FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration and Border Protection [2019] FCA 497

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, as either assessed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, Mr Xuan Tuan Tang, is a citizen of Vietnam.

2    In November 2013 Mr Tang applied for a Partner (Temporary)(Class UK)(Subclass 820) visa and a Partner (Residence)(Class BC)(Subclass 801) visa under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Border Protection refused those applications in June 2016. Review of the decision to refuse the Partner (Subclass 801) visa was sought by the Administrative Appeals Tribunal (the “Tribunal”) in June 2016. That Tribunal affirmed the delegate’s decision in August 2017.

3    Judicial review of the Tribunal’s decision was then sought. In July 2018 the Federal Circuit Court of Australia dismissed that application with costs: Tang v Minister for Immigration & Border Protection [2018] FCCA 2047.

4    A Notice of Appeal was filed in this Court in August 2018.

5    Mr Tang appeared by Counsel before this Court and the Respondent Minister appeared by his solicitor. The Second Respondent filed a Submitting Notice.

6    Leave was sought at the outset of the hearing to amend the Notice of Appeal and leave was also sought to raise as the sole Ground of Appeal an argument not previously advanced before the Federal Circuit Court.

7    Leave to file the Amended Notice of Appeal is granted insofar as it abandons the first Ground of Appeal, however leave to raise the new Ground of Appeal is refused. The appeal is to be dismissed with costs.

The visa sought & the decision of the Tribunal

8    The application for a Partner visa as made by Mr Tang required him to bring himself within cl 820.21 of Sch 2 of the Migration Regulations 1994 (Cth).

9    Clause 820.21 set forth “[c]riteria to be satisfied at the time of application”. In particular, cl 820.211(2) provides in relevant part as follows:

An applicant meets the requirements of this subclause if:

(a)    the applicant is the spouse or de facto partner of a person who:

(i)    is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and

   (ii)    is not prohibited by subclause (2B) from being a sponsoring partner;

…

(d)    in the case of an applicant who is not the holder of a substantive visa – either:

…

(ii)    the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

…

Criteria 3001 of Sch 3 requires an application to be made within 28 days after the cessation of the last “substantive…visa”.

10    On the facts of the present case, Mr Tang’s “last substantive visa” expired in January 2009 and his application for a Partner Visa was made in November 2013.

11    The Tribunal accepted “at face value” (at para [57]) that Mr Tang and his sponsor “were and continue to be in a genuine relationship”. But the Tribunal concluded that it was not satisfied that there were “compelling reasons for not applying the Schedule 3 criteria” and that Mr Tang did not meet cl 820.211(2)(d)(ii): at para [79]. Given these conclusions, the Tribunal further observed that it was “not necessary to consider whether the parties have ever been in a genuine and continuing relationship…”: at para [80].

12    The findings of the Tribunal of relevance to the present appeal were primarily those set forth as follows (without alteration):

57.    The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

…

75.    The Tribunal has considered all the claimed aspects of the relationship between the applicant of the sponsor. As stated above, the Tribunal is not satisfied that the parties were in a de facto relationship until October 2013 when they decided to arrange a marriage ceremony to declare their relationship and then apply for the Partner visa. Even accepting the claim that they started their relationship in July 2011, the Tribunal is not satisfied that there is anything in the nature of the relationship between the parties, including the claimed length of the relationship from July 2011, which would provide a compelling reason for not applying the Schedule 3 criteria.

…

77.    The Tribunal is not satisfied that there is anything in the nature of the relationship between the applicant and the sponsor, including its claimed length, when considered both individually and in combination what would provide a compelling reason for not applying the Schedule 3 criteria.

13    It was the process of reasoning whereby the Tribunal concluded that there were no “compelling reasons for not applying the Schedule 3 criteria” which was the focus of the argument advanced by Counsel on behalf of Mr Tang.

The new argument sought to be advanced

14    Leave may be granted to an appellant to raise on appeal an argument not previously relied upon, where it is expedient in the interests of justice to do so: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], (2004) 238 FCR 588 at 598 to 599 per Kiefel, Weinberg and Stone JJ (“VAUX”). Of relevance to the grant of leave is whether an appellant had the benefit of legal representation at first instance: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ (“Iyer”).

15    The new argument sought to be advanced was expressed as follows in the Amended Notice of Appeal (without alteration):

1.    The Tribunal found at paragraph 57 that it “has not made any critical assessment of whether, at the time of application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship”. A critical assessment of the parties’ relationship was relevant to the Tribunal’s determination as to whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal’s refusal to make a critical assessment involved jurisdictional error. The Federal Circuit Court erred in not recognising this jurisdictional error.

2.    The Tribunal stated at paragraph 63 that statements of two friends “do not provide any details of why they would have knowledge of the parties were living together from July 2011”. The Tribunal went on to find at paragraph 68 that the appellant and sponsor commenced their de facto relationship in October 2013. Whether the appellant and sponsor commenced living together from July 2011 was an important question before the Tribunal. The statements of the two friends contained their contact details. The Tribunal’s failure to contact the two friends and ask them questions to ascertain the basis and extent of their knowledge that the appellant and sponsor commenced living together from July 2011 give the applicant an opportunity to obtain the additional details from the friends involved jurisdictional error. The Federal Circuit Court erred in not recognising this jurisdictional error.

The argument, in very summary form, seeks to contend that the Tribunal erred in not making inquiries of the “two friends”.

16    Leave to raise the new argument is refused essentially because:

    there is no explanation as to why the argument was not previously raised for consideration by that Court, especially in circumstances where Mr Tang had been represented by Counsel before the Federal Circuit Court (cf. Iyer [2000] FCA 1788 at [24]); and

    the argument is without any real prospects of success.

It is the latter reason which is more persuasive. But both reasons should be briefly explored.

17    As to the former reason, there is an understandable reluctance on the part of appellate courts to permit a party to depart from the manner in which a case was advanced and resolved at first instance: Dart Industries Inc v Décor Corp Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J (Jenkinson and Gummow JJ agreeing). Indeed, it has been said that “[t]he High Court has made it clear that circumstances in which an appellate court will allow a point not taken at first instance to be raised in the appeal are very limited”: Anne v Ask Funding Ltd [2015] FCA 1111 at [55], (2015) 240 FCR 229 at 237 per Rangiah J. “To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant”: WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 at [19], (2004) 204 ALR 624 at 629 per French J. But leave to raise a new argument on appeal may be granted where it is expedient in the interests of the administration of justice to do so: VUAX [2004] FCAFC 158, (2004) 238 FCR 588. Kiefel, Weinberg and Stone JJ there concluded (at 598 to 599):

[46]    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: …

[47]    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

18    In the present case, it may be noted that:

    Mr Tang was represented by Counsel before the Federal Circuit Court, in circumstances where the Grounds of Review before that Court were given considerable attention, including the amendment to those Grounds as first filed; and

    it was expressly accepted by Counsel on appeal that there is no explanation as to why the argument now sought to be advanced on appeal was not previously relied upon.

19    As such, the first branch of the Court’s consideration in VAUX (at para [48]), being whether there is an adequate explanation for the failure to raise the Ground of Review in the first instance, is not made out in the present proceeding.

20    As to the second branch of VAUX, namely whether there is merit in the new Ground of Appeal sought to be raised, the circumstances in which an administrative decision-maker is required to make inquiries and to elicit evidence going beyond that relied upon by a claimant has been the subject of some divergence of views expressed over the years. The starting point, however, remains the general proposition that “when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application”: Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29]. French J there went on to observe that there “is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant’s presentation”. It is, generally speaking, for a claimant “to put whatever evidence or argument he wishe[s] to the decision-maker to enable her to reach the requisite state of satisfaction”: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 6 at [76], (2006) 151 FCR 214 at 226 per Heerey, Conti and Jacobson JJ. A failure on the part of an administrative decision-maker to make inquiries to elicit information beyond that which is presented for consideration by a claimant, generally speaking, exposes no jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], (2009) 83 ALJR 1123 at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The circumstances in which inquiries should be made to elicit information not provided by a claimant have been variously expressed as “strictly limited” (cf. Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469 per Hill J (Gummow and O'Connor JJ agreeing)) and confined to “a narrow range of circumstances” (SZTDX v Minister for Immigration and Border Protection [2014] FCA 515 at [20] per Perry J citing, with approval, the reasons of the Federal Circuit Court being appealed from). Where any such “limits” are to be set and the “circumstances” which may occasion the need to make inquiries have not yet been fully explored.

21    The inquiries which the Tribunal failed to make which, it is said on behalf of Mr Tang, vitiated its decision were inquiries directed to his “two friends” which, had they been made, would have been of central relevance to the point of time at which he and his sponsor started their de facto relationship. On his account, had the Tribunal made those inquiries the evidence obtained would have assisted in a conclusion that that relationship commenced in July 2011, rather than October 2013. The date at which the relationship commenced, upon the case advanced on behalf of Mr Tang, was of immediate importance to whether there were “compelling reasons” for not applying the Schedule 3 criteria.

22    The date at which the relationship commenced, it is accepted, was of importance to the reasoning of the Tribunal. And, had inquiries been made of the “two friends”, it may further be accepted, further evidence may have been obtained of relevance to the question as to when the relationship commenced. Both of the “two friends” had provided Statutory Declarations in support of the claim made Mr Tang – one friend (a “saleslady”), stated that Mr Tang and the sponsor had had a “de facto relationship continuously together for more than two years since July 2011”; the other friend provided a Statutory Declaration in 2013 stating that the sponsor had said “around three years ago … that she decided to have a long term relationship with [Mr Tang]”. Contact details, including a phone number, were provided by each of these two “friends”.

23    Notwithstanding the unequivocal content of the statements made by each of these “two friends”, Counsel on behalf of Mr Tang maintained that further inquiries should have been made of them. Each, he observed, had provided telephone numbers and could readily have been contacted to have provided further information to the Tribunal in respect to the nature of the relationship between Mr Tang and his sponsor and (in particular) when the relationship commenced.

24    Even though it may be accepted that the Tribunal’s finding as to the de facto relationship between Mr Tang and his sponsor having commenced in 2013 was of importance to the conclusion it reached, it is unnecessary in the present appeal to explore in any great detail those circumstances in which an administrative decision-maker may be called upon to go beyond the materials presented by a claimant and make further inquiries with a view to supplementing that body of materials. On the facts of the present case, no reservation is expressed in concluding that there was no imperative upon the part of the Tribunal to make inquiries of either or both of these “two friends” as to when the de facto relationship commenced because:

    even though the Tribunal had been critical of the absence of detail provided in each of the two Statutory Declarations (at para [63]), the absence of detail had previously been brought to the attention of Mr Tang by the delegate of the Minister when making his initial decision in June 2016, where the delegate noted she gave the Statutory Declarations “little weight” due to the “overall lack of documentary evidence in support of the timeframe [of the relationship]...claimed”. Having been alerted to the potential need to thereafter provide to the Tribunal greater detail, Mr Tang advanced his claims before the Tribunal and supported those claims in such manner as he saw fit. It was not part of the functions of the Tribunal to make out the case for Mr Tang (cf. Prasad Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J) and to supplement potential deficiencies in the factual materials upon which those claims were sought to be supported by the Tribunal itself making further inquiries; and

    having formed the conclusion that the de facto relationship commenced in October 2013, the Tribunal had (in any event) proceeded to state that it would have reached the same conclusion as to the absence of “compelling reasons” even had it formed the view that the relationship commenced in 2011 (as claimed by Mr Tang): at para [75]. The absence of any inquiry made of either of the “two friends”, on such an approach, thus would not have impacted upon the Tribunal’s ultimate conclusion.

CONCLUSIONS

25    In the absence any explanation as to why the argument now sought to be advanced on appeal was not previously advanced before the Federal Circuit Court, and the absence of any merit in the proposed new argument, leave to raise the argument is refused.

26    The Tribunal was not required to make further inquiries of the “two friends” identified by Mr Tang in circumstances where the lack of detail provided by those friends in each of their Statutory Declarations had been brought to his attention and where it remained within his control to obtain such further information from each of them as may have assisted his claim that the de facto relationship commenced in 2011 and not 2013. Different considerations may arise where deficiencies in evidence have not previously been drawn to the attention of a claimant or where deficiencies in evidence are beyond the ability of a claimant to rectify, but susceptible of rectification by the Tribunal. The making of further inquiries of the “two friends” would not, in any event, have led to a different result given the express statement by the Tribunal that it would not have found “compelling reasons” even had the relationship extended back to 2011.

27    In the absence of any other Ground of Appeal being advanced for consideration, the appeal must fail.

28    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, as either assessed or agreed.

Associate:    

Dated:    12 April 2019