FEDERAL COURT OF AUSTRALIA

Naikar v Minister for Immigration and Border Protection [2019] FCA 502

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed or agreed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (the primary judge) dismissing an application for judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the Minister (the delegate) refusing to grant the appellant a Partner (Residence) (Class BS) visa (the Partner visa).

2    The Tribunal found that it was bound to affirm the decision under review because the appellant did not satisfy the evidentiary requirements of reg 1.24 of the Migration Regulations 1994 (Cth) (the Regulations), which, by virtue of sub-reg 1.23(8), the appellant had to comply with in order to satisfy the definition of a “non-judicially determined claim of domestic violence”, which, in turn, is required to satisfy cl 801.221(6) of sch 2 to the Regulations in circumstances where the relationship between a visa applicant and their sponsoring partner has ceased.

Background

3    The appellant first arrived in Australia on 15 September 2012 as a holder of a subclass 300 (Class TO) Prospective Marriage visa on the basis of his intention to marry Ms Vijay Latchmi Kamchi Reddy (the sponsor). He married his sponsor on 22 September 2012.

4    On 13 February 2013, the appellant lodged a combined application for a subclass 820 (Class UK) Partner visa (the 820 visa) and the Partner visa. On 10 May 2013, he was granted the 820 visa.

5    The relationship between the appellant and the sponsor broke down and in April 2016 the sponsor withdrew her sponsorship. The appellant was invited by the Department of Immigration and Border Protection to comment on the relationship breakdown by letter dated 19 April 2016.

6    On 2 August 2016, the delegate refused to grant the Partner visa.

7    On 12 August 2016, the appellant lodged an application for review with the Tribunal.

Proceedings before the Tribunal

8    On 4 July 2017 the Tribunal requested information under s 359(2) of the Migration Act 1958 (Cth) (the Migration Act) regarding the appellant and sponsor’s relationship, or if the relationship had broken down, any evidence that the appellant otherwise met the criteria for the Partner visa. On the same day, the Tribunal also wrote to the appellant advising that the Secretary of the Department had provided a certificate issued under s 375A of the Migration Act, and provided the appellant with a copy of that certificate. The appellant was invited to make submissions on the validity of the certificate by 11 July 2017.

9    On 10 July 2017, the appellant’s representative, Clothier Anderson Immigration Lawyers (Clothier Anderson), requested an extension of time within which to provide a response to the Tribunal’s letters dated 4 July 2017, which was granted.

10    On 17 July 2017, the appellant advised the Tribunal of the appointment of a new representative, Ms Jessica Murray, who was also the appellant’s new partner.

11    On 24 July 2017, Clothier Anderson provided a response to both the Tribunal’s letters dated 4 July 2017 and gave some additional evidence about the appellant’s relationship with the sponsor prior to the breakdown.

12    Clothier Anderson’s letter also raised a new claim, being that the appellant had suffered family violence at the hands of the sponsor and that he intended to rely on cl 801.221(6)(c) of sch 2 to the Regulations.

13    On 9 August 2017 the Tribunal sent a letter to Ms Murray inviting the appellant to a hearing, which stated the following:

Please carefully note the following. In a letter dated 24 July 2017 your former representative, Ms Karyn Anderson [of Clothier Anderson], informed the Tribunal that you claim to have been the victim of family violence perpetrated by the sponsor. The Migration Regulations contain very specific requirements for cases where there is a claim of family violence. You will see that an extract from the Regulations is attached to the decision of the Minister’s delegate in your case dated 2 August 2016. If you cannot meet the requirements of the Regulations, the Tribunal may affirm the delegate’s decision.

14    The appellant appeared by video link before the Tribunal on 24 August 2017 to give evidence and present arguments, with the assistance of Ms Murray. The Tribunal also received oral evidence from Ms Murray, as well as from the appellant’s sister.

15    At the conclusion of the hearing, the Tribunal affirmed the decision not to grant the appellant the 801 visa and gave oral reasons.

16    On 4 September 2017, the Tribunal made a case note to the effect that, after oral reasons were given, Ms Murray said that there was an intervention order which the appellant had obtained and given to Clothier Anderson. The Tribunal noted Clothier Anderson’s response to the s 359(2) letter and said that Ms Murray would have to submit a copy of the order by 31 August 2017 (i.e. within seven days), for it to be considered. The Tribunal noted that nothing further had been received as at 4 September 2017.

17    The relevant findings of the Tribunal are as follows:

11. I say, first, that I am satisfied that the parties were validly married, but when it comes to the question of whether there was a genuine relationship, I would say that the delegate did not raise an issue about that in the primary decision. There could perhaps have been somewhat more evidence provided to the Tribunal about that, especially when earlier this year the Tribunal issued an invitation under section 359(2) of the Act. However, there are, apart from the certificates I have already mentioned, photographs and statutory declarations in support of the application, and evidence that the parties travelled from Australia to Fiji and back, as I have mentioned. I note in passing that Ms Redi is an Australian citizen, originally from Fiji.

12. I now say something briefly about the credit of the parties. The allegations of family violence appear to have been made first in response to the Tribunal’s invitation under section 359(2) of the Act. That is to say, they appear to have been made first only last month (in July 2017). What I heard today included allegations of physical violence that resulted in Mr Naikar telephoning police, and on another occasion being hospitalised.

13. Mr Naikar told me, at least in general terms, that he had told his sister, Ms Nevens, about mistreatment of him by Ms Redi, but when Ms Nevens gave evidence to the Tribunal she mentioned some, perhaps, psychological abuse, or emotional abuse, but she had no knowledge of any physical mistreatment. This casts some doubt on the veracity of Mr Naikar’s claims, but it is not for that reason that the application is unsuccessful. I turn to that matter now.

14. The requirements under the Regulations for proving or establishing family violence are very prescriptive and very strict. They may be a judicially determined claim in circumstances where relevant court orders have been made. Mr Naikar confirmed that there are no relevant court orders. On the contrary, there are court orders obtained by Ms Redi against him, being an intervention order, but also there was a criminal matter in which Mr Naikar was placed on a (good behaviour) bond after allegations were made of violence by him towards Ms Redi.

15. I have to determine, then, whether there is a non-judicially determined claim of family violence.

16. I pause here to say that there was a certificate given by a delegate under section 375A of the Act. The Tribunal’s dealings of such certificates are governed by a Full Federal Court decision of the Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. Accordingly, the Tribunal provided a copy of the certificate to Mr Naikar’s then representatives, and invited submissions. There was no submission that the certificate was invalid. The Tribunal has ultimately concluded that the certificate was invalid, but because of concessions made in evidence by Mr Naikar about relevant criminal history it was unnecessary for the Tribunal to make disclosure or to give Mr Naikar particulars under section 359A or 359AA of the Act.

17. Under the particular provision of the Regulations, being regulation 1.23, a non-judicially determined claim can be made where there is evidence in accordance with regulation 1.24 provided. In essence, that is a statutory declaration by the applicant and two items of evidence specified by the Minister for the purpose under legislative instrument IMMI 12/116. I mention, in passing, that a decision of the Federal Court in Minister for Immigration and Citizenship v Pham [2008] FCA 320 is relevant.

18. There is no statutory declaration in this case. Mr Naikar told me that he believed he had made one with the help of his former migration agents, but none has been submitted to the Tribunal. This is despite the migration agents responding last month to the section 359(2) invitation. All the agents did was to provide some material in support of the relationship, and to note that there were allegations of family violence.

19. So there was no statutory declaration, but also there were no items of evidence of the other kind required. It is only today at the hearing that a psychologist’s report has been provided. That is noteworthy for a number of reasons. To comply with the requirements it needs to be a statutory declaration. It is not a statutory declaration. But it also needs to have the psychologist give the opinion that there was family violence, and to give reasons for that opinion, and to identify the alleged perpetrator. The very brief psychologist’s report by Dr Cassandra Dean, dated 13 August 2016, that was submitted does none of those things.

20. Mr Naikar told me in evidence that he had been hospitalised and that he had once telephoned police, but he had no reports either by police or by any hospital or doctor, or any social worker, or any family consultant or otherwise, that would satisfy the minimum two items of evidence from the relevant list being provided.

21. It is significant that Mr Naikar, who has until very recently had very experienced migration agents acting on his behalf, has had over a year to obtain and submit this material. I say that because he conceded in evidence that he had received an invitation from the Department in mid-2016 to comment on the cessation of the relationship and to comment on whether he was otherwise eligible for the visa. He did respond to the Department, but his response to the Department was merely to say that the relationship at that stage was continuing. Since then, because he has had the primary decision, and what is contained in the primary decision on the subject of family violence, referring there to relevant parts of the regulations, Mr Naikar has had the opportunity to provide this material.

22. Even more recently, when the Tribunal issued its section 359(2) invitation, Mr Naikar has had that opportunity, but as I have said, through his former agents and still now he has not provided that evidence. It is my view, based on what is before the Tribunal, most unlikely that he would be able to obtain and provide all of that required evidence now, and as I have noted, there was, in any event, the discrepancy in his and his sister’s oral evidence, which is noteworthy.

23. In summary, this seems to be a very unfortunate set of circumstances, where Mr Naikar came to Australia and, having entered a relationship with Ms Redi, the preponderance of the evidence before the Tribunal is that Ms Redi has been the victim of family violence and has involved police and the courts in that regard.

24. There is really no evidence, apart from some oral evidence given by Mr Naikar today and Ms Murray today, that would indicate that there has been family violence perpetrated by Ms Redi, but even if that oral evidence were to be accepted, what the Regulations very strictly require has not been provided, and it is because that has not been provided that Mr Naikar does not meet the requirements of regulation 1.24. As such, a non-judicially determined claim of family violence has not been made under regulation 1.23. This means that Mr Naikar, who also has not put forward any claims that Ms Redi is either deceased or that Mr Naikar has any relevant custody or access rights in relation to any dependent children, cannot satisfy the relevant clause of the Regulations, being clause 801.221.

(the Tribunal spelled “Reddy” as “Redi”)

Proceedings before the primary judge

18    As the primary judge correctly explained, the Tribunal was obliged by the terms of s 65(1)(b) of the Migration Act to affirm the decision of the delegate because the criteria prescribed for it had not been satisfied:

66. The criteria for a Partner visa are set out in Sch 2 to the Migration Regulations 1994. Sub-class 801 in Sch 2 prescribes the primary and secondary criteria that must be satisfied in relation to a Partner visa application at the time of the decision. By sub-cl 801.21, no criteria are to be satisfied at the time of application. Sub-clause 801.22 prescribes the criteria which must be satisfied at the time of the decision. Where the criteria prescribed for such a visa have not been satisfied, the application must be refused.

67. Relevantly, criteria are prescribed which must be satisfied where the applicant’s relationship with their sponsor has ceased: par 801.22(6)(b). In the present case, the applicant needed to satisfy the requirement that he had suffered family violence that was committed by his sponsor: para 801.221(6)(c)(i)(A).

68. The expression ‘family violence’ is not defined by reg 1.03. However, Div 1.5 of the Regulations which comprises regs 1.21 – 1.29 contains Special provisions that relate to family violence.

69. As there was no judicial determination which turned upon an allegation that the applicant had been the victim of or subjected to domestic violence by his sponsor, for the applicant to obtain a Partner visa based upon him having been the subject of domestic violence by his sponsor it was necessary for him to satisfy the criteria applicable to a non-judicially determined claim to family violence.

70. Relevant family violence means conduct, whether actual or threatened, towards an alleged victim that causes them to reasonably fear for, or to be reasonably apprehensive about, his or her well-being or safety: reg 1.21. Regulation 1.23 addresses the circumstances in which a person is taken to have suffered or committed family violence.

71. Clauses 1.23(8)-(14) prescribe the circumstances in which, for the purposes of the Act, family violence is suffered or committed in cases where a non-judicially determined claim of family violence is made. The expression non-judicially determined family violence bears the respective meanings that are given to it by reg 1.23(8)-(9): reg 1.21. The meaning of the expression that is provided by reg 1.23(8) is not material. By operation of reg 1.23(9), an application for a Partner visa is taken to include a claim of non-judicially determined family violence where each of the criteria in that regulation was met.

72. By reg 1.23(9)(c), the alleged victim, or a person on his or her behalf, is required to present evidence in accordance with reg 1.24 that the applicant had suffered family violence (as defined), and that the applicant’s sponsor had committed that violence.

73. Regulation 1.24, which is titled Evidence, required the applicant to furnish a statutory declaration under reg 1.25 together with the “type and number of items of evidence specified by the Minister by instrument in writing” for the purposes of para 1.24(b).

74. The further criterion to be satisfied required the applicant to furnish the type and number of items of evidence as specified by the Minister.

75. For this purpose, Ministerial Instrument IMMI 12/116 specifies the types of evidence that are required together with the number of items of evidence which are required for the purposes of para 1.24(b). Schedule 1 to IMMI 12/116 requires that a minimum of two items of evidence from that schedule (and not more than one item of each type of evidence) be presented for the purposes of reg 1.24(b).

19    It was not disputed before the primary judge, nor in this court, that the appellant had not furnished to the Tribunal a statutory declaration under reg 1.25, or any items in evidence in accordance with reg 1.24 and Ministerial Instrument IMMI 12/116 (which include, among other things, medical or hospital reports, a report or record of assault, a witness statement or a statutory declaration, a report from a family/domestic violence crisis centre or a statutory declaration made by a registered psychologist).

20    The primary judge held that it was clearly open to the Tribunal to find that the appellant had not satisfied the requirements for a claim for non-judicially determined family violence and that the Tribunal was bound to affirm the delegate’s decision to refuse the Partner visa. The primary judge found as follows:

77. It was clearly open to the Tribunal to find that the applicant had not satisfied the requirements for a claim for non-judicially determined family violence. Absent some other consideration, the Tribunal was bound to affirm the Delegate’s decision to refuse the Partner visa: Reasons, [18]-[24].

78. It follows that I reject the ground on which judicial review is sought and that the application must be dismissed.

21    Having arrived at this conclusion, the primary judge went on to find that the Tribunal did not discharge its obligations to the appellant in relation to his criminal records consistently with the mandatory obligations imposed by s 359A(1), but that it would be inutile to grant any relief because (at [109]):

The applicant could not have established the factual circumstance required by cl 801.221 to support his claim to be a victim of non-judicially determined family violence by reason that he had not complied with the evidentiary requirements prescribed by regs 1.24 and 1.25. It is therefore clear that the applicant could not have complied with those criteria which are essential to ground satisfaction that a Partner visa should be granted. Notwithstanding a want of compliance with s 359A or s 359AA, there would be no utility in the grant of relief.

The appeal

22    The Minister, for whom Ms Julia Lucas of counsel appeared, acknowledged that the appellant was not represented before the primary judge, but said that leave to raise new grounds of appeal in this court should be refused, in particular having regard to the existence of the separate and independent basis for the decision which forms the substance of the Minister’s response to this appeal, citing VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]; Gupta v Minister for Immigration and Border Protection & Anor (2017) 255 FCR 486 at [80].

23    The appellant, who was represented by Mr Angel Aleksov of counsel, sought to argue four grounds of appeal, by an amended draft notice of appeal (not prepared by counsel) dated 1 March 2019, viz:

(1)    The Tribunal breached s 359A of the Migration Act 1958 (Cth) in respect of criminal charges.

(2)    The Tribunal failed to consider or understand the appellant’s sister’s evidence.

(3)    The Tribunal failed to comply with s 359A(1) in relation to Ms Nevis’ evidence.

(4)    The primary judge wrongly accepted the submission of the Minister that he did not have to adduce evidence of information before the Tribunal from the appellant’s former spouse to the Minister.

24    The Minister agreed that the Tribunal did not consider the appellant’s sister’s evidence, but submitted that it is a factual, not a jurisdictional, error. In that regard, Mr Aleksov submitted:

[T]he Tribunal took evidence from the appellant’s sister … and thought that her evidence was that any family violence did not extend beyond emotional or psychological abuse. However, [the sister] gave evidence of the appellant’s former spouse “hitting” the appellant. She also gave evidence of highly controlling behaviour by the spouse, including deprivation of food, insistence on the appellant sleeping outside, and threats to act in a way that would cause the appellant to lose his visa.

This evidence was central to the issues in the review and had to be considered and addressed specifically by the Tribunal in the performance of its review function. The failure to do so in a statement of reasons justifies an inference that the Tribunal failed to consider this evidence or failed to understand it. That is legal error.

(Citations omitted)

25    The Minister submitted, however, that in light of the Tribunal’s finding that, because the appellant did not meet the evidentiary requirements of regs 1.24 and 1.25, it was bound to affirm the decision under review, any “independent” error in the Tribunal’s reasons could not meet the threshold of materiality. In that regard, the Minister relied in particular on this passage from the judgment of the plurality in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1, [2018] HCA 34 at [27]- [30]:

[27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

[28] The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that “[d]ecison-making is a function of the real world”.

[29] That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 [23]; [2015] HCA 51 “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(Citations omitted, emphasis added).

26    In short, the Minister’s submission was that the threshold of materiality cannot be met in the event that the Tribunal failed to comply with any other statutory condition because complying with that condition could have made no difference to the decision that was made in the circumstances in which that decision was made.

27    Mr Aleksov submitted that there was “tension” between what the plurality in the High Court in Hossain said in the passages extracted above and its decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, and that I should consider referring the issue to a Full Court because of the “very difficult exercise of determining whether Hossain has impliedly qualified or overruled SAAP.” I do not agree. In my view, no such issues arise and the passages extracted above, in particular the highlighted passage, is the relevant test by which this court is bound in a case such as this.

28    He also submitted that there was some realistic possibility that the Tribunal may have adjourned the review to enable the appellant to rectify his failure to produce anything to satisfy the requirements for a claim for non-judicially determined family violence. At one point in his oral submissions, counsel for the appellant went so far as to say that although “on 24 August 2017 – being the date of the decision … the Tribunal was bound not to be satisfied that the applicant met the criteria on that date. I accept that. But it was not bound to exercise power in the way that it did … One option was to delay to give the applicant … an opportunity [for an adjournment]”. He also submitted that the idea of an adjournment was “very much on the cards”.

29    I disagree. In my view, in light of the fact that the appellant had been reminded in correspondence in the most unambiguous terms of the need to provide three pieces of independent, corroborative evidence, the chances of being granted an adjournment to give him another chance would have been remote in the extreme. And I do not interpret the Tribunal’s reasons (or what occurred afterwards when the appellant was given a chance to produce the intervention order) as suggesting that it imagined any proper basis for an adjournment. As the Tribunal noted, the appellant had been on notice of the evidentiary requirements he was required to meet since 2 August 2016, when they were provided with the delegate’s decision. He was told again in the 9 August 2017 letter inviting him to attend the Tribunal hearing. And he was even given another opportunity to provide evidence of his claim that he had been the victim of family violence at the hands of his wife by the Tribunal, but as the Tribunal noted in its reasons (at [22]):

Even more recently, when the Tribunal issued its s 359(2) invitation, Mr Naikar has had that opportunity, but as I have said, through his former agents and still now he has not provided that evidence. It is my view, based on what is before the Tribunal, most unlikely that he would be able to obtain and provide all of that required evidence now…

30    But in any event, the Tribunal did provide the appellant with a chance to adduce further evidence following his representative’s indication that there was an “intervention order” to be produced. The Tribunal gave the appellant 7 days to produce some evidence of it, but none was forthcoming – and, to this day, none has been produced. Nor was it suggested at the hearing that the appellant could produce a statutory declaration under reg 1.25, or any items of evidence in accordance with reg 1.24 and Ministerial Instrument IMMI 12/116 (like a medical or hospital report, a report or record of assault, a witness statement or a statutory declaration, a report from a family/domestic violence crisis centre or a statutory declaration made by a registered psychologist).

31    Ms Lucas submitted that the fact that the failure of the appellant to meet the evidentiary requirements of regs 1.24 and 1.25, and the error in relation to the evidence from the appellant’s sister, were independent of each other is made clear in the Tribunal’s reasons. The passage from [22] of the Tribunal’s reasons, which is extracted above, continues after the ellipses included in that quote as follows: “… and as I have noted, there was, in any event, the discrepancy in his and his sister’s oral evidence, which is noteworthy”. The phrase “in any event” makes it clear that the Tribunal regarded the appellant’s failure to provide the evidence, that he had been told on countless occasions he needed to provide, as being independent from what is now considered to be an error in relation to the sister’s evidence.

32    But in any event, the question of whether an adjournment would have been granted in such circumstances invites the very type of conjecture the High Court has said repeatedly is impermissible. In Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [15] and [36], the plurality said this:

[15] [The dissentient in the Full Court] indicated that, if she were wrong about the correct approach, she would have inclined to the alternative view that the two visa criteria in issue before the Tribunal were not entirely independent of each other. The connection between them which she postulated was that if the Tribunal had been satisfied that there were compelling reasons for not applying the criterion relating to the timing of the making of the application, the Tribunal, properly instructed, might have been persuaded to delay making its decision until such time as Mr Hossain was able to satisfy it that he had either paid his debt to the Commonwealth (as he had told the Tribunal he intended to do and as in fact he later did) or entered into an arrangement with the Commonwealth for payment to occur.

….

[36] The suggestion of [the judge] in dissent, that the Tribunal might have delayed making its decision to allow Mr Hossain time to meet the public interest criterion had it not erred in construing and applying the criterion relating to the timing of the making of the application, rises no higher than conjecture. The Tribunal was not asked to delay making its decision and, in any event, did not believe Mr Hossain when he said that he intended to pay his outstanding debt to the Commonwealth.

33    Justice Edelman said, to similar effect, as follows, at [77]-[78]:

[77] The appellant … submitted that the error of law made by the Tribunal in relation to criterion 3001 was not independent of the Tribunal’s consideration of public interest criterion 4004. In oral submissions, the appellant submitted that it was possible to infer that absent the error of law by the Tribunal, and consistently with the requirements of public interest criterion 4004, the appellant would have repaid his debt or would have satisfied the Tribunal that he had made appropriate arrangements to repay the debt before the Tribunal gave its decision. This inference was said to arise from: (i) the fact of the amount of the debt, $7,404; (ii) the fact that the appellant’s partner had an income; and (iii) the fact that the debt was repaid in May 2016.

[78] The error in this submission is that an assessment of whether an error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome, does not take place in a universe of hypothetical facts. The materiality of the error is assessed against the existing facts before the Tribunal. Those existing facts were that the appellant had not repaid his debt nor had he made arrangements to do so. As the Tribunal observed, (i) these requirements had not been satisfied at the time of the hearing before it and (ii) nine days later, at the time of its decision, the appellant had not presented any evidence that he had repaid, or made arrangements to repay, the debt. There is no evidence that the appellant sought any adjournment of the hearing before the Tribunal, or that he requested any delay before the Tribunal delivered its decision, to file any evidence about repayment of his debt or arrangements he had made to repay his debt.

34    In my view, the appellant’s submission on the adjournment question invites the same conjecture about a hypothetical universe. Accordingly, there is, in my view, no merit in the submission.

35    I will now deal briefly with proposed grounds one and three.

36    In my view, there is no merit in proposed ground one. The finding of the primary judge cannot, with great respect, be sustained, because as the Minister contended by his Notice of Contention dated 1 November 2018, the appellant himself volunteered to the Tribunal that his sponsor had obtained an intervention order against him for her protection and a court had convicted him of an offence in relation to her: see s 359A(4)(b) of the Migration Act: “This section does not apply to information … that the applicant gave for the purpose of the application for review…”

37    In my view, the Tribunal correctly found that, based on the appellant’s concession about this criminal history at the hearing, it was unnecessary to put information to the appellant under ss 359A or 359AA of the Migration Act.

38    In any event, even if a failure to comply with s 359A occurred, as the primary judge found, the error is not material, for the reasons given above. It is telling in that regard that although the primary judge analysed the issue in terms of lack of utility, he was correct to conclude that any failure in the observance of those obligations could not have had a material effect on the outcome or occasioned any practical injustice: see the primary judge’s reasons at [110].

39    Proposed ground three is that the Tribunal failed to comply with s 359A(1) in relation to the appellant’s sister’s evidence. But it is not necessary for the Tribunal to make findings with respect to each piece of evidence and the failure of the Tribunal to refer to each piece of evidence does not, in and of itself, constitute a legal error: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [17].

40    But in any event, if there was an error, again, it was not material.

41    By proposed ground four, the appellant sought to contend that the primary judge was wrong to conclude that information relating to the appellant’s sponsor (over which the Minister had foreshadowed a claim for public interest immunity at the hearing before the primary judge) was not relevant to the Tribunal’s review.

42    I have, at the invitation of the parties, inspected the documents in respect of which the claim to public interest immunity is made. In my view, none of them has any relevance to whether the appellant was assaulted or abused by his wife. In any event, as the primary judge concluded, the documents were not relevant to the review, having regard to the fact that there was no reference to the documents in the Tribunal’s reasons and the Tribunal was not under any obligation to notify the appellant of information which it had chosen not to take into account in the conduct of the inquiry (see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [83]).

43    Accordingly, leave to the appellant to file and serve an Amended Notice of Appeal is refused and the appeal will be dismissed, with costs.

Associate:

Dated:    12 April 2019