alia that an applicant for review may give the Tribunal a written statement in relation to any matter of fact that the applicant wished the Tribunal to consider. Sections 359 to 362 are all relevant, the terms of most of which are either set out or summarised above. It is particularly significant to note that s 359(2) conferred a discretion on the Tribunal to invite, either orally or in writing, a person to give information. This discretion operated in the context of s 359(1), which also conferred a discretion on the Tribunal, in conducting the review, to “get any information that it considers relevant”, which was accompanied by an obligation upon the Tribunal, if it got such information, to have regard to that information in making the decision on the review.

75    Section 359B is another significant provision. It was related to the Tribunal’s discretion under s 359(2) to invite a person to give information. At the relevant time, s 359B relevantly provided:

359B    Requirements for written invitation etc.

(1)    If a person is:

(a)    invited in writing under section 359 to give information; or

(b)    invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

…

(3)    If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

(a)    at the place specified in the invitation; and

(b)    at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

…

76    It should also be noted that s 366D expressly stated that a person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence. It provided:

366D    Examination and cross examination not permitted

A person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence.

The effect of this provision is that only the Tribunal was entitled to ask questions of any person who appeared before it to give evidence, including a person who was invited to give evidence under s 359 or a person who was summoned under s 363(3)(a).

77    For completeness, it might also be noted that the statement of the Tribunal’s powers in s 363 for the purpose of conducting the review of a decision, included a power of the Tribunal to take evidence on oath or affirmation.

The High Court’s decision in Li

78    The parties were agreed that, on the ground of unreasonableness in a legal sense, close attention had to be paid to both the High Court’s decision in Li and the Full Court’s decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (Singh).

79    The issue in Li was whether the Tribunal’s refusal to adjourn a hearing pending finalisation of a new skills assessment which had been sought by the applicant (who was also the review applicant) for a skilled residence visa was unreasonable and constituted jurisdictional error. The High Court held that it was. The Court emphasised the importance of the relevant provisions in Pt 5 of the Act relating to the procedures for review by the Tribunal, including ss 353, 357A, 360(1) and 363(1)(b). The plurality (Hayne, Kiefel and Bell JJ) also drew attention at [54] to the Tribunal’s power in s 359 to seek additional information and their Honours noted that, in some cases, the Tribunal “may be bound to do so”.

80    Their Honours noted at [55] that the terms of s 357A(1) appeared to leave no room for the implication of the requirements of procedural fairness beyond what was provided in Div 5. Reference was made at [56] to the Full Court’s decision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427, with the plurality noting the Full Court’s observation that s 357A(3) may have been intended to “restore concepts of fairness and justice to the exercise of the procedural powers for which the Division provides”.

81    The significance which the plurality attached to s 357A(3) is evident from [58]-[62] (citations omitted):

58.    In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

59.    A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

60.    The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.

61.    Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

62.    It is not necessary to determine what s 357A(3) requires and what may be the consequence of a breach of that provision. Even if s 357A(3) by itself has no consequence for the ultimate decision of the Tribunal, to affirm the delegate's decision, it might nevertheless be concluded that the purpose of s 360(1) was not met. Without Ms Li being provided an opportunity to present her further evidence, it might be concluded that the hearing contemplated did not take place. It is not necessary to determine the appeal on this basis, since there is a more direct route to its resolution, by reference to s 363(1)(b) and a requirement of the law.

82    The Court in Li was agreed that there is a legal presumption that the legislature is taken to have intended that a statutory discretionary power will be exercised reasonably (see at [23] per French CJ; at [63] per Hayne, Kiefel and Bell JJ and at [94] per Gageler J).

83    The Court was also agreed that the principles of legal reasonableness left an area “within which a decision-maker has a genuinely free discretion” (at [66]), which is not amenable to judicial review. Significantly, as the plurality stated at [66], “a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”. Equally significantly, the plurality stated at [67] that the legal standard of reasonableness “must be the standard indicated by the true construction of the statute”. This requires close attention to the relevant legislative provisions in applying the standard of legal unreasonableness. In Li this meant that particular regard had to be paid to the scope and purpose of the power to adjourn in s 363(1)(b), with powers connected to the purpose of s 360(1). The plurality also emphasised the importance of the decision-maker’s reasons, where such reasons have been provided (see at [76]). Their Honours recognised, however, that it might not be possible to comprehend from such reasons how a particular decision was arrived at, in which case the decision could be described as unreasonable in the sense that the decision lacked “an evident and intelligible justification” (at [76]). As will shortly emerge, this aspect of Li was developed in Singh.

84    Applying those principles, the plurality concluded that the Tribunal’s refusal to grant an adjournment was unreasonable in the legal sense and meant that the Tribunal did not conduct its review in the manner required by the Act, which involved jurisdictional error. The plurality stated at [85] (citations omitted):

The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

The Full Court’s decision in Singh

85    In Singh, the Full Court identified the following principles as relating to legal unreasonableness:

(a)    legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power involves legal unreasonableness requires “careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence” (at [42]);

(b)    as is the case with the obligation to afford procedural fairness, there is an implication that the Parliament intends a power to be exercised reasonably, subject to any clear statutory qualification or contrary intention (at [43]);

(c)    legal unreasonableness falls into two categories: it can be a conclusion reached by a supervising court after identifying an underlying jurisdictional error in the decision-making process or it can also be “outcome focused” without necessarily identifying another underlying jurisdictional error (at [44]);

(d)    where a decision-maker has given reasons for its decision, the supervising court must look at those reasons to understand why the power was exercised as it was. It would be “a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable” (at [47];

(e)    the indicia of legal unreasonableness are to be found in the scope, subject and purpose of the relevant statutory provision. As the Full Court observed at [48]:

The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised…;

(f)    in the case of discretionary powers vested in a body such as the Tribunal, the location of those powers in the statutory scheme as aids to the performance of a review function is important, noting that the entire function of a review by that Tribunal under Pt 5 of the Act is to make the correct or preferable decision in respect of an individual applicant or application (at [49]);

(g)    the interaction between a tribunal’s obligations of procedural fairness in conducting a review and the standard of legal reasonableness can operate to control the manner in which such a tribunal may exercise a discretion reposed in it (at [50]); and

(h)    s 360 requires the Tribunal to give an applicant a meaningful opportunity to appear and present evidence and argument, which involves a fact dependent exercise in each case to determine whether such an opportunity or real chance has been afforded (at [51]).

86    Although neither Li nor Singh dealt directly with the Tribunal’s power under s 359(2) to invite a person to give information which the Tribunal considers relevant to its review, or the related duty which arises under s 359(1) to have regard to information which the Tribunal gets, the principles established in these decisions are relevant to the operation of those and other related provisions in the circumstances here.

87    Applying these principles, I consider that the FCCA erred in not concluding that the Tribunal acted unreasonably in the relevant legal sense in failing to ask Mr Le during the course of its interview of him questions relating to the matters set out in [33] above which were relevant to the review.

88    First, in requesting that Mr Le be available to give evidence by telephone, the Tribunal plainly considered that he might be able to give it information which was relevant to the review. The Tribunal was not obliged to obtain oral evidence from him but it chose to do so. Moreover, it chose to proceed with its request that he be available to give oral evidence on 14 January 2014 notwithstanding that, on that same day, it had received from him a further written statement of evidence.

89    Secondly, having determined to exercise its discretionary power under s 359(2) to invite Mr Le to give information orally and having complied with the requirements in s 359B(1) and (3), the Tribunal was obliged to conduct its interview of Mr Le reasonably in the sense explained in cases such as Li and Singh. The purpose of s 359 is to empower the Tribunal in its discretion to get information, either orally or in writing, which is relevant to the issues arising in the review. That purpose is not unlike the purpose of s 360 (see the comments in Li set out in [81] above). In a case where the Tribunal, in its discretion, determines to have a person give oral evidence at an interview it is plainly contemplated that this will occur before the Tribunal makes its decision. That is necessarily implicit in the obligation imposed by s 359(1) to have regard to relevant information which is obtained under that provision. And as is also the case with s 360(1), the opportunity for a person to give information in response to an invitation made under s 359(1) and (2) must be meaningful. The Tribunal has a discretion as to the questions which it will raise with a person whom it invites to give information at an interview, however, those questions must give effect to the requirement that the opportunity to give information is meaningful (see further below at [90]). As the Full Court stated in Singh at [51] what amounts to a “meaningful opportunity” to present evidence “will be fact dependent in each case”. In my view, this observation is equally applicable to an interview conducted pursuant to ss 359(2) and 359B(3).

90    Thirdly, it is important to bear in mind that the Tribunal’s decision to request that Mr Le be available to give evidence must have been a decision taken by it in the exercise of its discretion under s 359(1) and (2) of the Act and the discharge of its concomitant obligations under s 359B(1) and (3). It was plainly contemplated that further steps would be taken to implement that discretion, including asking questions of Mr Le at interview which were relevant to the issues arising in the review. I do not regard the principles established in Li and Singh relating to the presumption that statutory powers and duties must be exercised reasonably in a legal sense to be confined in the circumstances of this case to the Tribunal’s initial decision to have Mr Le give evidence. If the requirement of reasonableness in the legal sense does not also extend to the Tribunal’s subsequent questioning of Mr Le at interview, the opportunity afforded to him to give oral evidence could be nothing more than an empty gesture. Furthermore, the discretion conferred upon the Tribunal by s 359 must be viewed in the context of other provisions in Div 5 which confer powers on the Tribunal which are plainly intended to facilitate the Tribunal’s core function of conducting a review. Those powers include the power to obtain oral evidence under oath or affirmation from a person whom the Tribunal decides to call as a witness.

91    Fourthly, the opportunity afforded to Mr Le by the Tribunal’s request to give oral evidence had to be “real and meaningful and not just an empty gesture” (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 (Maltsin) at [38] and the other authorities cited there). Although that epithet was used in Maltsin in relation to the giving of oral evidence by witnesses in respect of whom the review applicant has given a notice to the Tribunal under s 361(2), there is no reason why the same standard or requirement should not apply where, as here, the Tribunal of its own volition calls a witness under s 359(2).

92    Fifthly, in the circumstances of this case the Tribunal must have believed that Mr Le was capable of giving information which it considered to be relevant to the issues arising in relation to the decision under review, otherwise the Tribunal would have lacked power under s 359(2) to invite him to give oral evidence.

93    Sixthly, the Parliament plainly regarded any information which is obtained by the Tribunal pursuant to the exercise of its powers under s 359(1) and (2) to be significant because it imposed an express obligation on the Tribunal under s 359(1) to have regard to information which is relevant and which it obtains under either s 359(1) or (2).

94    Seventhly, it is also significant that the Parliament saw fit in s 366D to prohibit anyone other than the Tribunal from examining or cross-examining a person who appears before the Tribunal to give evidence. This serves to reinforce the Tribunal’s inquisitorial role and its responsibility of ensuring that a witness whom it calls to give oral evidence is given a “real and meaningful” opportunity to give evidence on issues which the Tribunal considers to be relevant.

95    Eighthly, although as Hayne J observed in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [192], the review process of the Refugee Review Tribunal (RRT) under Pt 7 of the Act is “a predominantly documentary process” (and the same may be said in respect of the Tribunal’s review process under Pt 5), it is evident from various provisions in Pt 5 that it is contemplated that the Tribunal may obtain both written or oral evidence from a witness, not limited to the review applicant. Moreover, the Tribunal’s power to get such information or evidence orally is facilitated by its express powers to administer an oath or affirmation (s 363(1)(a) and (3)(c) and (d)); to summon a person who is in Australia to appear before it to give evidence (s 363(3)(a)); to take oral evidence by telephone or by other means (ss 359(2) and 366) and to appoint an interpreter for the purposes of communication between the Tribunal and a person giving evidence in an appropriate case (s 366C).

96    I respectfully agree with the following observations of Rangiah J in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 (CZBH) at [55]-[56] which, while directed at the RRT, are also apposite to the Tribunal when it conducts a review under Div 5 of Pt 5:

55.     The Tribunal's core function pursuant to s 414(1) is to review decisions of the first respondent or his delegates that fall within s 411(1). Its process is inquisitorial. Its task is to make the correct or preferable decision on the materials before it: Li at [10] per French CJ. Section 426 and the ancillary provisions dealing with the taking of oral evidence recognise that in some cases the opportunity given to an applicant to present the evidence of witnesses in written form may not be enough. The purpose of those provisions must include assisting the Tribunal to arrive at the correct or preferable decision through the advantages that may be conferred by obtaining the oral evidence of witnesses.

56.     One of the circumstances evidently contemplated by s 426 is where an applicant has been unable for some reason to obtain a written statement from a witness. Importantly, s 426 must also contemplate that obtaining oral evidence may assist the Tribunal to decide upon the credibility of a witness who has provided a written statement. In Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, Mason CJ and Brennan and Deane JJ held at 189:

A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.

Although that statement was made in the context of considering a criminal trial conducted by a court, it is also true of oral evidence given before a Tribunal which is engaged in an inquisitorial process. In Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 599 and 602, the Full Court indicated that an oral hearing before the Minister's delegate may be required where issues of credibility arise. The Tribunal may find oral evidence given under oath or affirmation more persuasive than evidence given by written statement. If oral evidence is obtained by the Tribunal, it will also have the opportunity to test the credibility of the evidence given in any written statement by questioning a witness in the same way that it has the opportunity to test the evidence of an applicant.

97    Ninthly, the Tribunal did not explain why it considered that Mr Le might be able to give evidence which was relevant to the issues arising in the review, nor did it explain why it only asked the perfunctory questions which it did. Hence, this is a case where no explicit reasons have been given by the Tribunal which explain its impugned actions or conduct.

98    Of course, the Tribunal could not have reviewed Mr Le’s statement dated 13 January 2014 when it indicated to the appellant’s solicitor back on 19 December 2013 that it might wish to take evidence from Mr Le. It may reasonably be inferred, however, that the reason why the Tribunal wished to hear from him was because it considered that he might be able to respond to some or all of those credibility concerns, particular in respect of himself but also possibly in respect of the appellant. The Tribunal appreciated the existence of some of those credibility concerns because they were highlighted in the delegate’s decision and findings as well as in other documents which were before the Tribunal, such as the Department’s notes of its interview with Mr Le on 10 November 2011. That issues of credit were also in the Tribunal’s mind during the course of the hearing is confirmed by the fact that the first substantive question asked of Mr Le in his telephone interview on 14 January 2014 was directed to the delegate’s concern that “this was not a genuine spouse application”. This suggests that the Tribunal considered that Mr Le could give relevant evidence on that issue at the very least.

99    It might also reasonably be assumed that, given these credibility concerns, the Tribunal considered (or, alternatively, should have considered) that justice and fairness required that Mr Le be given an opportunity to comment (see s 357A(3) of the Act and the potential for its exhortations to inform the operation of other provisions in Div 5 of Pt 5 of the Act, including s 359).

100    Finally, it is also relevant to note that although Mr Le himself was unable to seek a Tribunal review of the delegate’s decision refusing him a partner visa, his wife, who is an Australian citizen, availed herself of the right to initiate such a review. In my view, another relevant feature of the circumstances of this case is that Mr Le was the visa applicant and not merely a disinterested witness. It was his application for a visa which set in train the events which ultimately resulted in his wife seeking a review of the delegate’s decision. Mr Le’s prominent role in the matter is also reflected in the fact that he was interviewed by the delegate as well as the Tribunal and that he provided two separate written statements in support of his visa application. The delegate’s decision refusing him a partner visa plainly had an adverse affect on the rights and interests of both his wife and himself.

101    It goes without saying that the Tribunal would not be obliged to accept the responses given by Mr Le to the matters which ought to have been put to him in respect of its credibility concerns. But for the Tribunal to carry out its jurisdiction to conduct a review as contemplated by Div 5, in the particular circumstances of this case it was obliged to raise those matters with Mr Le for his comment.

102    That is not to deny that there may be cases where the Tribunal could justifiably come to the view that no point would be served by hearing the evidence of a particular witness, such as where the evidence of an applicant is so compromised that hearing oral evidence from a corroborating witness could not affect the outcome (see CZBH at [58]). But that is not the case here. The Tribunal did not explain why it did not squarely put to Mr Le its specific credibility concerns. The credibility of both the appellant and Mr Le were very live issues at the time of the Tribunal’s hearing. Some of those issues of concern to the Tribunal were likely to be within Mr Le’s knowledge and capacity to explain. Having determined to arrange for Mr Le to give oral evidence, justice and fairness obliged the Tribunal to provide him with a meaningful opportunity to address those issues of concern. This required the Tribunal to put those issues of concern to Mr Le for comment in terms which enabled him meaningfully to respond. The Tribunal failed to do so. The perfunctory questions asked of Mr Le were such that the credibility concerns of the Tribunal, which were later to be relied upon by it, among other matters, in dismissing the review application and as outlined in [33] above, were never fairly or squarely put to Mr Le for his response.

103    In the particular circumstances of this case, the Tribunal’s actions constitute unreasonableness in the legal sense. By not providing Mr Le with a meaningful opportunity to address the particular issues of concern regarding credibility which the Tribunal had and which are outlined in [33] above, it constructively failed to exercise its jurisdiction to review the delegate’s decision. That constitutes jurisdictional error. I emphasise that this conclusion reflects the particular facts of this case and, in my opinion, does not involve an impermissible review by the Court of the merits of the case.

104    I respectfully disagree with the observations of the primary judge to the effect that it is understandable that the Tribunal may not have felt the need to ask Mr Le anything “of great moment” because he had prepared two written statements (the second of which was for the specific purposes of the Tribunal’s review) and because the Tribunal also had the benefit of the Department’s notes of its interview with Mr Le. As noted above, it was the Tribunal itself who determined to request that Mr Le give evidence albeit that that decision was made prior to reviewing his second statement. And, having received and reviewed that statement, the Tribunal proceeded to take oral evidence from him in circumstances where it may be inferred that the Tribunal continued to entertain concerns about his credibility (and also that of his wife). Taking oral evidence from Mr Le provided the Tribunal with the opportunity to test the credibility of his previous evidence, as well as also providing him with an opportunity to respond to relevant matters which were of concern to the Tribunal regarding his wife’s credibility and which were potentially within his knowledge or capacity to respond to.

105    For completeness, I should indicate that I also respectfully disagree with the primary judge’s observation (set out at [39] above) that the Court should show deference “of a higher order” to that shown where the Tribunal decides not to call a witness nominated by a review applicant. I can see no sound basis for that approach. Such an approach gives insufficient attention to s 357A(3) as well as to the stipulated conditions which define the exercise of the Tribunal’s power under s 359. In particular, as emphasised above, the Tribunal’s discretion to get any information that it considers relevant in the conduct of the review, including inviting a person to give information orally, only exists in circumstances where the Tribunal considers the information it seeks to be relevant to that review. As has been emphasised above, the review which is conducted by the Tribunal must be a meaningful review and a lawful exercise of jurisdiction which is aimed at arriving at the correct or preferable decision.

(c) Did the Tribunal deny Mr Le procedural fairness in its questioning of him at the Tribunal hearing?

106    In view of the appellant’s success on ground 2 it is unnecessary to determine ground 3. I can indicate, however, that if the appellant is correct in her argument that s 357A does not exclude procedural fairness requirements in respect of Mr Le, I would have been disposed to uphold her contention that the Tribunal’s questioning of him was so inadequate and deficient as to amount to procedural unfairness. However, an issue may also have arisen as to whether the appellant has standing to complain of procedural unfairness in respect of another person (noting that, significantly, ground 3 as ultimately pressed was expressed in terms of whether Mr Le, i.e. not the appellant herself, was denied procedural fairness).

Conclusion

107    Leave should be granted to the appellant to file the amended notice of appeal dated 1 June 2015. The appeal should be allowed. The orders made by the FCCA on 9 February 2015 should be set aside, including the order as to costs in circumstances where it is unnecessary to deal with ground 3 in the amended notice of appeal. The first respondent should pay the appellant’s costs of and incidental to the appeal and of the proceedings below as agreed or assessed. The Tribunal’s decision should be quashed and the Tribunal directed to rehear and redetermine the appellant’s application for review according to law. Orders will be made accordingly.

Associate:

Dated:    10 July 2015