FEDERAL COURT OF AUSTRALIA

CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the application to be assessed if not agreed.

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

4.    If it is necessary to fix costs then:

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

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

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

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

REASONS FOR JUDGMENT

COLVIN J:

1    For some time, the appellant has been pursuing a favourable review of the refusal by a delegate of the Minister of his application for a spousal visa. The matter has been to the Administrative Appeals Tribunal on two occasions. The present appeal concerns a decision made by a judge of the Federal Circuit Court to refuse the appellant's application to set aside the Tribunal's second decision affirming the original delegate's decision. The grounds of appeal as originally formulated sought to raise many points. On 17 June 2019, I made orders which, amongst other things, had the effect of confining the appeal to two grounds: CHZ19 v Minister for Home Affairs [2019] FCA 914. In making those orders, I dealt with the course of the proceedings to date, the terms of the Tribunal's second decision and the reasons of the primary judge. These reasons assume knowledge of the matters stated in my earlier reasons. However, to set the context for the two grounds of appeal, I begin by summarising the key points.

The context for the appeal

2    In order to be granted the visa sought by him, the appellant had to satisfy a requirement that there be no evidence that he had given information that was false or misleading in a material particular in relation to his visa application (Requirement). If he did not do so then a discretion to waive the Requirement arose if, relevantly for present purposes, the Minister (or the Tribunal on review) was satisfied that compassionate or compelling circumstances that affect the interests of an Australian citizen justified granting a visa. Otherwise, a failure to meet the Requirement meant that the visa application must be refused.

3    The appellant's visa application was refused by the delegate of the Minister. The appellant sought view in the Tribunal. He was unsuccessful. The Tribunal found that the Requirement had not been met because of the contents of a statement that the appellant had provided to the Minister's Department in support of his visa application. The statement was to the effect that both his parents and his wife's parents supported the marriage. The information was said to be false and misleading based upon statements said to have been made by the appellant's parents when they were interviewed at a site visit to their home in India. The notes of officers conducting the interview recorded that the appellant's parents when interviewed said that the appellant was not married and that he had no children.

4    At the time of the consideration of the matter before the Tribunal on this first occasion, divorce proceedings had been commenced by the appellant's wife, but they claimed that there had been a reconciliation. The appellant and his wife each provided short letters to the Tribunal to that effect.

5    In the result, despite the evidence of the reconciliation, the first Tribunal found that the Requirement had not been met and it was not satisfied that there were compassionate or compelling circumstances justifying the waiver of the Requirement. The circumstance that had been advanced to justify waiver was the physical separation of the appellant from a child of the marriage that would occur if he was not granted a visa and therefore could not live in Australia. The child is an Australian citizen. The appellant's wife has another child from an earlier relationship. The Tribunal found that relocation of the appellant's wife and child to the appellant's country of nationality would cause separation from the older child (who was in the primary care of the wife's parents). Therefore, a decision not to waive the Requirement could cause the appellant to be separated from his wife and child (implicitly, because the appellant's wife would stay in Australia to be with her parents and other child). This was a matter that the first Tribunal gave significant weight. It also weighed other matters in finding that there were not compassionate or compelling circumstances affecting the interests of an Australian citizen.

6    An application to review the decision of the first Tribunal was conceded by the Minister on the basis that the Tribunal had not disclosed to the appellant that certificates had been issued under s 375A and s 376 of the Migration Act 1958 (Cth). Those certificates concern materials provided to the Tribunal but not disclosed to an applicant on public interest grounds. There is an obligation of procedural fairness on the part of the Tribunal to disclose the fact that there had been notification of materials under cover of the certificates and to disclose the certificates themselves to an applicant before the Tribunal: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305.

7    The matter came back before the Tribunal for a second hearing before a different Tribunal member. At the second hearing the Tribunal was required to consider the matter afresh and make a new determination 'for itself': Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [32] and SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390; (2008) 168 FCR 1 at [20].

8    In its reasons for decision the second Tribunal referred to findings by the first Tribunal.

9    The second Tribunal also affirmed the original decision by the delegate. The reasoning process of the second Tribunal is set out in my earlier decision: at [11]-[12].

10    An application for judicial review on the basis of jurisdictional error was brought in the Federal Circuit Court.

11    The Minister prepared a court book for the purposes of the hearing of the application in the Federal Circuit Court. The index to the court book included a document that was given the description 'Allegation'. It is common ground that the Allegation document: (a) was before the Tribunal; (b) was not reproduced in the court book (it being marked 'NR' in the index); and (c) was not otherwise in evidence before the primary judge. The Minister accepts that the Allegation document was not the subject of any certificate under s 375A or s 376. The Minister also concedes that the Allegation document contains material that is adverse to the appellant.

12    No issue was raised before the primary judge concerning the Allegation document. However, on appeal the appellant sought to argue that there had been a denial of procedural fairness by reason of the failure by the second Tribunal to make a copy of the Allegation document available to the appellant.

13    The primary judge dismissed the application for judicial review. The appellant then brought the present appeal.

14    The solicitor for the appellant requested that the Minister produce the Allegation document for the purposes of the present appeal. It was said that the document should be disclosed because it was relevant to the question whether any breach of procedural fairness by reason of the failure to inform the appellant that the Allegation document was before the Tribunal or provide a copy of the Allegation document to the appellant was material in the sense recently explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]-[49] (Bell, Gageler and Keane JJ).

15    The Minister declined to produce the document on the basis that public interest immunity applied. The appellant brought a formal application for orders requiring the Minister to disclose the document for the purposes of the appeal. A copy of the document was produced by the Minister to the Court in a sealed envelope for inspection if the Court considered it appropriate to undertake an inspection for the purposes of dealing with the privilege claim.

16    In written submissions the Minister invited the Court to consider the Allegation document (without disclosure to the appellant or his legal advisors) for the purposes of considering a submission that the adverse information contained in the document is of the same nature and character as information provided by the appellant in the course of the review process and that information of the same nature and character had been disclosed to the appellant. On that basis, so it was submitted, there had not been any denial of procedural fairness. The Minister did not maintain a separate submission advanced at the interlocutory stages of the appeal that it was also relevant that the Allegation document could have been the subject of a certificate, but there had been an error in the provision of the document to the Tribunal without a certificate.

17    I granted leave to the appellant to raise a claim that there had been a denial of procedural fairness by reason of the circumstances pertaining to the Allegation document even though the point had not been raised before the primary judge: see my earlier reasons at [45], [59]-[63]. The issue whether the Allegation document should be disclosed for the purposes of the appeal and the related claim to public interest immunity were matters that I expressly reserved for consideration at the hearing of the appeal: see my earlier reasons at [64].

First ground: Denial of procedural fairness by reason of Allegation document

18    The first appeal ground is that the primary judge should have found that there had been jurisdictional error by the Tribunal by denying procedural fairness to the appellant in that the Allegation document was given to the Tribunal, but wrongly withheld from the appellant. It was said that the Tribunal should have disclosed to the appellant the Allegation document and the absence of any certificates as to the document. As the ground was not argued before the primary judge any error would be a constructive error.

19    As to materiality, the submissions in support of the ground were developed on the basis that the concession by the Minister that the document was adverse meant that materiality had been demonstrated. The case was said to be in the category of cases where the appellant was denied an opportunity to respond to adverse material (as distinct from those where the document may have contained information that was of assistance to the appellant's case).

Evidence relevant to ground 1

20    At the outset of the appeal, I invited both parties to identify the materials upon which they relied having regard to my earlier reasons dealing with interlocutory matters. Senior counsel for the appellant, after some consideration, tendered one document which had not been before the primary judge but was accepted by the Minister as having been before the Tribunal. It was recognised by senior counsel for the appellant as being at the periphery.

21    The Minister sought to rely only on the material in the appeal book (which contained the material that had been before the primary judge).

22    In the course of exchanges with counsel for the appellant and the Minister, I noted that the result was that the Allegation document was not before the Court and the Minister was not able, in those circumstances, to advance submissions by reference to the contents of that document. In effect what had occurred was that the Minister had been asked to disclose the Allegation document for the purposes of the appeal, the Minister had refused to do so and had claimed public interest immunity, but the document had not been received into evidence on the appeal. I also indicated to the parties that I had not read the Allegation document which remained in the sealed envelope in which it had been delivered to the Court.

23    The hearing proceeded with the appellant relying on the concession that the Allegation document contained material that was adverse and the document had not been provided to the appellant by the Tribunal.

24    In reply, senior counsel for the appellant suggested that the Court remained reserved on the question whether there should be disclosure of the Allegation document and that was a matter that could be revisited depending upon the outcome. I expressed the view that a submission to that effect was contrary to the course of the hearing. I expressed the view that the appellant could not proceed with the appeal on one factual basis (namely that the Allegation document was not available and the Court should act on the concession that its contents were adverse to the appellant), whilst at the same time asking the Court to reserve to the appellant the ability to have another go on a different factual basis (namely by reference to the actual content of the Allegation document if a disclosure order was made and the claim to public interest immunity was not upheld) if the appellant was not successful in in the appeal without the Allegation document being before the Court. I invited the appellant to consider its position, particularly whether it now wished to have the disclosure application considered and the appeal dealt with having regard to the outcome of that application or whether senior counsel was content for the matter to be dealt with on the basis that the appeal had been argued up to that point. I adjourned for that purpose. Upon resuming, senior counsel informed the Court that the appellant did not seek to proceed with the disclosure application.

25    In those circumstances, written submissions by both parties concerning the claim to public interest immunity and whether the Minister can make submissions based upon the contents of the Allegation document without the document being provided to the appellant (or at least to his legal representatives) and whether the matters in the Allegation document were separately raised by the appellant himself or were otherwise disclosed to the appellant all fall away. As a result, the first appeal ground raises a relatively narrow point.

The relevant statutory context

26    The Secretary of the Minister's Department must, as soon as reasonably practicable after being notified that an application for review has been made to the Tribunal, give to the Registrar of the Tribunal each document in the Secretary's possession or control that is considered by the Secretary to be relevant to the review: s 352(4) of the Migration Act. Unless there has been a certificate under s 375A or s 376, the applicant for review is entitled to have access to a copy of any material given to the Tribunal for the purposes of the review: s 362A. Plainly, there was a failure to comply with this requirement. It is an important procedural protection. As stated by the majority in SZMTA at [29]:

… procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.

(footnote omitted)

27    In those circumstances, there was a breach of procedural fairness in not providing the Allegation document to the appellant. It was not argued that the failure by the Tribunal to provide the Allegation document to the appellant was justified because it was the subject of public interest immunity. Such an argument would have met with the difficulty that no such claim was raised by the Tribunal at the time and therefore it was not a claim that the appellant had an opportunity to object to and test before the Tribunal. Rather, counsel for the Minister quite properly conceded that the appeal ground turns upon materiality.

The Minister's contentions

28    The submission for the Minister was that there is nothing to suggest that the Tribunal relied upon the Allegation document in any way. Further, in the context of the chronology of events, the date of the Allegation document being provided to the Department (being 1 October 2016) meant that it had been subsumed by later events and it was the evidence as to the current status of the relationship between the appellant and wife at the time of the second Tribunal decision that determined the outcome. By the time of the second hearing, the parties had not reconciled. Finally, it was emphasised that on the question whether there should be a waiver of the Requirement, the Tribunal had found that there were compassionate or compelling circumstances because the appellant and his child were likely to endure a level of emotional hardship if they were not living in the same country. However, in the exercise of its discretion as to whether to waive the Requirement the Tribunal had found that those circumstances were not sufficient to justify the waiver of the Requirement and the grant of a visa. Therefore, given the nature of the decision to be made, the existence of some further allegation in the context of a finding as to the tumultuous relationship between the appellant and his wife could not, of itself, be material to the exercise of discretion by the Tribunal. On that basis it was submitted that the appellant had not demonstrated (in the language used by Bell, Gageler and Keane JJ in SZMTA at [45] and [50]) that the breach of natural justice was material in the sense that it 'could realistically have resulted in a different decision'. Emphasis was placed upon the fact that it was the appellant who bore the onus of showing materiality.

Materiality

29    In SZMTA, the High Court considered the consequence of a failure to comply with provisions like s 375A or s 376 that limited disclosure of a document to the Tribunal without qualification or so limited the disclosure subject to a discretion to make some disclosure to the applicant before the Tribunal. The provisions operate where there has been a certificate by the Secretary as to certain specified matters and notification to the Tribunal by the Secretary that the provision applies to a document or information. In those circumstances, it was possible that there could be an incorrect notification (say because the certificate was improperly issued) or a failure to inform a party of the existence of a certificate and therefore of the consequent notification to the Tribunal by the Secretary that one of the provisions applied. It was held that in either case there would be jurisdictional error provided there was materiality.

30    In summarising the result in the appeal, the majority put the position as to materiality in the following way (at [2]-[4]):

… the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

… an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.

Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. … evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application.

31    In this case, the Court is not concerned with a failure to advise an applicant as to the existence of a notification. Nor is it concerned with an incorrect notification. It is concerned with a failure to provide a document to the applicant in accordance with s 362A(1). However, like the position in SZMTA, the complaint is of a breach of the obligation of procedural fairness arising from material being before the Tribunal in circumstances where the applicant was not aware of that fact.

32    Later in their reasons, the majority in SZMTA explained further what was meant by the materiality requirement when it came to jurisdictional error. At [44]-[45], their Honours held:

… Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.

…

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

(footnote omitted)

33    A little later at [48], the majority held:

In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.

34    Importantly, in such cases, it does not follow from proof that there was a failure to refer to notified material in the Tribunal's reasons (and therefore a failure to bring the material to account) that there was no consequence for the decision-making process. In such a case, the invalidity may have deprived a party of the opportunity to make submissions as to the matters stated in the document or to advance countervailing material or to place reliance on the material if it was favourable. In such instances, those may be matters that could realistically have affected the result. Reaching a conclusion as to whether that was so requires the Court to evaluate an hypothetical, namely what might have occurred if there had been compliance with a particular statutory obligation that must be met in order for there to be a valid exercise of power. As the decision-making authority was entrusted to the Tribunal and not to the Court, in considering the hypothetical it is important that the Court not form its own view as to what it would have done. The question to be asked by the Court on an application for judicial review is whether it is realistic to say that there could have been a different decision by the decision-maker under review. If so, jurisdictional error having been demonstrated, the party is entitled to a decision made by the repository of the power and the Court cannot deprive the party of a decision made according to law. It is not for the Court to usurp that power on the basis of its own view as to the significance of the material. It must lack materiality in the sense that it could not realistically have affected the outcome as determined by the Tribunal.

35    The majority then stated at [49]:

Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome', the task is not impossible and can be done in these appeals.

(footnotes omitted)

36    The majority went on to say (at [50]):

In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.

37    These statements emphasise that the Court must be careful when considering what the evidence shows as to the effect of the breach of procedural fairness so as to ensure that a view is formed about what the Tribunal might have decided rather than a view about the significance of the relevant material if the Court was called upon to make the relevant decision. It is relevant to look at what the Tribunal actually decided. It is not enough that undisclosed material was not brought to account by the Tribunal. Rather, there must be further consideration as to what might have happened if the material had been disclosed.

The circumstances of this case

38    In this case, the breach of the obligation to afford procedural fairness relates to the failure to provide the appellant with the Allegation document. In deciding whether the breach was material, it is relevant that the Allegation document was sought for the purpose of meeting the requirement of proof, but production was resisted by the Minister. This is not a case where the appellant as the applicant for review has simply not sought to adduce the document. Even so, the course of the argument means that all that is known as to the content of the document is that it was described as 'Allegation' when the book of documents was prepared by those acting for the Minister in the conduct of the proceedings in the Federal Circuit Court and that it contains material that is adverse to the appellant.

39    The Allegation document itself is not referred to in terms in the reasons of the second Tribunal. Although the Minister advanced a submission on the basis that the matters in the Allegation document were not relied upon by the Tribunal (at least as to any matter that was not otherwise before the Tribunal in any event), it is not possible to evaluate whether that is the case without the document being before the Court.

40    However, that is not the end of the matter. There is an express statutory obligation upon the Tribunal to give to the applicant clear particulars of the information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review: s 359A(1)(a). The Act is quite specific as to how that must be done: s 359A(2) and s 379A. So, if the Allegation document contained information of that character (and there was no notification that s 375A or s 376 applied) then s 359A would require particulars to be given of that information to the appellant. In those circumstances, on the face of the provision, the terms of s 359A may support a conclusion that the failure to separately disclose the content of the Allegation document could not have affected the outcome. As the appeal ground is advanced on the basis that the Allegation document contained information adverse to the appellant, if it was material then particulars of the information were required to be provided to conform to the requirements of s 359A.

41    In Minister for Immigration and Border Protection v Singh, Kenny, Perram and Mortimer JJ recognised that there may be instances where matters of public interest immunity may limit the scope of the hearing rule when it comes to procedural fairness. Further, the certificate provision in s 375A was found to prevail over s 359A in the case of direct conflict between provision of particulars and maintaining the protection from disclosure of information the subject of s 375A: at [53]-[56]. The reasoning in Minister for Immigration and Border Protection v Singh was supported by the majority in SZMTA at [57].

42    These matters limit any inference that might be drawn from expected compliance with the terms of s 359A. However, as I have noted, this is not a case where public interest immunity was claimed at the time of the proceedings before the Tribunal. There is no suggestion that the Allegation document was not produced because of a view taken at the time that public interest immunity applied to the document. The public interest immunity claim was raised for the first time on appeal. Nor is it a case where there was a certificate and notification to the Tribunal in respect of the document. Rather, what occurred was that the Allegation document was before the Tribunal, but was not disclosed to the appellant (then applicant). So, if it contained adverse information which was sufficiently material to be a reason or part of a reason for affirming a decision then clear particulars of that information had to be provided by the Tribunal.

43    Further, if the content of the Allegation document was considered by the Tribunal to be material to its decision to affirm the decision of the delegate to refuse the visa application then that was a matter that would be expected to be included in the Tribunal's reasons. I summarised the position in Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 (Kenny and Bromberg JJ agreeing). Relevantly for present purposes: (a) the Tribunal must set out in its reasons the findings on any material questions of fact and refer to the evidence or other material on which those findings were based; (b) the obligation will often require the Tribunal to state in its reasons whether it has rejected or failed to accept evidence going to a material issue; (c) the reasons themselves are evidence of the findings actually made, referred to and relied upon by the Tribunal and that no finding, evidence or reason which was of any significance to the decision has been omitted; and (d) where the reasons concern the formation of a state of satisfaction, the inference to be drawn from a failure to refer to a matter is that it was not activating the Tribunal when it formed its required state of satisfaction: at [11]-[15]. In this case, the Tribunal had to form a state of satisfaction as to compassionate or compelling circumstances.

44    Therefore, in the absence of material to the contrary, the reasons of the second Tribunal can be approached on the basis that they state the matters that supported the decision. There is no suggestion that the appellant did not have an opportunity to address the matters the subject of the reasons. It is not argued that the reasons demonstrate that the obligation under s 359A was not performed. The Allegation document was adverse, not potentially helpful. Therefore, unless it can be demonstrated that there was some jurisdictional error infecting the reasoning (a matter considered under the second ground), then once the statutory context is considered, it is difficult to see how the failure to provide the Allegation document to the appellant could have realistically affected the outcome.

45    The critical factual inferences to be drawn from the statutory context are that material information was disclosed to the appellant and the Tribunal's reasons disclose what actually influenced the making of the decision. Subject to the second ground of appeal (considered separately below) there has been no claim that there was no opportunity to address those adverse matters. Further, as the Allegation document contained adverse information this is not a case where there was a lost opportunity to present helpful information.

46    Further, this is not a case like SZMTA where the breach of procedural fairness related to a failure to inform an applicant of a notification of the kind to be made under s 375A or s 376. Nor is it a case where there was material that was not before the Tribunal by reason of the breach of procedural fairness. In such instances, there is a counter-factual that must be evaluated, namely how would events have played out if the material had been before the Tribunal. Importantly, in such cases there may have been an exercise of the statutory power without reference to information or submissions that could have been made. In such instances, as I have noted, the Court must be careful not to usurp the exercise of the statutory power by the Tribunal. The decision-making power is entrusted to the administrative body, not the Court. On review for jurisdictional error, the Court is seeking to ensure that a decision of the kind required was made by the repository of the power, in this case the Tribunal. The Court is evaluating only whether it was realistic that there could have been a different result.

47    However, in this case, the statutory context means that the Court can safely conclude that if the information was material then there would have been a notification to that effect and it would be a matter included in the reasons. Therefore, even without knowing what was in the Allegation document, the Court knows that anything that was material to the Tribunal in making its decision has been stated. The appellant makes no complaint that any aspect of the reasons dealt with matters not known to the appellant or about which he was not given notice. In those circumstances, materiality has not been demonstrated. There is no suggestion that there are different submissions that might have been made or that there might have been different evidence advanced having regard to the basis upon which the Tribunal made its decision. There is no counter-factual to be considered. Therefore, in the particular statutory context, there is no foundation for concluding, as a matter of fact, that things might have played out differently.

48    If it had not been possible to reach the conclusions expressed in the previous paragraph then I would not have been persuaded by the submissions for the Minister to the effect that, in the context of the tumultuous history of the relationship between the appellant and his wife, the Allegation was not material or significant. Matters concerning the relationship between the appellant and his wife were relevant to whether to waive the Requirement in the interests of their child. If there had been some basis to suggest that the content of the Allegation document, if known, could have been a basis for the appellant to do something that could have influenced the outcome of a Tribunal decision then it would not have been appropriate for the Court to form a view as to that outcome. Therefore, materiality would have been demonstrated.

Second ground: Failure to exercise jurisdiction or apprehended bias

49    The second appeal ground as stated in the amended notice of appeal relies upon four enumerated matters which are said to establish that there was a constructive failure by the Tribunal to exercise its jurisdiction or there was a reasonable apprehension of bias in the exercise of the jurisdiction or both. The primary judge is said to have been in error in failing to find such errors.

50    The four matters alleged are actually five and are as follows:

(1)    the Tribunal reproduced and adopted facts determined in the quashed decision made by the first Tribunal without itself conducting a full de novo review;

(2)    the Tribunal simply copied or adopted findings in first Tribunal decision and did so in spite of and disregarding new information;

(3)    the Tribunal's written reasons substantially or materially copied the reasons of the first Tribunal decision;

(4)    the Tribunal failed to call the appellant's wife to give evidence central to the Requirement; and

(5)    the Tribunal foreclosed the appellant from producing his phone to prove that he contacted the Department in New Delhi on the basis that the first Tribunal had decided the point against him and then proceeded to make an adverse finding against him concerning that matter.

51    Despite being separately stated, the first three matters reduced to a single submission to the effect that a consideration of certain parts of the reasons of the second Tribunal compared to the reasons of the first Tribunal showed that there had been a failure by the second Tribunal to make its own findings on the basis of a de novo review. As was recognised in MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [30], substantial copying from an earlier decision may be characterised as different types of jurisdictional error. Relevantly for present purposes having regard to the terms in which the second appeal ground is expressed, it may be characterised as a failure to discharge the statutory function or as disclosing bias. For the following reasons, it has not been demonstrated that there was copying by the second Tribunal in the sense of some form of adoption of the findings and conclusions of the first Tribunal without the application of an independent mind. It is only where it can be shown that the Tribunal has not made a decision for itself that there is reviewable error. The authorities on this point were reviewed in MZZZW at [36]-[60].

52    The appellants relied upon a number of aspects of the reasons of the second Tribunal. For the following reasons those aspects do not support the submission that there was a failure by the Tribunal to determine the appellant's application for itself or that it was biased in the sense that it simply adopted what the first Tribunal had done.

53    The course of reasoning by the second Tribunal was as follows.

54    First, the Tribunal recounted in its reasons the main aspects of the reasons of the first Tribunal at paras 36 to 45. It consistently recorded those matters by reference to what the first Tribunal did. The form in which this part of the Tribunal's reasons were expressed does not suggest copying or adoption of findings made by the first Tribunal.

55    Second, the Tribunal then dealt with evidence provided 'during the current review'. It introduced this part of the reasons by stating that it had considered the delegate's decision and the decision of the first Tribunal (para 46). It is appropriate for the Tribunal to review the history of the matters to understand the issues and the material. The manner in which the reasons are expressed when considered in the context of what follows does not support a conclusion that the Tribunal was adopting the earlier Tribunal decision.

56    Third, the Tribunal then stated immediately that it 'advised the applicant that it had taken into account the documentation before it including the notes of the site visit recorded by Departmental officers, his father's affidavit and his statutory declaration dated 12 April 2016'. Importantly, the 'site visit' is the visit to the appellant's parents in India that provided the basis for an issue as to whether the Requirement had been met. Therefore, it is apparent from this part of the reasons that the Tribunal is itself considering the factual material relevant to that key issue. Further, the notes and other materials were before the second Tribunal so it is not the case that the Tribunal is confining its consideration to the findings by the first Tribunal as to materials that were before the first Tribunal.

57    Fourth, the Tribunal then referred to matters that had been raised with the applicant in the second Tribunal hearing (paras 47 to 48). The Tribunal then made findings concerning the appellant's lack of truthfulness in dealings with the Department and the Police and did so based on matters that were the subject of evidence by the appellant at the second Tribunal hearing (para 49).

58    Fifth, the Tribunal then made its own finding on the basis of these matters that the Requirement had not been met. In doing so it stated that it placed considerable weight on the details in the notes of the site visit (paras 50 to 53).

59    Sixth, the Tribunal then set out the relevant provisions concerning when the Requirement may be waived (paras 54 and 55). It referred to the fact that it had regard to the procedural guidelines of the Department known as PAM3 (paras 56 to 60). The Tribunal then stated that '[f]or the following reasons, the Tribunal is not satisfied that the requirements should be waived' (para 61). The reasons were then expressed in paras 62 to 88. The only paras within those reasons that were relied upon by the appellant in support of its contention that the Tribunal had not performed its function or was biased because it did not form its own view or simply copied the findings of the first Tribunal, were the passages at paras 77 and 78 and at paras 86 and 87.

60    Seventh, in the course of its reasons as to why the Requirement should not be waived, the Tribunal said that it had regard to the reasons of the first Tribunal and noted four matters as to evidence provided by the parents of the appellant's wife to the first Tribunal (para 77). The reasons then stated that the adverse information provided by the wife's parents 'was formally put to the applicant' by the first Tribunal and time given to respond (para 77, last dot point). All of these matters provide the context for what was stated in the following paragraph of the reasons of the Tribunal (para 78) which was expressed as follows:

The Tribunal had regard to the information the applicant provided to the first Tribunal and in a joint statutory declaration he made with [his wife] in which he said her parents were aware of the reconciliation. The Tribunal put this information to the applicant pursuant to s. 359AA of the Act. He said [his wife] told him that her parents were aware of the reconciliation and he believed her.

61    The matters stated at para 78 were raised with the appellant in the second Tribunal hearing (transcript page 10). Therefore, the form of what is set out at para 77 provides the context for a consideration of the evidence of the appellant as to his reconciliation. It deals with the way matters arise at the first hearing and then the evidence given by the appellant at the second hearing. The Tribunal returned to the topic at para 86. It recounted again the findings made by the first Tribunal about reconciliation. However, the Tribunal then dealt with the issue by making the following finding which, consistently with the rest of the reasons, refers to the second Tribunal as 'the Tribunal' and distinguishes the earlier review by using the term 'first Tribunal':

The applicant told the Tribunal that [his wife] told him that her parents were aware of the reconciliation. Given the first Tribunal hearing was on 21 February 2017 and that the applicant had asserted the reconciliation had occurred in September/October 2016, the Tribunal does not accept the applicant's explanation and considers it likely that he was aware [his wife's] parents did not know of the reconciliation.

62    Plainly, the Tribunal is itself engaging with the material, including what happened at the first Tribunal hearing and forming its own view having raised the matter itself with the appellant.

63    Eighth, the Tribunal's reasons concerning waiver of the Requirement conclude with the following at para 87:

The Tribunal has taken into account the tumultuous nature of the applicant's relationship with [his wife], the mutual allegations of family violence, the concern and involvement of external parties, such as [his wife's] parents and the former ICL. The Tribunal has weighed the nature and the extent of the fraud. Based on these considerations and the evidence before it, the Tribunal does not consider that the compassionate or compelling circumstances that affect the interests of the Australian citizen child in this matter justify the granting of the visa.

64    A submission was advanced based on the fact that the phrase 'nature and extent of the fraud' had been used by the first Tribunal (para 86 of is reasons). Further, it was said that there was no other reference to fraud in the reasons of the Tribunal. It is apparent from the reasons of the first Tribunal that its reference to the 'nature and extent of the fraud' is to a phrase that appears in PAM3 (para 80 of reasons of first Tribunal). It is a description concerning the extent to which there has been a breach of the Requirement. As I have noted, the reasons of the Tribunal also refer to consideration of PAM3. In those circumstances, there is nothing remarkable in the repetition of that phrase in the reasons of the Tribunal.

65    A separate submission was advanced to the effect that there were materials before the second Tribunal that were not considered which showed that there was no separate consideration of the application by the second Tribunal. They relied to a significant extent upon matters that were recorded in a transcript of the first hearing. However, the transcript was prepared for the purposes of the application to the primary judge and therefore well after the second Tribunal hearing. Therefore, that submission was misconceived. The only other material that was said to have been not considered by the Tribunal was the content of the letters provided by the appellant and his wife to the first Tribunal as to their reconciliation. However, there was no dispute that by the time of the second hearing that was no longer the position. The information was well out of date. Indeed, by the time of the second Tribunal hearing the appellant's wife had obtained a restraining order against the appellant. There is no merit in these contentions.

66    To the extent that the second ground relies upon the failure by the Tribunal to call the appellant's wife, for reasons that I gave in my earlier decision there was no obligation on the part of the Tribunal to take oral evidence from anyone other than the applicant: see [78] of my earlier reasons. The materials before the Tribunal strongly indicated that the appellant's wife was likely to give evidence that was adverse to the appellant. Indeed the transcript of the second hearing conducted by the Tribunal shows that much of the hearing was occupied with putting to the appellant matters relating to complaints of domestic violence. In those circumstances, the failure by the Tribunal to arrange for the appellant's wife to give evidence was not a failure to perform its function nor did it manifest bias.

67    Finally, there is the issue of what occurred concerning the appellant producing his phone to the Tribunal. As I have noted, the issue as to whether there was a failure to meet the Requirement turned upon what the appellant's own parents communicated during a site visit to their home in India. It appears from the material that at one stage the appellant maintained that there had not been a site visit by officers of the Department. He said that he had contacted the Department office in New Delhi and there was no record of the site visit. However, before the Tribunal the notes of the site visit were produced and there was evidence advanced by the appellant as to what occurred at the site visit which contradicted the notes. So, before the Tribunal there was no issue as to whether the site visit actually occurred. Rather, the issue concerned what was said at the site visit.

68    The appellant made submissions to the Tribunal about what had occurred at the site visit and that his father did not understand English and the officers of the Department gave him little time to respond and that his mother and father were harmless and would have allowed photos to be taken (transcript page 8). Then there was the following exchange (the Tribunal member recorded as M and the appellant as A):

M    Okay so we will go on the fact that you made a statutory declaration saying that you telephoned the Department to complain about this or ask about this?

A    Yes, yeah I did, I called in New Delhi your Immigration Department like from Australia. When I rang them and then I asked them who was they like they went to my house and then they didn't tell me anything even I call here in Immigration Department and they, yes, then they didn't give me any details about.

M    They actually did they said that there was no record of it.

A    Yeah that's it went missing.

M    There's no record of you calling either.

A    No I did.

M    But there's no record of you calling.

A    I can give you call details if you want.

M    No I'm saying the Department has already did there's no record of you calling.

A    Who?

M    Calling the Department.

A    Okay, look, look I've got on my phone with me.

M    I'm ...

A    No, no I understand, look,

M    The Tribunal ...

A    No, no, look, I understand what is happened last time I'm really sorry about that but I can provide you..

M    I'm not...

A    No, no, no.

M    The previous Tribunal has already made that finding.

A    Okay.

M    They are satisfied you did not, there's no record of that call.

A    Okay, I'm sorry about that I don't know that, but if you want that I can provide you, when I was, I don't know, I can provide you.

69    In the appeal, it was submitted for the appellant that the exchange showed that the Tribunal was acting on the finding of the first Tribunal. Taking the exchange as a whole I do not accept that submission. Rather, the Tribunal is putting to the appellant what the Departmental records show. In any event, for reasons I have given the issue was of very marginal relevance. It was a matter that went only to the credit of the appellant, namely whether the appellant had been truthful about whether he had contacted the Departmental Office in New Delhi. Before the Tribunal, the appellant admitted that he had been untruthful on many occasions. In the result, the issue was dealt with by the Tribunal in its reasons in the following way (at para 48):

The applicant told the Tribunal that he contacted the Department in New Delhi and in Australia to ask about the site visit. He said he was advised by the Department that there was no record of a site visit to his parents' house. The delegate noted there was no evidence on the Department's systems of these contacts.

70    It is a factual finding with which the appellant disagrees. It is an aspect of the appellant's evidence that was not accepted. However, the adverse finding by the Tribunal as to the lack of credibility of the appellant rests upon the much stronger findings at paras 49 and 50 (described above).

71    In the context of the Tribunal's reasons as a whole, the matter is of insufficient significance to rise to form the basis for a conclusion that the Tribunal failed to undertake its statutory function or was biased in the sense that it simply followed the decision of the first Tribunal.

72    It follows that the first four matters which provide the alleged factual foundation for ground 2 have not been established and the fifth matter was not material to the Tribunal's overall reasoning. Therefore the second ground of appeal has not been established as to the allegation that the primary judge should have found the Tribunal did not perform its statutory function or was biased.

Conclusion and orders

73    For the reasons I have given the appeal should be dismissed. The parties accepted that costs should follow the event. Therefore, there should be orders dismissing the appeal with costs.

Associate:

Dated:    19 July 2019