FEDERAL COURT OF AUSTRALIA

Larney v Minister for Home Affairs [2019] FCA 700

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders (1) and (2) made by the Federal Circuit Court of Australia on 1 August 2018 be set aside and in lieu thereof order that:

(a)    The decision of the Second Respondent dated 3 November 2017 be quashed.

(b)    The matter be remitted to the Second Respondent, differently constituted, for redetermination according to law.

(c)    There be no order as to costs.

3.    The First Respondent pay the Appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for a constitutional writ in respect of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 November 2017 affirming a decision of a delegate of the First Respondent (Minister) not to grant the appellant a Partner (Temporary) (Class UK) (subclass 820) visa (partner visa).

Background

2    The appellant, Mr Larney, is a citizen of Ghana. He arrived in Australia on 8 November 2012 on a Temporary Work (Skilled) (subclass 457) visa (work visa).

3    In mid-October 2013 Ms Sharyn Parker and Mr Larney met. Ms Parker is an Australian citizen. Mr Larney and Ms Parker say they quickly developed a strong bond. Ms Parker thought Mr Larney was very handsome and thought that he seemed kind and genuine. Mr Larney moved in with Ms Parker in late 2013.

4    Ms Parker states that from 9 January 2014 she and Mr Larney had committed to a shared life together to the exclusion of all others. Ms Parker states that Mr Larney makes her life filled with love and happiness. Ms Parker had been separated. She divorced from her former husband in February 2015.

5    On 4 April 2014, in anticipation of her pending divorce, Ms Parker applied to sponsor Mr Larney as her partner to migrate to Australia. Once Ms Parker had secured her divorce Mr Larney applied for migration to Australia as her partner. Doing so required him to provide information relevant to his intended migration. The way he provided that information was to enter his answers to questions asked of him into an electronic form supplied for that purpose by the Department of Immigration and Border Protection (Department). The date on which Mr Larney submitted his completed electronic form is not apparent on its face but there is a letter to Mr Larney dated 3 April 2015 from the Department acknowledging its receipt for the purpose of the processing of his visa application.

6    The form Mr Larney completed had required him to provide extensive details concerning not only his relationship with his sponsor, Ms Parker, but also, inter alia, about his identity and his family circumstances in Ghana.

7    In answer to a question as to whether he had any dependent family members not included in his application, Mr Larney disclosed that he had two male children.

8    Mr Larney answered in the affirmative to a question asking whether each son was a biological or adopted son of both the applicant and the sponsor. These answers were obvious errors (the timing of at least the first of his children makes that clear), but nothing turns on this. It is not suggested Mr Larney’s answer in that regard was false or misleading in the sense of being purposely untrue.

9    To a later question, “[h]as the applicant been in any previous relationships with persons other than the sponsor?” Mr Larney answered “No”. This appeal turns on the significance properly to be attributed to that answer.

10    On 23 June 2016, Mr Larney was sent a letter from an officer of the Department. The officer advised Mr Larney that he or she had begun processing his application, and asked him to supply more information. The further information he was asked to supply included the following:

Other Requirements

You are required to declare all previous relationships. On your completed application form, however, you have answered “no” to the question related to this matter. In light of the fact that you have included information in relation to 2 non-migrating children, I request that you complete a Form 1023 (notification of incorrect answers) and amend the information accordingly. If you were previously married, then divorced, a copy of the Divorce record will also be required.

11    It may be noted that that letter appears to assume that the fact Mr Larney had named two non-migrating children of itself established that he had incorrectly answered the question about previous relationships.

12    On 5 July 2016, Mr Larney’s migration agent Mr Nino Sekyere-Boakye contested that assumption. He replied on Mr Larney’s behalf:

…With regards to the request to complete a form 1023 (notification of incorrect information) Mr Samuel [Larney] said the information provided in the application is correct. He has never been married or been in a de facto relationship. He had two children with the mother of his children in Ghana but they were never [sic] lived together or got engaged. It was just a casual relationship. The mother of his children is currently married and living with her husband. The children they had together are living with Mr [Larney’s] mother.

13    The Department had some reason to suspect Mr Larney’s explanation was untrue. Within its records was an undated note one of its officers had made. I infer it was made in late 2012, given its reference to Mr Larney having arrived safely. The note is in reference to a phone call from Mr Larney’s former work visa sponsor. The critical part read as follows:

Samuel has arrived safely in Australia and whilst he has come here as a single person he has now informed us that he has a wife and a two year old son in Ghana. [I am] not sure what we need to do with this information.

14    On 8 September 2016 the Department accordingly sent Mr Larney a “procedural fairness letter”. Relevantly, the letter stated as follows:

Invitation to comment on information for a Partner (Temporary) (class UK) (subclass 820)/ Partner (Residence) (class BS) (subclass 801) visa

It is a requirement for the grant of a Partner (subclass 820) visa that the applicant satisfies Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Migration Regulations 1994. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

•    The application for the visa; or

•    A visa that the applicant held in the period of 12 months before the application was made.

If there is such evidence, subclause 4020(4) provides that PIC 4020(1)(a) or (b) and subclause 4020(2) will nonetheless be satisfied if the Minister is satisfied that:

•    compelling circumstances that affect the interests of Australia; or

•    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the grant of the visa.

As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020(1), with the result that this visa application may be refused.

On 08 November 2012, you arrived in Australia as the holder of a Temporary Work (Skilled), subclass 457 visa, under the sponsorship of Gray’s Rural Services Pty Ltd. After your arrival in Australia, your employer reported to the Department that you had informed them of your personal circumstances that had not [been] declared to them previously, in that you had a wife and 2 year old child in Ghana. Departmental records also confirmed that your employment with your sponsor was terminated on 21 December 2012 as you did not meet the requirements of a fully qualified diesel fitter under Australian standards. Your employer also funded your return to Ghana, in which you departed Australia on 21 December 2012.

On 08 February 2013, you returned to Australia as your subclass 457 visa was still in effect. Your subclass 457 visa was subsequently cancelled by the Department on 08 May 2015, due to your cessation of employment with your employer sponsor.

On 03 April 2015, you lodged your partner visa application based on your claimed de facto relationship with your sponsor, Sharyn Parker. You also declared that you had two non-migrating deponents …

On 23 June 2016, correspondence from the Department was sent to you and you were informed of the following:

You are required to declare all previous relationships. On your completed application form, however, you have answered “no” to the question related to this matter. In light of the fact that you have included information in relation to 2 non-migrating children, I request that you complete a Form 1023 (notification of incorrect answers) and amend the information accordingly. If you were previously married, then divorced, a copy of the Divorce record will also be required.

On 05 July 2016, in response to this request, your Migration Agent submitted the following related information:

With regards to the request to complete a form 1020 (notification of incorrect information) Mr Samuel [Larney] said the information provided in the application is correct. He has never been married or been in a de facto relationship. He had two children with the mother of his children in Ghana but they were [sic] never lived together or got engaged. It was just a casual relationship. The mother of his children is currently married and living with her husband. The children they had together are living with Mr [Larney’s] mother.

Based on the information held on departmental records, the opportunity extended to you to amend any details with regard to any of your previous relationships, and the subsequent response stating that you have never previously been in a de facto or spousal relationship, I consider that you have provided false and misleading information to the Department. I also consider that this information was provided to the department with the intention of satisfying the delegate that you have never been in a de facto or spousal relationship previously, which is in material particular to your application.

You may provide comment on the information that is considered to be false or misleading or the document that is considered to be bogus, and specify if you believe there are any compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) and (2) to justify the granting of the visa.

15    In response Mr Larney submitted a statutory declaration dated 19 September 2016. In it he deposed:

I, Samuel Jewel Larney … solemnly declare to the Australian Government that I have never been married. I had two children with the same woman however we never got married. I arrived in Australia on 08 November 2012, as the holder of a Temporary Work (Skilled) subclass 457 visa, under the sponsorship of Gray’s Rural Services Pty Ltd. After my arrival in Australia, my employer asked me if I had any dependent children. I told them I had one boy in Ghana. They told me they could sponsor my child to join me because I was lonely. They asked me if my child’s mother could accompany him because it would be difficult for me to combine work and take care of one young boy. I told my employer I was not married to my child’s mother because she was not ready for marriage. I told them I was going to contact her and ask her again if she was prepared to marry, she again declined my request.

My employer then proceeded to inform the Department of Immigration that I had a partner and child in Ghana but did not disclose them in my application. And they wanted to know how much it would cost me in case we got married and decide to bring them over, so that I can start saving since they will not be able to pay for their sponsorship. I did not ask them to call the department on my behalf. They kept asking me if I wanted to sponsor my family. But the mother of my child was not ready for marriage so we did not proceed any further with the application at that time. A second child was conceived with the mother of my first child, on my return to Ghana in December. My parents have guardianship of my two boys because their mother is now married and she does not want the children to be involved in her relationship. She feels having the children in her relationship may cause marital problems.

16    The Minister’s delegate was not persuaded by that evidence. On 2 November 2016 Mr Larney was advised that his application for a Partner visa had been refused. He was provided with a copy of the Delegate’s reasons for decision. The decision maker, after having referred to the above materials, reasoned as follows:

I have considered all of the circumstances relevant to your application and conclude, for the following reasons, that they are not compelling:

Whilst you may not have entered into a legal marriage with the mother of your two children, of which there is no evidence in support of this either way, the fact that you had two children with the same person between 2010 and 2013, indicates to me that your relationship with this person was worthy of disclosure. Your failure to disclose the true composition of your family when applying for your previous 457 visa, combined with the information reported to the Department by your previous employer, and the subsequent inconsistencies identified in your current partner visa application leads me to believe that you have intentionally provided false and misleading information to the Department since you lodged your initial 457 visa.

You make further claims that the mother of your children has since married someone else, your parents have guardianship over your children and you returned to Australia after your employment had been terminated, because you had another prospective employer who was prepared to take over your sponsorship. However, your claims have not been substantiated by any evidence.

In your response, you have not identified any compelling and compassionate circumstances that affect the interests of Australia or compelling circumstances that affect the interest of an Australian citizen, Australian permanent resident or an Eligible New Zealand citizen. I am not satisfied on the evidence before me that such circumstances exist. I am therefore not satisfied that you meet the waiver requirements of PIC 4020(4).

I therefore find that you do not meet the public interest criteria 4020, subclause 4020(1) or 4020(4) and as such you cannot satisfy clause 820.226 in Schedule 2 of the regulations on the date I made my decision.

Decision

As you do not meet clause 820.226, I find that you do not meet the criteria for a Partner (Residence) (Class BS) (Subclass 820) [visa]. Therefore I refuse your application for a Partner (Residence)(Class BS) visa.

Tribunal review of the Delegate’s decision

17    Mr Larney exercised his right to seek merits review of the decision in the Tribunal. His migration agent filed written submissions inter alia as follows:

6.    Arguments for the applicant satisfying Subclause 4020(1)

a.    Mr Larney provided a statutory declaration to the Department to explain away his relationship with the mother of his two children. They were not in any affinal relationship. They never lived together. They knew each other because they lived in the same suburb. He only had two sexual encounters with her which resulted in the birth of their first child.

    When he returned to Ghana in December 2012 they met and had sex which resulted in the birth of their second child. Their children live with Mr Larney’s mother. The mother of his children sent both children to his mother a month after their birth. He has no relationship with him.

    Having a child with someone does not necessarily mean you have an affinal relationship (de facto or Partner relationship with them). Their two sexual encounters which the case officer consider as a relationship did not last for more than three weeks. This cannot be considered as a relationship.

They had a brief (not more than three weeks) sexual encounter in 2010 and 2012. This cannot be considered as a relationship. They never lived under the same roof for even a day.

…

b.    Mr Larney explained in his statutory declaration to the Department that it was his former employer who called the Department to inform them about the none [sic] disclosure of his child and wife to the Departmen [sic] in his 457 visa applicationt [sic]. They did that because they thought it would be good for him to have his child with him in Australia and bringing the mother of the child along would make life easier for him.

He is not privy to the information his employer disclosed to the Department. He was not asked to sign any form and provide evidence of his relationship.

This conversion [sic] is not a basis for concluding that he had a relationship with the mother of his child.

18    Mr Larney also provided the Tribunal with a Ghanaian statutory declaration from Ms Mensah, the mother of both his sons. Ms Mensah stated that she and Mr Larney had never been married either legally or customarily:

4.    That I am the mother of [Child A] and [Child B] born to the father SAMUEL JEWEL LARNEY at the Government Hospital, Tarkwa ….

5.    That I and SAMUEL JEWEL LARNEY were living in concubinage when we delivered the said two (2) children.

…

7.    That SAMUEL JEWEL LARNEY and myself have never got married either legally or customarily.

8.    That when SAMULE JEWEL LARNEY was leaving the shores of Ghana he was never married to me and was a bachelor.

9.    That SAMUEL JEWEL LARNEY has the right to marry any woman of his choice from any part of the world as there is no any [sic] relationship between us. …

19    The Tribunal held a hearing on 3 November 2017. Both Mr Larney and Ms Parker attended to give oral testimony. A transcript of that hearing is an annexure to the affidavit of Ms Kate Briscoe sworn on 21 March 2018. The transcript was read in evidence before the primary judge. By oversight, Ms Briscoe’s affidavit and the transcript were not included in the Appeal Book before this Court. No objection was made to their being handed up and treated as part of the materials properly before the Court.

20    The Tribunal was constituted by two members for the review. The object of the review was explained to Mr Larney by the Tribunal as follows:

MKR:    … Mr Larney, for the purpose of the recording, would you please state your full name and date of birth?

SL:    Samuel … Larney [date of birth redacted].

MKR:    So, as you obviously realise, the reason the application was refused was the public interest criterion 4020, and the reason the immigration officer thought that you have given false or misleading information in your partner visa application and your business visa application was because of the information you have given in relation to your – I’ll call her the – your former partner –

SL:    Yeah.

MKR:    – but we will figure out what her relationship is – so, the mother of your two children. So the immigration officer made the finding that she was your de facto partner, or your partner, and you should have declared her in your partner visa application and your business visa application. So, we do need to talk about your relationship with that person and whether or not she was your partner and whether or not she should have been declared in the visa application.

21    Mr Larney was asked questions about how he had met the mother of his children Ms Mensah. He gave evidence that he had met Ms Mensah in 2009 when working in “the mines”. There had been both a senior and a junior staff club. He gave evidence that Ms Mensah had served him drinks at the junior staff club. She was then around 20 years old. She was a student studying catering and living at a boarding school. She had been working at the junior staff club during a school vacation.

22    Asked how he had gone from meeting her in the junior staff club to her “being [his] girlfriend” Mr Larney answered:

Like, we did have a chat, anytime I go there she was the one who served me, so when she served me I do give her like a tip, I give her some money, and that’s where we go to, like, develop a friendship.

23    He said that after that Ms Mensah had seen him about once a month “depending on how long [she was] in town for”. He was then questioned as follows:

MKR:    All right, so you met some time in 2010, you’re seeing each other once a month, and you’re having talks to each other. How did she become your girlfriend?

SL:    That’s what we call it, that’s like the difference between like – it’s like a language barrier, that’s what we call it, like, when you talk to someone in Ghana now, and if she has met someone today, we call that person to be our girlfriend. That’s why when I came in they were trying to translate … Australians, they don’t use it that way, they say it’s like she’s our missus, even though – and she was using – he was even using his girlfriend to make an example for me, that’s my missus, even though we are not married, but she’s still my missus. And I said no, we don’t use that, we use like girlfriend and boyfriend, those kind of things.

MKR:    All right, so, did you have any other relationships at the same time? Did she have any other relationships at the same time?

SL:    I didn’t really know, because the thing is, like, I don’t know what she – I was not committed to her, so what she was doing on the other side, I was not really sure what she was doing, but –

MKR:    So you considered her to be your girlfriend, but you had no idea whether she had other relationships and you had no … –

SL:    The thing is, I would be working and she would be in school. If she is doing something, I might not be able to see what she’s really doing. If she’s doing something at my back, I will not really see because something like – I only catch up with her when she’s around me, but if she’s in school, I don’t see what she do over there.

24    It may be observed that the Tribunal’s question, “[s]o you considered her to be your girlfriend but you had no idea whether she had other relationships…[?]” appears to have missed the very point Mr Larney had earlier sought to make about the different usage of that term in Australia and Ghana.

25    Mr Larney was then asked when he had started an “intimate relationship” with Ms Mensah. His immediate response was, “[t]here was nothing like intimate”. To that the Tribunal responded:

You have the children, so … must have an int – or did you have an intimate relationship?

26    The answers Mr Larney then gave were given clearly on the premise that “intimate” meant intercourse, and what he was being asked about when he had begun having sex with Ms Mensah. Notwithstanding, the Tribunal continued to refer to an “intimate relationship” (transcript p 8 line 8), interchangeably either as a euphemism or by way of misunderstanding his account.

27    Mr Larney stated with respect to his having been “intimate” with Ms Mensah and her becoming pregnant:

Well, when I started my job over there, I meet her when I start working at that company, so around 2009 we started like seeing each other, and we did do something and she told me she was pregnant, and I was like the-- are you really sure the baby’s for me, and those kind of stuff. So we spoke to my father about it, and he said the woman who is pregnant, know the man she is pregnant, so you can’t deny whether it to you or not, you need to take it.

Asked what it was that made him think it wasn’t his child, Mr Larney answered:

Because we didn’t have like … intimate for long time, and it just came in, and I was like is – are you really sure it is me?

28    Mr Larney gave evidence that neither he nor Ms Mensah had wanted to get married. They were both too young. He was then asked about his relationship with Ms Mensah after the birth of his son. He answered:

We were not having anything like joint things or anything like that, but, when she got the child, I do – I was doing my responsibility as a man, I buy the child clothes and everything that I need to buy, I do provide, but she was living with her parents and she was not living with me.

29    The Tribunal then explored with Mr Larney whether his parents or Ms Mensah’s parents had put pressure on them to marry. The relevant passages are as follows:

MKR:    Well, you had a sexual relationship that result in you having a child, so what did you parents think? Did your parents put any pressure on you to have a different type of relationship … –

SL:    No, no, because she’s not ready – she was not ready to do that. She thought like getting into me will be like some kind of commitment, and she was not ready to do that. She always told me if she have a child, she’s not ready to like – so I was in shock when I heard that she was married, because that’s what she had been telling me, there’s no way she’s gonna commit to another man.

MKR:    And as I said before, it’s difficult to accept that she was willing to commit to having children and raising the children, because she was raising the children up until a couple of years ago, but she wasn’t willing to commit to having a relationship … –

SL:    That’s the thing – that’s a thing, the culture difference, because living here, for someone to leave children to your parents is even hard over here, that the culture difference over here, because there is … for that thing to happen. But here, it’s really hard for someone to do that, for her to leave the children for your parents to take care of your children, it’s not common over here for that thing to happen. But Africa, it’s common, especially when they are married and they are living with another man, there’s no way that man will love to like take care of your children because he would say no, they are not my children. But here – ever since I came here I’ve seen a lot of stuff about people do that thing here, but there it doesn’t work like that.

MKR:    What about her parents? Did her parents put any pressure on her to marry, or they didn’t mind?

SL:    No, they were more – they were like – they don’t want to like forcing [her] to do something that she doesn’t want to do. Yeah.

MKR:    So they didn’t mind her having children out of wedlock?

SL:    No, no, no. Because one – what I saw was … sister, this happened, the same thing. I’ve known her … sister for some time, and I think she have four kids and like I think it’s something that it is in the family, I can’t really tells, but there is something like just in the family, they don’t - I don’t know how they …, but, yeah.

30    Mr Larney explained that after he had travelled to Australia, he had kept in touch with Ms Mensah because he wanted to know how his son was doing. He had not sent money to her directly and he had sent money to his parents.

31    He was then asked about the circumstances regarding the birth of his second son. Mr Larney explained that he had returned to Ghana on 8 November 2012 because he was not been happy with his then job. He had stayed in Ghana only about six weeks before returning to Australia:

…So when I went, she was happy to like see me and those kind of stuff, so we just catch up and we … something. So, after I came in, my parents – my father rang me and said [Ms Mensah], she is – [Ms Mensah] is saying she is pregnant for you again. I said how can that happen? I just came there like December and I left there …, she is having another baby for me? And I was like is he really mine? But my father always advise me that a woman who is carrying a baby know the man that is having the baby with, so, they did call me. Me, myself, I’ve not really seen our son, because I’ve not been home, but they did call me, they told me…, and they told me I’ve been doing everything that I’m to do, because she’s saying that it’s my child, so I’ve been doing everything that I’m to do to –

32    Mr Larney said that he had not made any plans to see Ms Mensah before he had returned to Ghana and “it had happened” (I infer meaning they had had sex) when she had visited him so he could see his son. The following exchange then took place:

MKR:    No, but when you travelled to Ghana, so you’re are only there for about six weeks or so, before you travelled did you make arrangements to say that you’re going to meet, that you’re going to spend time with each other?

SL:    No, no, no, no.

MKR:    Did you just show up… –

SL:    No I just show – no, I didn’t show up at all but she came to my house when she heard I was coming. Yeah, I didn’t go to her.

MKR:    And in that time –

SL:    And that time too, because my son was with her, I wanted to see them. And that’s when it happened.

33    The questions that immediately followed were premised on Mr Larney having thereby acknowledged he had had a committed intimate relationship with Ms Mensah:

MKR:    Well, it’s hard to accept for me that there was nothing between you, that you were just boyfriend and girlfriend, as you suggest, with no commitment when you did have –

SL:    There was nothing like –

MKR:    – obviously, an intimate relationship.

SL:    There was nothing like commitment –

MKR:    … when you obviously had an intimate relationship in 2009, pretty much as soon as you met, continued that it relationship I think until you left…, continued some form of contact while you’re in Australia, and as soon as you go back for a fairly brief period of time, six weeks or so, have another relationship and have another child. You have two children over three years, over a period of three years and you tell me there’s actually nothing between you and this person?

…

Well, I want you to explain what kind of relationship you think you had, given that you had two children with…

SL:    There was nothing like…

…Like catch up, catch up, and have fun, those kind of – yeah. There was nothing like we were committed to each other or –

MKR:    We’re just having children, there is no commitment whatsoever?

SL:    Yeah, something like that. Yeah, we did have – yeah we did have – did something and the children came. I was not planned, she was not planned, I don’t know her motive behind that, but I was not planned, she was not planned, the children came in.

34    Mr Larney was then asked about the conversation that his former employer had with the Department after Mr Larney had arrived in Australia. Mr Larney said what his employer had said was a result of miscommunication. His employer knew he was not happy with his job. It had been his employer who had raised the subject of bringing Ms Mensah over to Australia to be with him:

… he always call like my missus, my missus coming over here Sam, do you want to meet her? And one day he did ask me do you have someone in Ghana before you come out? I said no, I was having like a girlfriend which – we have like a boy… with her, and he go is there any way that we can bring her over to you? And I said we are not really married, and how are you gonna bring them over? And he said no, no, Australia, everyone is our missus, … you are with a person, you are like some sort of missus, they use that term for everyone. So I think it’s just a matter of – like it’s a language barrier or some kind of misunderstanding that they got me into.

35    Mr Larney did not dispute that in response to that conversation he had telephoned Ms Mensah to see if she would be interested in coming to Australia. She had not been.

36    Mr Larney denied that his employer had later terminated him because he thought Mr Larney hadn’t the skills to do the job. His employer had wanted him to stay and when he had decided to leave it had soured his former employer’s attitude to him.

37    Mr Larney said that he had no work when he had returned to Australia after his short visit to Ghana. Because of his financial situation he had not returned to Ghana in October 2013 for the birth of his second son. He acknowledged that his failure to do so had changed Ms Mensah’s attitude to him:

Yeah, she was upset with me that I couldn’t come, and that’s where the misunderstanding came in and she was like she’s not a wood, she have feeling, and if I’m not gonna be there she’s gonna go for another man, and those kind of things, and that’s where – yeah.

38    He rejected the suggestion put to him by the Tribunal that that indicated Ms Mensah had been committed to him until that time:

Because she has already told me that she doesn’t want to have, like, committed relationship, so I didn’t really think a lot of this, because there’s no way she can come here to be with me anyway, so, it didn’t really bother me much because I was living my life here and she was there.

39    Mr Larney said since the birth of his second son he had had no communication with Ms Mensah. She had since married. She also had placed their two children into his parents’ care. He told the Tribunal that he believed she would have done so because it was common for men in Ghana not to accept parental responsibility for another man’s children. He said he hoped to be able at some later time to bring his children to Australia to live with him.

40    Mr Larney told the Tribunal (and the fact is not in dispute) that he had told his sponsor Ms Parker (who I infer he met around the time his second son was born) everything he had told the Tribunal about those circumstances.

The Tribunal’s decision

41    On 3 November 2017, the Tribunal affirmed the Delegate’s decision not to grant Mr Larney a Partner visa on the basis that he had given or caused to be given information in his application which was false and misleading in a material particular.

42    The Tribunal set out its reasoning as follows:

Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

9    The applicant provided to the Tribunal a copy of the primary decision, which contains the following information.

10    When making the application, the applicant stated that he was never previously married or in a de facto relationship. However, the applicant referred to having two children, born in May 2010 and October 2013 respectively. In response to the delegate’s letter, the applicant stated that he did not provide false or misleading information by failing to disclose a previous relationship because he had never been in a spousal or de facto relationship with the mother of the children. The applicant stated that he had never lived with the mother of the children, who is married and lives with her husband. The applicant noted that the children live with his mother (their paternal grandmother).

11    The primary decision record also indicates that the applicant arrived in Australia in November 2012 holding a Temporary Work (Skilled) Subclass 457 visa. Following the applicant’s arrival in Australia, his employer advised the Department that the applicant informed the employer of his personal circumstances that he had not declared to the employer previously. It was stated that the applicant had a wife and a two year old child in Ghana. The applicant’s employment was terminated in December 2012 as he did not meet the professional standards and the applicant departed Australia in December 2012. The applicant returned to Australia in February 2013 on the Subclass 457 visa which was cancelled on 8 May 2015 as the applicant ceased employment with the sponsor.

12    In his written statement to the Department, the applicant stated that he had never been married and although he has two children with the same woman, they had never married. The applicant stated that he told his employer he was not married to the mother of his child and he offered to marry her but she declined. The applicant notes that the employer then informed the Department that he had a partner and child in Ghana but the mother of the child was not ready to marry him. The applicant claims that the second child was conceived when he returned to Ghana in December. The mother of the children is now married and does not want the children to be involved in the relationship, so the children are being cared for by the applicant’s mother.

13    The Tribunal has considered whether the applicant provided false or misleading information either in his present Partner visa application or in his previously held Temporary Work visa which the applicant held in the 12 months before the present application was made. It is not in dispute that the applicant has two children born in 2010 and 2013 to the same mother. The applicant claims they were never legally married and that the mother of his children is now in another marriage, but that does not imply there was no spouse-like or de facto relationship between them previously. The applicant also provided to the Tribunal declarations from the children’s mother, maternal grandmother and his father, stating that they were never married, either legally or customarily, but were living ‘in concubinage’. As noted above, the Tribunal is prepared to accept that the parties never formally married but that does not preclude the existence of a de facto relationship as defined in the Migration legislation. Neither does the fact that the parties may not have lived together. Cohabitation alone does not define the relationship.

14    The applicant provided, through his migration agent, a written submission to the Tribunal on 2 November 2017. In this submission the applicant repeats the information he previously submitted to the Department. Essentially, the applicant claims that he had brief contact with the mother of his children but there was never a spouse or de facto relationship between them.

15    In oral evidence the applicant said that he met Ms Mensah at a club and they used to talk to each other when they were both in town. He said they saw each other once a month or so but not more frequently and they also had telephone contact. The applicant said he was not committed to the relationship and he did not know whether she had any other relationships. The applicant said when he got a job in Australia, he asked Ms Mensah whether she wanted to come to Australia but she did not want to come with him and leave her parents. He said he did not want to have a relationship with someone who was not willing to travel.

16    The applicant told the Tribunal they met in 2009 and started an intimate relationship in early 2010. When the Tribunal pointed out that their child was born in May 2010, the applicant said that the intimate relationship started some time in 2009. The applicant said that when he learned that she was pregnant, they did not talk about the child’s future. He agreed that he would provide financial support to the children but neither wanted to commit to a relationship. The applicant said that when the first child was born, he provided financial support for the child but the child was living with the mother and her parents. The applicant said the relationship was that of boyfriend and girlfriend.

17    The applicant said he was not happy with his job in Australia and he travelled to Ghana in late 2012. He met with Ms Mensah and was in Ghana for less than two months when Ms Mensah told him she was pregnant again.

18    The Tribunal finds the applicant’s claims unpersuasive. The Tribunal does not accept the applicant’s suggestion that he only had very little contact with the mother of the children, given that such contact resulted in two successful pregnancies. Notably, in his written submission to the Tribunal dated 20 October 2017 the applicant stated that he and Ms Mensah had only two sexual encounters which resulted in the birth of the first child and that that [sic] the two sexual encounters did not last for more than three weeks while in oral evidence the applicant suggested they did have an intimate relationship for a number of months, from 2009. The Tribunal has formed the view that the applicant may not have been truthful in his evidence and that he had deliberately misrepresented the nature of the relationship, and minimized the level of contact with Ms Mensah, to assist with the visa application.

19    The Tribunal also does not accept the applicant’s evidence that Ms Mensah agreed to have two children out of wedlock, and raise the children on her own, with all the responsibilities that entails, rather than ‘commit’ to the relationship with the applicant. The applicant could not provide a meaningful explanation to the Tribunal as to why Ms Mensah would refuse to commit to a relationship with him, other than to state that she did not wish to and she did not want to travel overseas. The Tribunal finds these explanations unpersuasive and the Tribunal does not accept that the couple would not have had a meaningful conversation about their relationship at least once they knew they would have a common child.

20    The Tribunal also considers significant the applicant’s oral evidence that before he came to Australia, the applicant asked Ms Mensah if she was willing to travel to Australia with him. The applicant’s written claims suggest that there was nothing between them but a couple of sexual encounters over a three week period. However, the applicant’s suggestion that Ms Mensah should live with him in Australia suggests a much more serious and committed relationship than what the applicant tries to portray in his submissions.

21    The Tribunal also places weight on the fact that according to the notes on the Department’s file, the applicant told his previous employer that he had a ‘wife and child’ in Ghana. In his oral evidence to the Tribunal the applicant stated that he did not refer to having a ‘wife’ in Ghana. He said his employer saw that he was upset and wanted to keep him in the job, so the employer suggested he should bring the child and his ‘girlfriend’ to Australia. Whoever initiated that conversation, the fact that plans were made to bring Ms Mensah to Australia supports he Tribunal’s view that the parties did have a relationship and a commitment to it, and a desire to live together as partners. The fact that the applicant did mention that relationship to his employer and that there was a conversation about bringing Ms Mensah to Australia to be with the applicant indicates that his relationship with the mother of his children was far stronger than what he now suggests.

22    The applicant told the Tribunal that when the second child was born, Ms Mensah wanted him present for the birth of the child but he could not go because he had no money and Ms Mensah told him she did not want to deal with him and she would go to another relationship. That also suggests that Ms Mensah did have some level of commitment to the relationship and was expecting the applicant to be part of that relationship and it was not until their ‘argument’ at the time the second child was born that her views about the relationship changed and she expressed willingness to end this relationship and commence other relationships. It was also at that time that she gave up the custody of the children to the applicant’s parents. Similarly, the applicant told the Tribunal that when he met his current partner, he told her that he had a ‘girlfriend’ but because of a misunderstanding relating to the second child, they are no longer together. Again, that suggests to the Tribunal that until the birth of the second child at least, the couple had a committed relationship.

23    The Tribunal considers it significant that the couple had two children together within three years, which is not an insignificant period. The Tribunal rejects the applicant’s written evidence that the two children were born as a result of casual encounters over a couple of weeks. The applicant’s oral evidence contradicts that. The birth of the two children over three years implies, in the Tribunal’s view, a considerable degree of commitment rather than a quick interaction resulting in the birth of a child.

24    The representative submits that the couple were in their 20’s and they were young and immature. The Tribunal does not consider that the couple in their 20’s were incapable of appreciating their actions. The representative submits that they did not plan to have children and once Ms Mensah realised she was pregnant, it was too risky to abort. The Tribunal is mindful that there are ways of preventing pregnancy and in the present case she had two children, which would suggest more than a single unplanned encounter resulting in the unwanted birth of the child. The representative submits that it was merely a sexual relationship but not a committed relationship but for the reasons stated above, the Tribunal does not accept that evidence.

25    The Tribunal accepts that the parties never lived together, however absence of cohabitation is not conclusive. Having regard to all the circumstances, the Tribunal has formed the view that the applicant did have a de facto relationship with Ms Mensah before the relationship broke down around the time the second child was born. The Tribunal acknowledges the applicant’s evidence that he has been providing financial support to Ms Mensah after the birth of the child and continued to do so when his parents started to care for the children. The relationship was known to others, at least to immediate family and the applicant said that the parties’ parents became involved. The presence of two children, and the invitation for Ms Mensah to travel to Australia, suggests mutual commitment and an intention to live together. While the Tribunal accepts that such a relationship no longer exists, and may have ceased to exist by the time the applicant made the application for the Partner visa, the Tribunal is of the view that the applicant and the mother of his children had a de facto relationship in the past.

26     The applicant failed to mention that relationship in his application for the Subclass 457 visa and in his present application for the Partner visa. By failing to mention the relationship with the mother of his children, the Tribunal finds that the applicant gave information that was false or misleading. The information was relevant, for the purpose of the Partner visa application, to assessing the nature of the applicant’s relationship with the sponsor. The Tribunal finds that the information was false or misleading in a material particular. The Tribunal acknowledges the applicant’s claim that there was no purpose in withholding that information as it was not adverse to him. However, it is not necessary for the Tribunal to determine that the provision of information could have affected the outcome of the visa application merely that it was relevant to a criterion.

27    The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister or the delegate, information that was false or misleading in a material particular in relation to the present application for the visa. The Tribunal finds that the applicant does not meet PIC 4020(1).

The FCCA proceedings

43    Mr Larney sought judicial review of the Tribunal’s decision to affirm the decision of the Delegate in the FCCA.

44    In those proceedings, Mr Larney advanced three grounds for review as set out in his further amended application, but ultimately his counsel abandoned the first of those grounds. The two remaining grounds are referred to by the primary judge in the passages of his Honour’s reasons for decision set out below. In these proceedings, the further amended application filed before the primary judge was not reproduced in the appeal book, but is annexed to an affidavit of Arran Niall Gerrard. The amended grounds were:

2.    The decision of the Second Respondent is infected with legal error, being a jurisdictional error, because the decision maker has failed to ask itself the correct questions when considering whether the applicant was in fact in any previous de facto relationship and thereby misconstrued and misapplied Public Interest Criterion 4020.

Particulars

(a)    The term “previous relationship” in the visa application form [CB41] must be construed narrowly because any broad construction would not make practical sense;

(b)    The term “de facto relationship” is defined in section 5CB(2) [of] the Migration Act [CB233];

(c)    There is no evidence in the decision record that the decision maker considered each of the elements of the definition of “de facto relationship”.

(d)    In the circumstances, it was not open to the Second Respondent to find that the applicant did not satisfy the Public Interest Criterion 4020.

3.    The decision is legally unreasonable because there is no logical or rational basis for finding that the Applicant was in a de facto relationship, and the Second Respondent otherwise failed to afford the applicant procedural fairness in making its decision;

Particulars

(a)    Any conclusion that the applicant was in a de facto relationship is not supported by the evidence;

(b)    The decision maker fails to identify any evidence which might explain why the applicant might wish to provide false or misleading information.

(c)    The conclusion that the Applicant must have been in a de facto relationship is based on assumptions and not on probative evidence.

(d)    In the circumstances, there was no basis to find that the applicant provided “false or misleading information” for the purposes of Public Interest Criterion 4020.

45    The primary judge dismissed Mr Larney’s application on 1 August 2018. His Honour’s consideration of the grounds was as follows:

Ground 2

16.    In relation to ground 2, Mr Liu sought to place weight on the reference to de facto relationship and the statutory provisions that have particular work to do when the Tribunal, under the statutory provisions, is determining whether or not someone is the spouse of another person or is the de facto partner of another person. Mr Liu contended that the statutory provisions of s 5CB of the Act and the relevant regulation had to be applied by the Tribunal in the circumstances of the present case to determine whether or not the information given by the applicant was false or misleading.

17.     I reject that submission. The statutory provisions in relation to s 5CB of the Act in respect of the definition of de facto relationship are not given work to do in determining whether or not something is false or misleading within Public Interest Criterion 4020. I reject the submission that the regulation referable to de facto relationship pursuant to s 5CB of the Act had work to do.

18.     Mr Liu skilfully endeavoured to submit that because the Tribunal had referred to the statutory provisions under cover of the procedural fairness letter, that the Tribunal was required to determine the matter in accordance with an application of the statutory provisions. I reject that submission. The Tribunal was not embarked on the exercise of determining whether or not, under the statutory regime, someone was a spouse or de facto partner. Rather, the Tribunal was embarked on an exercise, correctly identified by it, as to whether or not the applicant had given a bogus document or information that was false and misleading in a material particular.

19.     Mr Liu also skilfully submitted that the Tribunal itself had referred to cohabitation alone, not defining the relationship, and submitted that this was a reference back to the statutory provisions and that accordingly the Tribunal’s reasoning should be understood as endeavouring to apply the statutory provisions and that the Tribunal had failed to consider each of the statutory criteria. Mr Liu, in that regard, referred in particular to paragraph 25, and referred to some of the other factors that would have been required if the statutory provisions had work to do in determining whether the applicant had given, or caused to be given, a bogus document or information that is false or misleading in a material particular.

20.     For the reasons the Court has already given, the underlying assumption in Mr Liu’s argument is not correct. The applicant was clearly on notice of the nature of the issue as a result of the adverse finding by the delegate and the transcript that has been tendered into evidence makes clear that the applicant was alive to the nature of the issue as to whether he had given a bogus document that was false and misleading in a material particular.

21.     Mr Liu sought to make use of the reference to the de facto partner in the course of the transcript to further the argument that the Tribunal was applying the statutory criteria. I do not accept that submission. The Tribunal has correctly determined the question of fact as to whether or not the applicant had given false or misleading documents or information.

22.     On a fair reading of the Tribunal’s reasons as a whole, and in particular taking into account the reference to Trivedi, paragraph 8 and the reasoning in paragraph 18 of the Tribunal’s reasons, the finding in paragraph 26 and 27 reflects a finding taking into account an element of deception. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

23.     In relation to ground 3, Mr Liu again skilfully submitted that the decision of the Tribunal was legally unreasonable both in process and in outcome. The process argument advanced by Mr Liu focused upon the change of the law in relation to whether or not cohabitation was required in order to be in a de facto relationship.

24.     The substance of this argument depends on the proposition that the Tribunal was required to apply the statutory provisions in determining whether or not the information was false or misleading. For the reasons the Court has already given, that assumption is flawed. Accordingly, there is no illogicality or unreasonableness as contended by Mr Liu in that regard by reference to the issue of cohabitation and the changes in the law concerning the statutory provision.

25.     Mr Liu contended that it was legally unreasonable in circumstances where the Tribunal had referred to the statutory provisions in the procedural fairness letter, as well as the references referred to above within the Tribunal’s reasons and in the transcript in the use of the term “de facto partner” and that, accordingly, the adverse finding that the applicant did not comply with the Public Interest Criterion 4020 was legally unreasonable.

26.     For the reasons already given, the underlying assumption in relation to the application of the statutory provisions in determining whether the information in the document are false or misleading are flawed. Further, this is a case where the Tribunal gave logical and rational reasons in support of the adverse credibility findings and in a finding that the applicant had in fact given false or misleading information contrary to the Public Interest Criterion 4020.

27.     The finding that the applicant had deliberately misrepresented the nature of the relationship, together with the reference to Trivedi, means that the Tribunal’s reasons cannot be said to be legally unreasonable either by reference to outcome or by reference to process.

28.     Mr Liu sought to place weight upon the nature and scope of the legislation in relation to assessing the legal unreasonableness. The purpose of the provision in Public Interest Criterion 4020 is to ensure that truthful and honest answers are given to the forms in the application. The adverse finding was clearly open to the Tribunal in the circumstances of the present case that the applicant had given an answer that was false or misleading in a material particular. No jurisdictional error as alleged in ground 3 is made out.

46    The primary judge found that no jurisdictional error was made out and dismissed the application.

The appeal

Grounds of appeal

47    Mr Larney appeals from the primary judge’s decision to this Court. His amended grounds of appeal filed on 24 January 2019 were as follows:

1.    The primary judge erred by not finding that the Second Respondent (Tribunal) made a jurisdictional error in that it misconstrued and misapplied Public Interest Criterion 4020 (PIC 4020) in Schedule 4 of the Migration Regulations 1994 (Cth) (Regulations) where it found that the appellant provided false or misleading information about whether he was in a previous “de facto relationship”. The primary judge ought to have found that the Tribunal misapplied both PIC 4020 and the definition of “de facto relationship” in s 5CB of the Migration Act 1959 [sic] (Cth) (Act), and that the statutory definition of de facto relationship was relevant to the Tribunal’s determination of whether the appellant satisfied PIC 4020, in circumstances where:

a.    The Tribunal found that the appellant failed to satisfy PIC 4020 because he provided false or misleading information by not disclosing “the existence of a [previous] de facto relationship as defined in the Migration legislation”: [13].

b.    In finding that the appellant was in a previous “de facto relationship as defined in the Migration legislation”, the Tribunal referred to certain criteria in the Act and the Regulations but failed to consider all relevant matters required by the Act and Regulations to support a finding of the existence of a previous de facto relationship: [25].

c.     At the time the appellant provided the relevant information in his visa application form, it was not open to find that he was in a previous de facto relationship.

2.    The primary judge erred by not finding that the Tribunal’s decision was legally unreasonable or affected by illogicality and irrationality, or otherwise exposed an underlying jurisdictional error. The primary judge ought to have found that the Tribunal made a jurisdictional error where it found that the appellant provided information that was “false or misleading in a material particular” and thereby did not satisfy PIC 4020, in circumstances where:

a.    The context, scope, purpose and objects of PIC 4020 confirm that it aims to deter the provision of false or misleading information that is purposely untrue and involving an element of fraud or deception.

b.    It was not open to the Tribunal to find that the appellant provided false or misleading information, as in purposely untrue and containing an element of fraud or deception, at the time it was given.

3.    The primary judge erred by not finding that the Tribunal denied the appellant procedural fairness where it found that he failed to disclose a previous “de facto relationship as defined in the Migration legislation” and therefore did not satisfy PIC 4020. The primary judge ought to have found that the Tribunal denied the appellant procedural fairness, in circumstances where:

a.    A delegate of the Minister invited the appellant by letter dated 8 September 2016 to comment on whether he had been in a “de facto or spousal relationship previously”: CB 219.

b.    The delegate annexed to the 8 September 2016 letter, amongst other things, extracts of s 5CB of the Act, reg 1.09A of the Regulations, and PIC 4020, which indicated that the statutory definition of “de facto relationship” was relevant to determining whether the applicant satisfied PIC 4020.

c.    The Tribunal during its hearing explored with the appellant his evidence of any previous de facto relationship by reference to the criteria in the Act and the Regulations.

d.    The Tribunal’s reasons referred to the definition of “de facto relationship as defined in the Migration legislation”: [13].

48    However, when this review came before the Court for hearing on 26 February 2019 Mr Liu, appearing for Mr Larney, sought leave to amend Mr Larney’s notice of appeal (while retaining his existing grounds in the alternative) by adding a further ground so as to allege that the primary judge had erred in not holding that the Tribunal had erred in law by asking itself to the wrong question and disposing of the issues before it on that basis. Mr Macliver, appearing for the Minister, did not oppose that application.

49    Accordingly, I gave leave to Mr Liu to file Mr Larney’s proposed further amended grounds of appeal and for submissions to be exchanged in relation to them. I then adjourned the hearing to permit that course to be pursued. Mr Larney filed his proposed further amended grounds of appeal on 11 March 20119.

50    When the adjourned hearing resumed on 16 April 2019 Mr Macliver confirmed that the Minister did not oppose Mr Larney relying on his proposed further amended grounds of appeal as by then had been filed. I granted Mr Larney leave to do so. His grounds, as further amended are as follows:

Further Amended Grounds of appeal

1A.     The primary judge erred by failing to find that the Tribunal fell into jurisdictional error by asking itself a wrong question. The primary judge ought to have found that the Tribunal made a jurisdictional error because:

a.    The Tribunal misidentified the purportedly false or misleading “information” for the purposes of Public Interest Criterion 4020 (PIC 4020). This constituted asking itself a wrong question or identifying a wrong issue.

b.    The Tribunal (at [10]) identified the “information” to be considered under PIC 4020 as “[w]hen making the application, the applicant stated that he was never previously married or in a de facto relationship.” The appellant had not in fact, “when making the application”, stated that he was never previously in a married or de facto relationship. The appellant only answered “No” to the question “Has the applicant been in any previous relationships with persons other than the sponsor?”

c.    The Tribunal accepted that the appellant and the mother of his children were never married but proceeded to determine “the existence of a de facto relationship as defined in the Migration legislation.” In so doing, the Tribunal asked itself a wrong question, which was whether, as a matter of fact, the appellant and the mother of his children were in a de facto relationship, and which the appellant was bound to disclose instead of his answer “No”.

d.    The Tribunal should have asked itself whether the answer “No” on the visa application form constituted false or misleading information.

e.    The Tribunal’s error was material because its assessment of the evidence before it was directed entirely to the question of whether the appellant and the mother of his children were in a de facto relationship and its finding (at [25]) that they “had a de facto relationship in the past” was dispositive to its conclusion (at [26]).

1.     In the alternative to Ground 1A, the primary judge erred by not finding that the Second Respondent (Tribunal) made a jurisdictional error in that it misconstrued and misapplied Public Interest Criterion 4020 (PIC 4020) in Schedule 4 of the Migration Regulations 1994 (Cth) (Regulations) where it found that the appellant provided false or misleading information about whether he was in a previous “de facto relationship”. The primary judge ought to have found that the Tribunal misapplied both PIC 4020 and the definition of “de facto relationship” in s 5CB of the Migration Act 1959 [sic] (Cth) (Act), and that the statutory definition of de facto relationship was relevant to the Tribunal’s determination of whether the appellant satisfied PIC 4020, in circumstances where:

a.    The Tribunal found that the appellant failed to satisfy PIC 4020 because he provided false or misleading information by not disclosing “the existence of a [previous] de facto relationship as defined in the Migration legislation”: [13].

b.    In finding that the appellant was in a previous “de facto relationship as defined in the Migration legislation”, the Tribunal referred to certain criteria in the Act and the Regulations but failed to consider all relevant matters required by the Act and Regulations to support a finding of the existence of a previous de facto relationship: [25].

c.    At the time the appellant provided the relevant information in his visa application form, it was not open to find that he was in a previous de facto relationship.

2.     The primary judge erred by not finding that the Tribunal’s decision was legally unreasonable or affected by illogicality and irrationality, or otherwise exposed an underlying jurisdictional error. The primary judge ought to have found that the Tribunal made a jurisdictional error where it found that the appellant provided information that was “false or misleading in a material particular” and thereby did not satisfy PIC 4020, in circumstances where:

a.    The context, scope, purpose and objects of PIC 4020 confirm that it aims to deter the provision of false or misleading information that is purposely untrue and involving an element of fraud or deception.

b.    It was not open to the Tribunal to find that the appellant provided false or misleading information, as in purposely untrue and containing an element of fraud or deception, at the time it was given.

(Emphasis, interlineation and deleted text omitted.)

The parties’ submissions

51    Mr Liu’s written submissions in support of Ground 1A are as follows:

5.    The “information” given by the appellant which triggered the PIC 4020 assessment by the delegate initially and then by the Tribunal was his answer “No” to the question on his visa application form: “Has the applicant been in any previous relationships with persons other than the sponsor?” (AB 57) The appellant did not provide any statement in the visa application form that he was not in a previous spousal or de facto relationship.

6.    The Tribunal’s decision at [10] (AB 420) identified the “information” it was assessing as: “[w]hen making the application, the applicant stated that he was never previously married or in a de facto relationship.” Having identified its enquiry in this way, the Tribunal stated at [13] of its reasons that it “has considered whether the applicant provided false or misleading information” on the basis that while it accepted that the appellant was never “formally married” that “does not preclude the existence of a de facto relationship as defined in the Migration legislation.” The Tribunal at [14] – [24] then set out and analysed the appellant’s submissions and evidence. At [25] the Tribunal concluded that “the applicant did have a de facto relationship with [the mother of his children] before the relationship broke down” and that “the Tribunal is of the view that the applicant and the mother of his children had a de facto relationship in the past.” On that basis, the Tribunal at [26] found that the “applicant failed to mention that relationship” and that by such a failure “the applicant gave information that was false or misleading” and, therefore, did not satisfy PIC 4020 (AB 423 [26], [27]).

7.    By misidentifying the nature of its enquiry in this way, the Tribunal asked itself a wrong question.

8.    In Craig v South Australia (1995) 184 CLR 163 at 179, the High Court said that an administrative tribunal:

…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

9.     In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, McHugh, Gummow and Hayne JJ said:

“Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (Citations omitted.)

10.    In the present case, the Tribunal has asked itself a wrong question by misidentifying the “information” subject to its assessment against PIC 4020. At no point in its decision does it identify the appellant’s answer of “No” on his visa application form as the relevant information said to be false or misleading. Instead, it identified (at [10]) the relevant information as a statement “that [the appellant] was never previously married or in a de facto relationship.” This follows a similar framing in the ‘natural justice letter’ sent by the delegate which suggested that the appellant may not satisfy PIC 4020 because the delegate considered that the appellant provided information “to the department with the intention of satisfying the delegate that you have never been in a de facto or spousal relationship previously” (AB 235). In the circumstances, the Tribunal (and the delegate) have asked a wrong question which failed to identify the actual answer given on the visa application form (i.e. “No”).

11.    The Tribunal’s assessment of the submissions and evidence before it proceeded on this incorrect footing. This is particularly evident in its reference to “de facto relationship as defined in the Migration legislation” (AB 421 [13]) and its assessment of the evidence to determine matters such as the existence of “financial support”, whether “the relationship was known to others”, and the existence of a “mutual commitment and an intention to live together” (AB 423 [25]). Those are all factors relevant to an assessment under s 5CB of the Migration Act 1958 (Cth). The assessment of those factors reflects the Tribunal’s erroneous understanding of its task of determining whether the appellant was previously in a “de facto relationship as defined in the Migration legislation”.

12.    The primary judge held (at AB 456 [18]) that “[t]he Tribunal was not embarked on the exercise of determining whether or not, under the statutory regime, someone was a spouse or de facto partner. Rather, the Tribunal was embarked on an exercise, correctly identified by it, as to whether or not the applicant had given a bogus document or information that was false or misleading in a material particular.” In holding that the Tribunal had “correctly identified” the “exercise” before it, the primary judge erred. His Honour ought to have found that the Tribunal’s reference to “de facto relationship as defined in the Migration legislation” combined with its assessment of the evidence and submissions on that basis meant that it asked itself a wrong question and failed to carry out its review.

13.    The appellant raised this error in its earlier written submission on the appeal at [24], saying that “[i]f the primary judge was correct that the statutory provisions had no work to do in the context of PIC 4020, then the Tribunal’s decision was affected by jurisdictional error in any event because of the primacy and express consideration it gave to the statutory provision relating to the definition of ‘de facto partner’.”

    14.    For these reasons, the Tribunal’s decision should be quashed.

Materiality

15.    The Tribunal’s error in asking itself a wrong question was material to its decision. Recent decisions of the High Court and Full Court of the Federal Court emphasise the need to establish not only an error but an error that is material and, therefore, one that vitiates jurisdiction: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [31]; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42]. In SZMTA at [45], a majority of the High Court stated that “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision.”

16.    In the present case, had the Tribunal correctly identified (at [10]) exactly what was stated by the appellant “[w]hen making the application” (i.e. the answer “No”), and applied itself to that question, it could have reached a different conclusion not based on the premise that the appellant was in a previous “de facto relationship as defined in the Migration legislation”. Instead, the Tribunal’s assessment would likely have turned on different evidence and certainly different criteria without reference to the meaning of “de facto relationship as defined in the Migration legislation”.

52    The Minister’s written submissions in response to that ground are as follows:

5.    The Tribunal was tasked with reviewing the decision of a delegate of the Minister made on 2 November 2016 (“the delegate’s decision”) to refuse the appellant’s application for a Partner (Temporary) (Class UK) Subclass 820 visa (“Partner visa application”).

6.    The delegate’s decision was based upon her conclusion that the appellant had intentionally provided false and misleading information to the Department, in relation to his Partner visa application, and therefore that he did not meet Public Interest Criterion (“PIC”) 4020(1): see the Tribunal’s reasons at AB 299-300. The delegate was also not satisfied that circumstances existed for the waiver requirements in PIC 4020(4), and therefore the appellant did not satisfy the criteria in clause 820.226 of Schedule 2 to the Migration Regulations 1994 (at AB 300).

7.    The false and misleading information to which the delegate referred was the answer “No” to the question in relation to the appellant’s Partner visa application as to whether he had “been in any previous relationships with persons other than the sponsor?”, and information submitted by the appellant’s migration agent in response to the delegate’s letter of 23 June 2016 that the appellant said that he had never been married or been in a de facto relationship, and that he and the mother of his two children had never lived together or got engaged, and it was just a casual relationship: see the Tribunal’s reasons at AB 298-299.

8.    In support of his proposed new ground of appeal the appellant relies upon the statement made by the Tribunal at paragraph 10 of its reasons that “[w]hen making the application, the [appellant] stated that he was never previously married or in a de facto relationship”: see particular b. to Ground 1A and paragraphs 6 and 10 of the appellant’s further submissions. However, the appellant’s reliance upon that statement in support of his contention that the Tribunal asked itself the wrong question is misplaced.

9.    It is to be inferred that by reason of the Tribunal having regard to the delegate’s decision (referred to by the Tribunal as “the primary decision”), the Tribunal was aware that the delegate had written to the appellant because in his Partner visa application he had answered “No” to the question “asking whether he had been in any previous relationships with persons other than the sponsor”, and that the delegate considered that the answer was false or misleading in relation to the appellant’s Partner visa application.

10.    The Tribunal further noted at paragraph 10 of its reasons that the primary decision referred to the appellant stating in response to the delegate’s letter “that he did not provide false or misleading information by failing to disclose a previous relationship because he had never been in a spousal or de facto relationship with the mother of the children.” The reference to “failing to disclose a previous relationship” clearly refers to the answer “No” given by the appellant in his Partner visa application.

11.    Relevantly, at paragraph 13 of its reasons the Tribunal stated that it “has considered whether the [appellant] provided false or misleading information either in his present partner visa application or in his previously held Temporary Work Visa which the [appellant] held in the 12 months before the present application was made”. The reference by the Tribunal to false or misleading information in the appellant’s Partner visa application can only be a reference to the answer “No” given by the appellant in response to the question as to whether he had been in any previous relationships with persons other than the sponsor.

12.    Further, this statement correctly reflects the enquiry required by PIC 4020(1) which specifies that there is no evidence before the Minister that an applicant has given, or caused to be given, information that is false or misleading in a material particular in relation to either the application for the visa or a visa that the applicant held in the period of 12 months before the application was made.

13.    Having regard to all of the evidence and material before it, the Tribunal formed the view that the appellant did have a de facto relationship with Ms Mensah (the mother of his two children) before the relationship broke down around the time the second child was born: see paragraph 25 of the Tribunal’s reasons (AB 442-443). The Tribunal further stated at paragraph 25 that while it accepted that such a relationship no longer existed, and may have ceased to exist by the time the appellant made his Partner visa application, it was of the view that the appellant and the mother of his children had a de facto relationship in the past.

14.    Critically, the Tribunal then goes on to state at paragraph 26 of its reasons that the appellant failed to mention that relationship in his application for the Subclass 457 visa and in his present partner visa application, and that by failing to mention the relationship the Tribunal found that “the [appellant] gave information that was false or misleading”, and that the information “was relevant, for the purpose of the partner visa application”. The Tribunal’s references to the appellant having failed to mention the relationship with the mother of his children in his Partner visa application can only be a reference to the appellant’s answer “No” to the question as to whether he had been in any previous relationships with persons other than the sponsor.

15.    Accordingly, the Tribunal’s conclusion at paragraph 27 of its reasons that there was evidence that the appellant had given, or caused to be given, to the Minister or the delegate, information that was false or misleading in a material particular in relation to the present application for the visa (the Partner visa application) did not involve jurisdictional error by reason of the Tribunal having asked itself a wrong question. Therefore, the primary Judge did not err by failing to find that the Tribunal “asked itself the wrong question and failed to carry out its review”: see paragraph 12 of the appellant’s further submissions.

Even if the Tribunal asked itself a wrong question this did not amount to jurisdictional error

16.    Even if, contrary to the submissions above, the Tribunal did ask itself a wrong question as set out in proposed Ground 1A, in the circumstances here that did not amount to jurisdictional error.

17.    Having regard to all of the facts and circumstances, if the Tribunal did ask itself a wrong question in determining whether or not the appellant had given, or caused to be given, to the Minister or the delegate, information that was false or misleading in a material particular in relation to his Partner visa application, such an error could not have affected the Tribunal’s ultimate conclusion that there was such evidence, and therefore that the appellant did not meet PIC 4020(1): see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] and [84] per McHugh, Gummow and Hayne JJ.

18.    More recently, in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 the High Court held that a breach of an obligation of procedural fairness by the Tribunal only constitute jurisdictional error if the breach was material in the sense of depriving the applicant of the possibility of a successful outcome: per Bell, Gageler and Keane JJ at [2], [3], [38], [44] and [45].

19.    Having regard to the Tribunal’s conclusion that it was of the view that the appellant and the mother of his children had had a de facto relationship in the past (at [25]), any error by the Tribunal in asking the wrong question was not material to its decision. Any such error by the Tribunal was not material to its ultimate decision as asking the wrong question could not “realistically have resulted in a different decision”: SZMTA at [45].

20.    In making his partner visa application, the appellant answered “No” to the question as to whether he had been in any previous relationships with persons other than the sponsor. Even if the Tribunal was in error in not specifically asking whether that answer amounted to the appellant giving, or having caused to be given, information that was false or misleading in a material particular in relation to his Partner visa application, that error was not material to the Tribunal’s decision. Given its conclusion that it was of the view that the appellant had been in a de facto relationship with the mother of his children, the Tribunal could only have answered that question in the affirmative.

21.     Accordingly, even if the Tribunal made an error by asking itself the wrong     question, that error did not amount to jurisdictional error.

(Emphasis omitted.)

Consideration

53    At [4] of its reasons, the Tribunal identified (correctly) that the issue in the review before it was whether Mr Larney met Public Interest Criterion 4020 (PIC 4020) as required for the grant of the visa he had applied for.

54    It is uncontentious that a criterion for the grant of a partner visa, as Mr Larney had applied for, is that PIC 4020 must be satisfied.

55    As is directly relevant, that PIC 4020 as contained in Sch 4 of the Migration Regulations 1994 (Cth) (Regulations) provides:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)     the application for the visa; …

....

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

56    It is common ground in this proceeding that PIC 4020 is not engaged simply because a person has given information which, viewed objectively, is false or misleading; there is binding authority that an element of fraud or deception is necessary before the operation of the clause is attracted: see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169. The Tribunal acknowledged that to be the case at [8] of its reasons.

57    The next step in analysis is to identify what was in issue before the Tribunal as may have been asserted to be a bogus document or information that was false or misleading in a material particular that Mr Larney had given or caused to have been given to the Minister.

58    Notwithstanding undiscriminating references appearing throughout its reasons to both limbs of PIC 4020, I am satisfied (and I do not understand it to be contentious) that there was nothing before the Tribunal capable of satisfying the description of a “bogus document” that Mr Larney could be said to have given or caused to have been given to the Minister.

59    However, as is evident from [27] of its reasons, the Tribunal ultimately concluded that there was evidence that Mr Larney had given, or caused to be given to the Minister, or the delegate, information that was false or misleading in a material particular in relation to his visa application. There is no express statement by the Tribunal that permits the Court to identify that information with precision. It is only by inference that it is possible (perhaps) to discern what the Tribunal identified as being false or misleading information. The chain of inferences I draw are as follows.

60    At [25], the Tribunal made a finding that Mr Larney had had a de facto relationship in the past. It then reasoned at [26] that Mr Larney’s failure “to mention that relationship in his application for the Subclass 457 visa [being the work visa] and in his present application for the Partner visa” justified a conclusion that he had given information which was false and misleading. That was a finding of omission, not commission.

61    The Tribunal made no finding that Mr Larney’s failure to mention that relationship was material to his application for the work visa. However, it concluded that his omission to mention that relationship was relevant, and misleading in a material particular, to his application for his partner visa. That, on its face, appears to be the basis on which the Tribunal reached its ultimate finding at [27].

62    However, neither party seeks to defend or attack the Tribunal’s conclusion on the premise that the literal text of [26] reveals the Tribunal’s true reasoning.

63    The Minister does not advance a submission that Mr Larney was subject to an indeterminate general duty of disclosure which he omitted to fulfil, such that the Tribunal’s decision might be upheld on that basis.

64    Instead Mr Macliver submits the reference to “failing to disclose a previous relationship” clearly refers to the answer “No” that Mr Larney gave in his Partner visa application to the question of whether he had been in any previous relationships with persons other than the sponsor. Mr Macliver submits that can be deduced from the Tribunal’s reasoning at [10].

65    That appears to have been the basis upon which the primary judge proceeded.

66    However, the difficulty with that proposition is that the Tribunal at [10] did not identify that answer as being the information Mr Larney had supplied to the Minister for which there was evidence it was false or misleading in a material particular.

67    Instead, the Tribunal referred to the information Mr Larney had given to the Minister in quite different terms. At [10], the Tribunal commences its discussion as to whether Mr Larney had given or caused to be given to the Minister information that was false or misleading in a material particular by describing the issue before it as follows:

When making the application, the applicant stated that he was never previously married or in a de facto relationship.

68    The words used by the Tribunal as immediately then follow make clear that the Tribunal was referring to its understanding of what had been Mr Larney’s answer to the question Mr Macliver identifies as material. The Tribunal’s later reference to Mr Larney’s explanation, given on his behalf by his migration agent to the letter he later received from the Minister’s delegate makes it clear that that was not what the Tribunal was referring to.

69    While a Tribunal’s reasons are not to be read with an eye keenly attuned to the perception of error (see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280), there is nothing in that paragraph, or elsewhere, to suggest that the Tribunal ever identified Mr Larney’s answer to be the relevant information which might be false or misleading.

70    I am satisfied that I am entitled to infer that the information the Tribunal found to have been false or misleading in a material particular was Mr Larney’s assertion when making his application, that he had never been married previously or in a de facto relationship. That, however, was not an assertion he had made.

71    The Tribunal’s misstatement of the information Mr Larney had given to the Minister then led it to focus not on his actual answer but whether his imputed (but incorrectly described) answer was relevantly false and misleading. In doing so, I am satisfied that the Tribunal fell into legal error by failing to address the question properly before it and instead addressing a different question: whether Mr Larney misled the Minister by stating that he had not previously been in a de facto relationship as defined in the Migration Act 1958 (Cth) (Migration Act) or the Regulations.

72    That that unfortunate elision occurred is evident both from the Tribunal’s reasons and in the manner it undertook its review.

73    Thus at [13] of its reasons the Tribunal observed as follows:

[T]he Tribunal is prepared to accept that the parties never formally married but that does not preclude the existence of a de facto relationship as defined in the Migration legislation. Neither does the fact that the parties may not have lived together. Cohabitation does not define the relationship.

74    That was also the focus of the hearing. As the transcript reveals, the Tribunal’s focus was on whether Mr Larney had been in a de facto relationship. I infer that in the mind of the Tribunal, that was to be determined not by the social mores of Ghana but as such a relationship is defined in the Migration Act and Regulations as it had referred to at [13] of its reasons. Thus, during the hearing, the Tribunal observed as follows:

[Y]ou don’t have to live with someone … under the same roof to be in a de facto relationship. You do need to have a mutual commitment to the relationship, and it seems that at some point there was that commitment.

(p 21)

75    The same reasoning is the focus of the Tribunal’s conclusion at [25] in which, having evaluated the evidence before it, it stated:

While the Tribunal accepts that such a relationship no longer exists, and may have ceased to exist by the time the applicant made the application for the Partner visa, the Tribunal is of the view that the applicant and the mother of his children had a de facto relationship in the past.

76    It was Mr Larney’s failure to mention that relationship which the Tribunal found was misleading at [26]. Even assuming that the Tribunal’s findings at [26] should be understood to have referred not to an omission (for which neither party contends) but as a positive finding of Mr Larney having made an affirmative statement in his application which was false in a material particular. The only possible inference open is that the Tribunal’s ultimate finding was based on it having wrongly understood Mr Larney’s actual statement to have been that he had never previously been married or in a de facto relationship, the falsity of the which was established having regard to how a de facto relationship is “defined in the Migration legislation”.

77    That was a red herring.

78    I am therefore satisfied that the primary judge was correct to have rejected the grounds of review Mr Liu pressed on Mr Larney’s behalf in the court below. Those grounds were premised on the Tribunal having erred in law in its understanding of how the Migration Act defined a de facto relationship, and in its application of that understanding. That, properly understood, was never the dispositive issue before the Tribunal.

79    For the same reason, I am satisfied that Mr Larney does not make out Grounds 1 and 2 of his appeal as is before this Court.

80    However, lest I be mistaken in that regard, I make the following observations.

81    First, assuming that the Tribunal was correct that the issue before it turned on whether Mr Larney had been in a de facto relationship in the past as that term is defined by s 5CB of the Migration Act, I would have concluded that Mr Larney was entitled to succeed in respect of Ground 1(d) of his further amended application.

82    That is for two reasons.

83    First, subclause (5) of PIC 4020 makes clear that subclause (1) applies to information that is given, or caused to be given, to the Minister only if it is “false or misleading at the time it is given” (my emphasis).

84    As noted, there is nothing before me which can be relied upon to identify the precise date when Mr Larney submitted his application. There is, however, a letter dated 3 April 2015 acknowledging his application having been received. I infer his application had been submitted shortly before or on that date.

85    As at the time I infer Mr Larney submitted his application, the law governing the construction to be given to s 5CB of the Migration Act would have been understood both by Mr Larney (had he taken legal advice) and the Minister to have been as stated by Judge Emmett in Minister for Immigration and Border Protection v SZOXP [2014] FCCA 565; 285 FLR 384. Judge Emmett’s reasons were delivered on 26 March 2014. Consistent with the submissions advanced in that proceeding by the Minister, his Honour held that to come within the definition of a de facto relationship within the meaning of the Migration Act, the parties must have lived together at some point of time.

86    The Tribunal explicitly accepted Mr Larney’s evidence that he had never at any time lived together with Ms Mensah (at [25] of its reasons).

87    Thus at the time Mr Larney gave his information to the Minister, objectively it could not have been false or misleading for Mr Larney to have asserted that he had not been in a de facto relationship as that term was then understood for the purposes of the Migration Act.

88    It may be accepted that in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69; 231 FCR 1 (delivered on 11 June 2015), a Full Court of this Court rejected submissions in an appeal pressed on behalf of the Minister, and concluded that the position was not quite so absolute. However, that cannot alter the position as applied at the time Mr Larney provided that information (had he done so) to the Minister.

89    Moreover, nor was a position reached by the Full Court such as would have justified the Tribunal’s conclusions in any event. In its decision, the Full Court set out the terms of s 5CB of the Migration Act. That provision was then, and remains, relevantly as follows:

5CB De facto partner

De facto partners

(1)    For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

(2)    For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

(a)    they have a mutual commitment to a shared life to the exclusion of all others; and

(b)    the relationship between them is genuine and continuing; and

(c)     they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis; and

(d)    they are not related by family (see subsection (4)).

90    The Full Court held that Judge Emmett had erred. There was no basis to find that it is implied in s 5CB(2)(c)(ii) that the persons had previously cohabited. The Full Court declined to read that provision as if that subclause included the words in italics such that it would read:

… they have previously cohabited and do not live separately and apart on a permanent basis.

91    It will be immediately seen that the change effected by the decision of the Full Court, notwithstanding its significance, was quite limited. As construed by the Full Court, s 5CB does not foreclose the possibility that a couple might be in a de facto relationship despite their not having previously lived together, provided they share a mutual intention, in the future, not to live separately and apart on a permanent basis.

92    However, the evidence before the Tribunal was wholly inconsistent with Mr Larney and Ms Mensah ever having formed such a mutual intention.

93    I do not ignore that at [25] of its reasons, the Tribunal observed as follows:

The presence of two children, and the invitation for Ms Mensah to travel to Australia, suggests mutual commitment and an intention to live together.

94    The difficulty with that reasoning is that when Mr Larney did extend an invitation to Ms Mensah to travel to Australia, the unchallenged evidence before the Tribunal is that Ms Mensah had declined. That is as recorded by the Tribunal at [15], and nothing to the contrary is suggested at [20]. There was thus no evidence before the Tribunal of Mr Larney and Ms Mensah ever having had a mutual intention to live together or “not to live separately and apart on a permanent basis”. There is no suggestion that Mr Mensah ever applied to come to Australia to be with Mr Larney. The Tribunal appears to have been aware of that difficulty in [25] by not applying the term “mutual” specifically to their having had an intention of living together.

95    Accordingly, even had the Tribunal been entitled to have regard to the more generous construction of the provisions of s 5CB as later given effect to by the Full Court, Mr Larney and Ms Mensah’s “relationship” objectively was never capable of being comprehended by the term “de facto relationship” as defined in the “Migration legislation”. It therefore could not have been false or misleading on Mr Larney’s part to have disowned his having had such a relationship.

96    Having made those contingent observations, I return to the remaining ground pressed by Mr Liu on Mr Larney’s behalf.

97    I am satisfied, for the reasons I have referred to above, that Ground 1A must succeed. I am satisfied that the Tribunal asked itself a wrong question by focussing not on whether the information Mr Larney had provided by answering the question asked of him in the application form “No” was false or misleading in a material circumstance, but on the quite different questions that arose from the Tribunal’s misunderstanding of the information he had provided as set out in [10] of its reasons.

98    I am satisfied that the primary judge ought to have found that the Tribunal made a jurisdictional error. For the reasons I have set out above, I accept the following propositions as advanced in those grounds:

b.    The Tribunal (at [10]) identified the “information” to be considered under PIC 4020 as “[w]hen making the application, the applicant stated that he was never previously married or in a de facto relationship.” The appellant had not in fact, “when making the application”, stated that he was never previously in a married or de facto relationship. The appellant only answered “No” to the question “Has the applicant been in any previous relationships with persons other than the sponsor?”

…

d.    The Tribunal should have asked itself whether the answer “No” on the visa application form constituted false or misleading information.

e.    The Tribunal’s error was material because its assessment of the evidence before it was directed entirely to the question of whether the appellant and the mother of his children were in a de facto relationship and its finding (at [25]) that they “had a de facto relationship in the past” was dispositive to its conclusion (at [26]).

99    By reason of those errors, the Tribunal failed to undertake the statutory task required of it by law. Subject to a possible question of materiality, I am satisfied that by asking itself the wrong question, the Tribunal fell into jurisdictional error. It is an error of a kind that falls squarely within the language of the High Court in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179, where Brennan, Deane, Toohey, Gaudron and McHugh JJ held as follows:

If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

100    I refer only to a possible question of materiality because the Court is not persuaded that where a Tribunal has so fundamentally misconceived the facts and its legal duty as occurred in this instance that any issue of materiality arises. The Court has considerable doubts that such a conclusion is compelled by the reasoning of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252.

101    That question is unnecessary to decide. In the event the Court is unpersuaded by the submissions advanced by Mr Macliver that the findings made by the Tribunal necessarily would preclude any outcome different to that which prevailed, there would be no utility in remitting the matter.

102    Had the Tribunal focussed on the question lawfully before it, the Tribunal would have had to evaluate whether there was evidence that in answering “No” to the question of whether Mr Larney had been in any previous relationships with persons other than the sponsor, he had given to the Minister information which was false or misleading in a material particular.

103    I note that the Court was advised from the bar table that had Mr Larney answered “Yes”, the electronic form would have provided a drop down menu asking him to identify whether his previous relationship(s) had been a marriage or a de facto relationship. I was not advised if there would have been any capacity to specify a type of relationship other than married or de facto if Mr Larney had answered “Yes”. However, all of that is beside the point. Mr Larney did not answer “Yes” so as to discover such options as might have existed.

104    Mr Larney had had to self-evaluate whether or not his “relationship” with Ms Mensah was such as to require him to answer “Yes” or “No” to the question that had been asked of him. That there was an element of self-evaluation involved does not necessarily preclude a conclusion that he provided false and misleading information by the response he gave to the question asked. But for a tribunal to reach such a conclusion as relevant to PIC 4020 would require the decision maker to give careful attention to two things: first, the context in which the question was asked, and, having regard to that context, what was meant by the term “relationship” to which the question to was directed; and second, whether the facts of Mr Larney’s association with Ms Mensah was relevantly such a “relationship”.

105    The decision maker would then be required to consider, assuming Mr Larney’s answer to that question was objectively false or misleading, whether any element of fraud or deception had been involved in his giving the answer he did.

106    A decision maker charged with deciding the latter could not ignore how Mr Larney and Ms Mensah may subjectively have conceived the significance of their association having regard to social norms applying in Ghana.

107    In that regard, while no ground of appeal was directed to the issue, the Court has earlier drawn attention (at [20]-[39]) to passages in the transcript which suggest that, when conducting the review which is the subject of these proceedings, the Tribunal entirely missed the import of that aspect of Mr Larney’s evidence.

108    Those questions, and the considerations relevant to them, were not those addressed by the Tribunal. For that reason, I am satisfied that the Minister’s contention that the error found by the Court to have infected its decision was immaterial to the outcome cannot be accepted.

109    I would allow Mr Larney’s application as advanced in Ground 1A of his further amended application.

110    Consequentially the decision of the Federal Circuit Court dismissing Mr Larney’s application in the court below must be set aside.

111    I order a writ of certiorari issue quashing the decision of the Tribunal and a writ of mandamus issue requiring the Tribunal, differently constituted, to determine Mr Larney’s application according to law.

112    Mr Larney is entitled to his costs in this appeal.

113    Given that the ground upon which Mr Larney has succeeded was not, in terms, advanced in the court below, it would be inappropriate to order the Minister to pay Mr Larney’s costs in respect of that proceeding. Equally, Mr Larney should not be required to pay the Minister’s costs of the proceedings in the court below given that that decision has been set aside for the reasons I have set out. Accordingly there will be no order as to costs for proceedings in the Federal Circuit Court.

Associate:

Dated:    21 May 2019