FEDERAL COURT OF AUSTRALIA
Singh v Minister for Home Affairs [2019] FCA 1790
ORDERS
Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant have leave to file, serve and rely upon the supplementary appeal book.
3. The appellant have leave to amend his grounds of appeal to include ground 4 of the Draft Amended Notice of Appeal (as amended orally to abandon particular 4.1) and particulars 5.1, 5.3, 5.4, 5.5 and 5.6 of ground 5 of the Draft Amended Notice of Appeal.
4. Subject to order 3, the appellant’s application to rely on the Draft Amended Notice of Appeal be dismissed.
5. The orders of the Federal Circuit Court of Australia made on 27 February 2018 be set aside.
6. The matter be remitted to the Administrative Appeals Tribunal.
7. As to costs:
(a) the appellant file submissions on costs generally, not exceeding 2 pages within 14 days;
(b) the first respondent file submissions in reply on costs not exceeding two pages within a further 14 days; and
(c) costs be determined on the papers.
8. Alternatively to order 7, the parties provide a minute of proposed consent orders fixing the question of costs within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCKERRACHER J:
THE APPEAL
1 The appellant, Mr Singh appeals a decision of the Federal Circuit Court of Australia, which dismissed a judicial review application from the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Border Protection (as he then was) not to grant Mr Singh a Partner (Residence) (Class BS) visa (Partner Residence Visa).
2 The background giving rise to these proceedings was set out in the decision of the primary judge. The background facts were not in dispute before the primary judge, nor on appeal to this Court. It is convenient to draw on this background.
3 Mr Singh, is a citizen of India, born in Jalandhar, Punjab. On 20 September 2007, he was granted a Student (Subclass 572) visa. He arrived in Australia on 8 October 2007, where he subsequently first met his sponsor (who was born in Australia).
4 On 27 October 2008, the Mr Singh’s sponsor and he were married. On 22 August 2009, the sponsor (now his wife) gave birth to their child. On 14 October 2009, on the basis of his relationship, Mr Singh made a combined application for:
(a) a Subclass 820 Partner visa (Temporary Partner Visa); and
(b) a Partner Residence Visa.
5 On 12 March 2010, Mr Singh was granted a Temporary Partner Visa.
6 On 4 February 2013, while the Mr Singh’s Partner Residence Visa was being processed, he was convicted in the District Court of Western Australia of two child sex offences. He was sentenced to a total period of imprisonment of two years and nine months.
7 In May 2015, the Minister sent officers to the village of Jalandhar, Punjab in India to conduct a site visit. Mr Singh’s mother lived in this village. She was interviewed by the officers. During the interview, she is alleged to have said (although Mr Singh has disputed this):
(a) Mr Singh had been studying in Australia but he had left his studies;
(b) Mr Singh had married his sponsor but had done so to get permanent residency in Australia; and
(c) she was aware that Mr Singh and his sponsor had a child but did not know the child’s date of birth.
8 A report was made of this visit (the Departmental Report). Particulars of the notes contained in the Departmental Report were provided by way of a letter from the Department of Immigration and Border Protection (as it then was) dated 25 September 2015 (the Departmental Letter). Mr Singh responded to the Departmental Letter by sending various emails to the Department providing, amongst other things, photos and copies of Facebook Messenger communications.
9 As noted by the primary judge, on 5 November 2015, a delegate made a decision not to grant Mr Singh a Partner Residence Visa on the basis that the delegate was not satisfied that the relationship between Mr Singh and his sponsor was ‘genuine’ as required by s 5F and s 5CB of the Migration Act 1958 (Cth).
10 On 9 November 2015, Mr Singh applied to the Tribunal for review of the delegate’s decision. Between 7 and 12 October 2016, Mr Singh provided the Tribunal with numerous statutory declarations, photos and documents in support of his matter before the Tribunal.
11 A hearing before the Tribunal was held on 19 October 2016 with Mr Singh, his sponsor, his sponsor’s mother and Mr Singh’s mother giving evidence at the hearing. The Tribunal directed that Mr Singh provide further information to the Tribunal by 21 October 2016. Mr Singh provided the Tribunal with a large bundle of documents and an email attaching some photos.
12 On 24 February 2017, the Tribunal affirmed the delegate’s decision. The Tribunal determined that the issue for its consideration was whether Mr Singh’s relationship with his sponsor met the definition of ‘spouse’ as defined in s 5F of the Act. The Tribunal concluded that it did not.
13 In determining that Mr Singh’s relationship with his sponsor did not meet the definition of ‘spouse’, the Tribunal made the following findings:
(a) Mr Singh and his sponsor had lived together and had been in some form of relationship since 2008;
(b) Mr Singh and his sponsor had a child together;
(c) Mr Singh had some responsibility for his own child and for the sponsor’s other two children (those children being from a different relationship);
(d) Mr Singh’s marriage was valid for the purposes of the Act (as required by s 5F(2)(a) of the Act), but Mr Singh’s motives for marrying were not honourable; and
(e) Mr Singh was at times an unreliable witness; in particular, in relation to his sponsor’s Centrelink benefits.
14 The Tribunal was not satisfied that Mr Singh and his sponsor had a mutual commitment to a shared life as husband and wife. Further, the Tribunal was not satisfied that Mr Singh’s sponsor did not live separately and apart from him on a permanent basis. The Tribunal concluded that Mr Singh did not meet cl 801.221(2)(c) of Sch 2 of the Migration Regulations 1994 (Cth) because the Tribunal was not satisfied that Mr Singh was the ‘spouse’ of the sponsor.
15 On 23 March 2017, Mr Singh filed an application for judicial review in the Federal Circuit Court seeking an order for the issue of constitutional writs. On 30 June 2017, he filed an amended application in that Court which relied on six grounds of review, as follows:
The [Tribunal] committed jurisdictional error by:
1. Failing to give any or adequate weight to a relevant consideration namely the length of [Mr Singh’s] and respondent’s [sic] relationship and period of cohabitation.
PARTICULARS
The Tribunal acknowledged the evidence demonstrated that the sponsor and [Mr Singh] “have a form of relationship” and “appear” to have lived together for periods since their marriage in 2008 at paragraphs 9, 19 and 106 but failed to consider this evidence in any real or active way.
2. Failing to give any or adequate weight to a relevant consideration namely the childcare responsibilities of [Mr Singh’s] to the children of the relationship.
PARTICULARS
The Tribunal acknowledged existence of a child to [Mr Singh] and sponsor at paragraphs 10 and 107 of the decision and the childcare responsibilities of [Mr Singh] for all of the children of [Mr Singh] and respondent [sic], see paragraph 56, but otherwise failed to consider this evidence in any real or active way.
3. Illogically and unreasonably rejected probative evidence.
PARTICULARS
The Tribunal at paragraph 76 decided to give “no weight” to 14 witness statutory declarations filed in support of the application. In doing so failed to disclose any genuine evaluation of the statutory declarations or any process of weighing the evidential value of the material.
4. Illogically and unreasonably decided the parties were not “financially committed to each other”.
PARTICULARS
The Tribunal came to such a finding at paragraph 51 notwithstanding substantial, reliable evidence to the contrary.
5. Gave excessive weight to the financial aspects of the relationship and insufficient weight to evidence concerning the:
(a) nature of [Mr Singh’s] and sponsor’s household;
(b) social aspects of [Mr Singh’s] and sponsor’s relationship; and
(c) nature of [Mr Singh’s] and sponsor’s commitment to each other in terms of regulation 1.15A(3)(d) of the Migration Regulations 1994 (Cth).
6. Gave excessive weight to allegations against an [Mr Singh’s] witness.
PARTICULARS
The Tribunal at paragraph 89 unquestioningly preferred the evidence of the Department to that of [Mr Singh’s] mother without disclosing the reasoning or process in doing so.
16 It is unnecessary to consider the Federal Circuit Court reasons in detail because the Mr Singh seeks leave to rely upon substantially new grounds of appeal in this Court.
STATUTORY CONSIDERATIONS
17 Section 5 of the Act defines spouse as having ‘the meaning given by section 5F’. Section 5F of the Act and reg 1.15A of the Migration Regulations relevantly provide:
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
…
1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
18 The Notice of Appeal filed on 19 March 2019 contained three grounds of appeal which differed from those relied upon before the primary judge. On 30 May 2019, an affidavit was filed on behalf of Mr Singh (Mr Singh’s affidavit), which was dated 14 May 2019. It annexed a Draft Amended Notice of Appeal. This affidavit was filed in support of an interlocutory application by which Mr Singh sought leave to amend the Notice of Appeal in accordance with the Draft Amended Notice of Appeal and leave to file and serve a Supplementary Appeal Book. The Draft Amended Notice of Appeal seeks to raise three additional grounds of appeal and make amendments to the prior grounds of appeal. Mr Singh seeks leave to rely on these six grounds of appeal.
19 Before coming to the substance of the appeal it is necessary to note that the Appeal Book will be supplemented by additional pages which had been (no doubt inadvertently) omitted. The application to include these pages was made over two months after the appeal was commenced. Although some issue was taken with its inclusion, the exclusion of the material would not have been in the interests of justice. The Appeal Book was supplemented by this additional material.
20 It is necessary to set out in detail the full grounds of appeal that were originally filed in this Court and identify the proposed grounds of appeal now sought to be relied upon in the Draft Amended Notice of Appeal:
Ground 1
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a denial of procedural fairness because the [Minister] had issued and provided to the [Tribunal], but not to [Mr Singh], a certificate under s.375A of the [Act].
Particulars
1.1 The [Minister] issued a certificate under s.375A on 19 November 2015, and provided it to the [Tribunal].
1.2 [Mr Singh] was not provided with a copy prior to the [Tribunal’s] decision 24 February 2017 nor informed of the fact of its existence.
1.2.1 The subject matter of the s.375A certificate included an email dated 7 February 2013 referencing [Mr Singh’s] conviction for ‘encouraging a child under 13 years of age to engage in sexual behaviour’ and sentence of ‘2 years and 9 months’.
1.2.2 [Mr Singh] was denied the opportunity to challenge the validity of the certificate, and in any event the gravity of the particular offence (as described) was apt to consciously or unconsciously affect the decision-maker’s attitude toward the assessment of [Mr Singh’s] credit and the decision-maker’s attitude toward the desirability of granting [Mr Singh] a visa generally.
1.3 Notwithstanding [Mr Singh] did not raise this ground below, and in fact eschewed reliance on the non-disclosure of the s.375A certificate when raised by the learned [Federal Circuit Court] Judge, it is in the interest of justice that the ground first be raised on appeal.
Ground 2
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a reasonable apprehension of bias.
Particulars
2.1 At [87] of the [Tribunal’s] reasons for decision, the member states that ‘the Tribunal put it to [a witness for Mr Singh] that it was not acceptable to state that the Department’s record was untrue’.
2.2 At [79], the member states that ‘the Tribunal warned [Mr Singh] not to make unfounded allegations with respect to officers of the Department.’
2.3 At [104], the member states its finding that ‘[Mr Singh’s] motives were not honourable’.
2.4 Individually or cumulatively, the effect of these statements would be such that a fair-minded observer might reasonably apprehend that the [Tribunal] might not have brought an impartial mind to the decision, because it invited a view that the member could not have been dissuaded from its view of the Department’s records.
2.4.1 The [Tribunal] had knowledge of information particularised at [1.2.1] above, unknown to [Mr Singh], which was a prejudicial but inadmissible fact or circumstance the possession of which was such that a fair-minded observer might reasonably apprehend that the [Tribunal] might not have brought an impartial mind to the decision.
2.4.2 The [Tribunal] treated [Mr Singh’s] mother’s direct evidence, notwithstanding the allegation advanced by the Departmental officers in India that no photographs of the sponsor and [Mr Singh’s] daughter were displayed, that there were in fact photographs of the sponsor and [Mr Singh’s] daughter displayed, and her evidence that ‘there were many other photos lying around and they may have missed those photos’, as an ‘admission by [Mr Singh’s] mother] that photographs of the sponsor and [the daughter] may not have been visible to others’ involved a distortion of the evidence justifying a conclusion of apprehended bias.
2.5 Notwithstanding [Mr Singh] did not raise this ground below, it is in the interest of justice that the ground first be raised on appeal.
Ground 3
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a failure to address the real question, namely whether [Mr Singh] and sponsor were ‘in a married relationship’ within the meaning of ss.5F(2) of the [Act][.]
Particulars
3.1 At [104] of the [Tribunal’s] reasons for decision, the member states; ‘for the reasons given above, the Tribunal considers [Mr Singh’s] mother’s statement during a Departmental interview in 2015 that [Mr Singh] married the sponsor in order to obtain permanent residency in Australia indicates [Mr Singh’s] motives for marriage were not honourable’.
3.2 The [Tribunal] set up a false dichotomy by which entering into a marriage ‘in order to obtain permanent residency in Australia’ precluded a finding that [Mr Singh] and sponsor were nevertheless also ‘in a married relationship’ within the meaning of ss.5F(2).
3.3 In truth, a marriage entered into with an objective of securing for one party Australian permanent residency is not inconsistent with being ‘in a married relationship’ within the meaning of ss.5F(2).
3.4 Notwithstanding [Mr Singh] did not raise this ground below, it is in the interest of justice that the ground first be raised on appeal.
Ground 4
The learned Federal Circuit [court] Judge erred in not finding that the decision of the [Tribunal] was not vitiated by a constructive failure to exercise jurisdiction by not considering at all the opinions of [Mr Singh’s] and the sponsor’s friends and acquaintances about the nature of the relationship, or not giving proper, genuine or realistic consideration to them, as was mandated by Regulation 1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth).
Particulars
4.1 The [Tribunal] did not consider at all the opinions expressed in statutory declarations by [JB] [AB57-58]; Ms [AG] [AB59 & AB62-63]; [MC] [AB64-66]; [YG] [AB67], and; [DC] [AB69-70] produced by [Mr Singh] to the delegate.
4.3[sic] The [Tribunal], in giving ‘no weight’ to any of the 14 statutory declarations of friends and acquaintances, did not exhibit any meaningful or adequate engagement with the content of those statutory declarations by dismissing each of them for allegedly ‘withholding’ information relating to [Mr Singh’s] imprisonment, thereby implicitly assimilating each of them as if they were factually indistinguishable.
Ground 5
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by arbitrariness or capriciousness, or was without an intelligible justification, or was otherwise unreasonable.
Particulars
5.1 The [Tribunal] gave ‘no weight’ to 14 statutory declarations, because, it was said, they ‘withheld’ information that [Mr Singh] had been imprisoned for 2.5 years during the period the declarants stated they had known [Mr Singh] and the sponsor, unreasonably assimilating each and every declarant so as to universally reduce their probative value to zero.
5.2 The [Tribunal] unreasonably failed to exercise, or consider whether to exercise, its power under section 363 of the [Act] to call the Departmental officers (who had allegedly conducted an investigation in India) to give evidence, in circumstances where the information they provided was directly contradicted by [Mr Singh’s] mother, rather than to simply prefer the second or third-hand hearsay of the Departmental officers.
5.3 Particular [2.4.2], the substance of which is repeated, involved an unreasonable distortion of the evidence.
5.4 The [Tribunal’s] finding that there was ‘no evidence’ of any joint liabilities [50] or joint assets, was contrary to the contemporaneous evidence of the Medibank Private statements listing all members of the family, joint ambulance cover, the sponsor’s transmitting $4,950 to [Mr Singh’s] mother in India between November 2015 and February 2016, the payment of a gas bill, transfers by [Mr Singh] to his wife, and evidence that [Mr Singh] had nominated his wife as a superannuation beneficiary.
5.5 The [Tribunal’s] decision that it was not satisfied of any of: a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing, that they live together or do not live separately and apart on a permanent basis, was unreasonable as indicative of an unspecified jurisdictional error in the [Tribunal’s] approach.
5.6 The [Tribunal] stated that it was ‘unable to determine to what degree, if any, the parties pool their financial resources at time of decision’ due to an alleged lack of ‘current documentary evidence with respect to financial matters’, whereas there was both documentary and testimonial evidence, or in any event testimonial evidence, to that specific effect.
Ground 6
The learned Federal Circuit [Court] Judge erred in not finding that the decision of the [Tribunal] was vitiated by a failure to fulfil the statutory precondition under section 359A of the [Act], resulting in a failure to undertake a ‘review’, a constructive failure to exercise jurisdiction, or a denial of procedural fairness.
Particulars
6.1 Neither the Department nor the [Tribunal] provided ‘clear particulars’ in writing, or orally, of the Departmental officers’ visit to [Mr Singh’s] family home in India.
6.2 In the particular circumstances of this case, the following undisclosed information volunteered by the Departmental officers conducting the visit to [Mr Singh’s] home in India could not be clinically divorced from that information which was disclosed in purported compliance with section 57 of the [Act];
6.2.1 “In Indian context it is highly implausible that family is not aware of their daughter-in-law’s family background as marriages in India are not only a bond between the married couple but also a bond between the two families” but inviting comment only on the proposition that [Mr Singh’s] mother and brother did not identify the sponsor’s family’s names and occupations;
6.2.2 “In Indian context it is highly implausible that family is not aware of details of their child’s marriage as marriages in India are considered to be a strong bond” but inviting comment only on the proposition that [Mr Singh’s] family did not identify inter alia the date of [Mr Singh’s] marriage, the place of marriage, and the attendees;
6.2.3 “As per the local knowledge, an India [sic] family usually displays/keeps photographs of their child’s marriage and their grandchild in their homes if the relationship is genuine and ongoing” but inviting comment only on the proposition that [Mr Singh’s] mother allegedly did not have displayed photographs of the sponsor and their child;
6.2.4 “As per Indian customs, the grandparents usually give/send a lot of gifts including clothes, money, gold/silver accessory [sic] or ornaments etc. on the north of their grandchildren (especially when he is the first grandchild like in this case)” but inviting comment only on the proposition that [Mr Singh’s] mother had only sent clothes to the sponsor and no gifts to the child;
6.2.5 “As per local knowledge, parents/family in India celebrate and share their happiness (child’s marriage) with neighbours and villagers if their children’s relationships are genuine” but inviting comment only on the proposition that certain (unidentified) neighbours were unaware whether or not [Mr Singh] was married;
6.2.6 “In Indian context, siblings are like friends and usually share all the information about their siblings [sic] specially if it is relating to his/her relationship” but inviting comment only on the proposition that [Mr Singh’s] brother did not state where [Mr Singh] and his wife met (in Australia)[;]
6.2.7 “It would not be uncommon for an applicant to get into a relationship with an Australian sponsor and even go to the extent of having a child just to ensure that he/she end up getting a permanent status in Australia. In such cases, the team has noticed from previous site visit outcomes that applicant’s parents were aware of his/her relationship with the sponsor but were not aware of sponsors full name, his/her family background or his/her family composition. The team has also noted that in such cases, parents will not even have the sponsors photograph or the photograph of applicant’s the child from the marriage and not disclosing at all”;
6.2.8 “In genuine cases however the team has noted that applicant’s parents have detailed information about sponsor/sponsors family and their grandchildren. In such cases the team has also sighted photos of applicants and sponsors together and photograph of the child if there is a child from their relationship” but not disclosing at all”[.]
6.3 In the circumstances, including that [Mr Singh’s] mother flatly denied the allegations, the document should have been disclosed in its entirety, alternatively the additional particulars set out immediately above were necessary to fulfil the requirement of ‘clear particulars’[.]
6.4 In the circumstances, the [Tribunal] should have disclosed the date of the Indian site visit, and the identities of the Departmental officers[.]
6.5 To the extent that the [Tribunal] did not expressly rely on the undisclosed matters in its reasons, the [Tribunal] did in substance consider they would be part of the reason for affirming the decision under review, such that paragraph 359A(1)(a) of the [Act] was engaged.
21 A synopsis of Mr Singh’s grounds of appeal can be paraphrased conveniently by reference to the concise statement of the grounds set out at the commencement of his written outline of submissions:
(1) Ground 1 – Where a certificate under s 375A was issued but was not disclosed, was Mr Singh deprived of a realistic possibility of success?
(2) Ground 2 - Might a fair-minded and reasonably well-informed observer conclude that the Tribunal might not approach the merits of the claim with an open mind?
(3) Ground 3 - Did the Tribunal set up a false dichotomy that a marriage motivated in part to obtain the benefits of permanent residency was somehow incompatible with demonstrating an ongoing married relationship?
(4) Ground 4 - Did the Tribunal’s out-of-hand dismissal of 14 statutory declarations reveal a failure to give proper, genuine and realistic consideration to the merits of Mr Singh’s claim?
(5) Ground 5 - Was the Tribunal’s treatment of 14 declarants reasonable? Were they of ‘zero’ probative value for allegedly ‘withholding’ reference to Mr Singh’s imprisonment? What was the evidentiary foundation for the premise in any event? Was it reasonable for the Tribunal to prefer the disputed second-hand hearsay in the report (i.e. the Departmental Report) without calling for any contemporaneous notes or calling the officers? Was there a basis for the finding that the mother had ‘admitted’ that photos may not have been visible to the visiting officers? Was there really no evidence of joint liabilities or joint assets? Was it really impossible for the Tribunal to determine to what degree, if any, the parties pool their financial services?
(6) Ground 6 - Did Mr Singh receive ‘clear particulars’ of the information contained in the confidential Departmental Report? Was the undisclosed information regarded as information that would be the reason, or part of the reason, for the decision?
22 Mr Singh deposed an affidavit in support of his interlocutory application. Mr Singh’s affidavit explained a change of legal counsel and the fact that he has at all times fully relied upon his lawyers to raise all grounds of review, having no idea at all even what exactly judicial review means, though having received a broad explanation of the term. These points may be fairly readily accepted.
23 After confirming that his barrister advised that the new grounds have merit, Mr Singh deposed to an update of his current circumstances. Mr Singh has a child ‘born out of this marriage’ who is nine years old, being an Australian citizen. His sponsor has two children from her previous relationship, all of them live on Centrelink payments because his work rights have been removed after the Tribunal affirmed the delegate’s decision to refuse Mr Singh’s application. He says that if his appeal is refused he will be forced to return to India and to lodge an offshore application at considerable cost and delay. During that time he will be separated from his wife and children. He says it will be very difficult for his family to relocate to India. His wife and her two children from a previous relationship need constant medical attention which is best available here in Australia. They will not be able to receive the same care and attention in India. All his children attend school in Australia.
24 Mr Singh also deposed to the fact that the Application Book in the Federal Circuit Court proceeding was incomplete, as pages 400 to 600 were missing. He had requested in this Court a Supplementary Appeal Book be filed containing all the missing pages.
25 The interlocutory application seeking leave to rely on the Draft Amended Notice of Appeal and Supplementary Appeal Book is also supported by an affidavit which annexes a transcript of the Tribunal hearing on 19 October 2016.
26 As noted, the original Notice of Appeal raised three grounds which were not raised in the review before the primary judge. The Draft Amended Notice of Appeal amends the particulars to ground 1 and ground 2 and adds three new grounds. The Minister opposes any grounds being raised which were not raised before the Federal Circuit Court, but particularly opposes the later amendments.
27 In opposition to Mr Singh’s application for leave, the Minister observes, amongst other things:
(1) As a general rule, a party who abandons a ground below should not be allowed to resile from that position on appeal. Special circumstances should be demonstrated which justify such a course: Cooke v Repatriation Commission (1997) 45 ALD 205 per Carr J (at 234).
(2) If the appeal court is satisfied that an applicant is seeking to advance a new case on appeal, there is no residual discretion under which the appeal court may permit the new case to be run ‘in the interests of justice’: McLennan v McCallum [2010] WASCA 45 per Buss JA (with whom McLure P and Newnes JA agreed) (at [88]).
(3) An appellant requires leave to plead a ground of appeal not advanced in the FCCA: Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 per Gilmour and Mortimer JJ (at [79]). The key consideration as to whether leave to argue a ground of appeal not raised below should be granted is whether it is expedient in the interests of justice to do so: Gupta (at [81]). The Court must be satisfied that it is the case: PXYJ v Minister for Home Affairs [2018] FCAFC 193 per Barker, Banks-Smith and Colvin JJ (at [13]). The place for the determination of any jurisdictional error by the Tribunal is, in all but the most exceptional cases, in the Federal Circuit Court, not this Court: Gupta per Logan J (at [105]).
(4) This Court should not become the de facto court of original jurisdiction in place of the Federal Circuit Court: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 per Perram, Perry and O’Callaghan J (at [27]-[30]). The High Court should not be burdened by special leave applications from decisions of this Court which have not been reviewed: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J (at [30]) cited with approval by the Full Court (Siopis, Griffiths and Charlesworth JJ) in Nigam v Minister for Immigration and Border Protection (2017) 254 FCR 295 (at [33]).
(5) In determining whether it is expedient and in the interests of justice to grant leave to argue new grounds, answers to the following questions may assist:
(a) Do the new legal arguments raised in the appeal court have a reasonable prospect of success?
(b) Is there an acceptable explanation of why the new legal arguments raised in the appeal court were not raised below?
(c) How much dislocation to the appeal court and efficient use of judicial sitting time is really involved?
(d) What is at stake in the case for the appellant?
(e) Will the resolution of the new legal arguments have any importance beyond the case at hand?
(f) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?
(g) If there is prejudice as per (f), can such prejudice be justly and practicably cured?
(h) If prejudice as per (f) cannot be justly and practicably cured where, in all the circumstances, do the interests of justice lie?
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 per Madgwick J (at [166]-[175]) (which whom Conti J agreed).
(6) Some consideration must be given to the merits of the proposed new grounds. That does not ordinarily involve a full consideration thereof: see Gupta (at [85]).
(7) It is appropriate to take into account whether the appellant was legally represented in the Federal Circuit Court: Nigam (at [34]). The appeal court may take account of a lack of evidence explaining why the ground was not raised in the Federal Circuit Court: Comcare v Lilley (2013) 216 FCR 214 per Kerr, Farrell and Mortimer JJ (at [22]).
(8) Where there is no adequate explanation for the failure to take the point in the court below, and the point seems to be of doubtful merit, the appeal court should generally refuse leave: NAJT per Madgwick J (at [163] and the authority therein cited).
(9) Rarely will the Minister be able to point to any prejudice of the conventional kind. That cannot, however, be a reason to allow a party to raise issues not raised in the Federal Circuit Court: SZKMS (at [29]).
(10) If a review ground is raised for the first time on appeal and leave is given to raise the point and the ground succeeds, a consequence may be that the Minister is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: PXYJ (at [15] and the cases therein cited).
28 Further, in relation to Mr Singh’s reliance on the transcript of the Tribunal hearing, the Minister notes:
(1) If an appellant wishes to read the transcript affidavit on the appeal as well as on the interlocutory application, s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) are relevant.
(2) The discretion conferred by s 27 of the Federal Court Act is not at large, despite the absence of express limitations: SZSLF v Minister for Immigration and Border Protection [2014] FCA 64 per Robertson J (at [48]). The discretion must be exercised judicially, consistently with proper judicial process and in the interests of justice: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 per North, Barker and Katzmann JJ (at [75] and the cases therein cited).
(3) It is highly unlikely Parliament intended s 27 of the Federal Court Act to be construed in such a way as to obliterate the distinction between original and appellate jurisdiction: Kedem (at [75]). It is most material to consider whether the evidence could have been called at trial: SZSLF (at [48]) and Kedem (at [74]).
(4) One important consideration in determining whether the power in s 27 of the Federal Court Act should be exercised is whether the further evidence would have produced, or at least likely to have produced, a different result had it been available at trial: SZSLF (at [49]) and Kedem (at [76]).
29 Mr Singh concedes the original appeal grounds were not raised below.
30 The Minister contends the six particulars to draft new ground 5 are, in substance, separate grounds of appeal and that, therefore, there are really eight draft new grounds being draft grounds 4, 6 and those raised in the particulars to draft ground 5.
31 In relation to the grounds of appeal (original and draft) before this Court, the Minister does not oppose leave to add draft new ground 4 and ground 5 with particulars 5.1, 5.3, 5.4, 5.5 and 5.6, though contends they are without merit. I note the matters sought to be raised by the proposed grounds 4 and 5 of the Draft Amended Notice of Appeal in this Court reflect, somewhat, grounds 3 and 4 argued before the Federal Circuit Court. The Minister opposed leave being granted in respect of the amendments to particular 5.2 of ground 5 and ground 6 as they could not be characterised as refinements to the arguments before the Federal Circuit Court. The Minister submits:
(1) Mr Singh was represented by solicitors and counsel in the Federal Circuit Court, a factor tending against a grant of leave to argue any of the original appeal grounds: SZABS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 852 per Branson J (at [12](a)).
(2) No evidence has been placed before this Court as to why the subject matter of original appeal grounds and draft new ground 5, particular 5.2 and ground 6 was not argued in the Federal Circuit Court: SZABS (at [12](b)). The most that can be said is that Mr Singh has changed counsel (but not solicitors) and his new counsel has taken a different view: cf Nigam (at [34]).
32 The Minister’s global position is that the original appeal grounds (whether amended or not) and draft new grounds 4, 5 and 6 are in any event without merit. The Minister contends the appeal should be dismissed.
33 Consistent with the principles set out above, which are not disputed by Mr Singh, amendment will be permitted to those new grounds and sub-grounds of appeal not opposed by the Minister, but otherwise will be refused essentially on the basis that no reason has been shown why they could not have been raised in the Federal Circuit Court and, in any event as examination of these below reveals, they lack sufficient merit.
34 Mr Singh has placed most emphasis on ground 2, the apprehended bias ground. It was the ground that was the first ground argued before this Court. As he acknowledges, the principles of apprehended bias are largely settled. A decision will be vitiated for apprehended bias where a fair-minded and reasonably well-informed observer might conclude that the decision-maker might not approach the issue with an open mind. The question is ‘one of possibility (real and not remote), not probability’: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ (at [7]).
35 It is common ground that a finding of apprehended bias will not be made lightly and requires some specificity. It is to be acknowledged, importantly, that judicial decision-making is not to be automatically assimilated to administrative decision-making: Ebner (at [4]). In an administrative context, regard must be had to the statutory provisions, the nature of the enquiries to be made and the particular subject matter.
36 It is well accepted that vigorous testing of evidence and frank exposure of its weaknesses is acceptable in inquisitorial proceedings even with unrepresented parties, but there will be error if a fair-minded lay observer or properly informed lay person might infer that there is nothing a witness could say or do to change a tribunal’s preconceived view: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 per Gleeson CJ, Gaudron and Gummow JJ (at [31]-[32]).
37 The Minister emphasises, correctly, that a claim of apprehended bias must be clearly proven and firmly established. Such an allegation must not be too readily upheld: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 per Robertson J (at [22], [33]-[34]). In this regard, the Minister correctly emphasises that the whole of the Tribunal’s transcript, which is relied upon by Mr Singh in support of this ground, must be reviewed rather than sentences taken in isolation. It is to be considered on the basis that the Tribunal member had read the documentary and other materials already submitted. It may be appropriate to listen to the transcript: see, for example, Klychev v Minister for Immigration and Border Protection [2016] FCA 1356 per Katzmann J (at [67]).
38 Mr Singh puts his case on this point on the basis that a central conclusion by the Tribunal on review was that:
[T]he Tribunal considers [Mr Singh’s] mother’s statement during the Departmental interview in 2015 that [Mr Singh] married the sponsor in order to obtain permanent residency in Australia indicates [Mr Singh’s] motives for marriage were not honourable.
39 That statement was attributed to Mr Singh’s mother by a Departmental officers who had visited Mr Singh’s mother in India. They reported in the Departmental Report, not provided to Mr Singh, but purportedly summarised to one page in the Departmental Letter in purported compliance with s 57 of the Act. In the Departmental Report it was reported that his mother had said Mr Singh ‘went to Australia for studies however he left his studies and got married to [the sponsor] in between to get permanent residency in Australia’.
40 During the Tribunal hearing, Mr Singh’s mother gave evidence by phone from India. During the course of that evidence, the following exchange occurred:
Member: Alright. The [Department] also talks about you saying that your son married this lady in order to get residence in Australia. What do you think about that?
[Mother]: I didn’t say anything like that. Why would I say anything like that? We see [Mr Singh’s wife] just like our own child and [Mr Singh] and [Mr Singh’s wife] are happy together.
Member: Well, you say that but where I’m sitting it seems to extraordinary that people would make that up you know. I find that unacceptable to tell me that the [Department] is lying.
[Mother]: I never said that [Mr Singh] married to gain permanent residency.
(Emphasis added.)
41 The Tribunal is recorded as having continued by asking whether there was anything else Mr Singh’s mother would like to tell the Tribunal about the relationship between Mr Singh and his wife. Mr Singh contends this question is demonstrative of disinterest.
42 The Tribunal records in its reasons (at [86]):
The Tribunal asked [Mr Singh’s mother] why her son married the sponsor. She responded that was because they loved each other. She regards the sponsor as her child and loves her very much. The Tribunal referred [Mr Singh’s mother] to the part of the delegate’s decision that states she said [Mr Singh] married the sponsor to obtain permanent residency in Australia. She denied making that statement. The Tribunal put to her that it was not acceptable to state that the Department’s record was untrue. She repeated that she never said her son married the sponsor to obtain permanent residency.
43 Counsel for Mr Singh asks rhetorically:
If it was unacceptable for Mr Singh’s mother to state that the Department’s (undisclosed) second-hand hearsay report was untrue, then why bother asking the witness? Why have a hearing at all?
Counsel asserts the Tribunal went too far. A fair-minded lay observer might conclude, on this basis alone, that there was nothing Mr Singh’s mother could say or do to change the Tribunal’s preconceived view.
44 Counsel also emphasises that the Tribunal’s reasons record it as having ‘warned’ Mr Singh ‘not to make unfounded allegations with respect to officers of the Department’ (at [79]). By particular 2.4, the appellant contends that these series of observations in the Tribunal’s decision, individually or cumulatively, are such that a fair-minded observer might reasonably apprehend the absence of an impartial mind.
45 The transcript discloses the exchange between the Tribunal and Mr Singh in respect of his response to the Departmental Report where it was recorded that his mother had said he had married his sponsor for the reason of obtaining permanent residency:
Member: Yes please. And your mother is reported as saying that you entered into the relationship with your wife for the reason of obtaining permanent residence in Australia.
[Mr Singh]: Yes.
Member: Did you understand that?
[Mr Singh]: Yes.
Member: So what’s your response to that statement in the department’s decision?
[Mr Singh]: Well, my mum she didn’t say anything like that. Why would anyone’s mum will say that to an immigration person - yes, my son or daughter is married to this man or woman just to get into the country or whatever? And I was still studying when I met my wife.
Member: Well I would say back to you that it’s a very unusual thing to say. That’s why I’m raising it.
[Mr Singh]: Because it’s all corruption in India and because they couldn’t get money from my mum because my mum was a sick lady and didn’t have anything to give to them and they just wrote whatever they have to write.
Member: Well, I think that’s a very dangerous thing to say about Australian government officials in India.
[Mr Singh]: Yeah of course you are just a little bit with them because (inaudible) after this we’re gonna make a big complaint. If you can’t think this is a real relationship, there must be something wrong then. I don’t know what a real relationship’s going to be.
Member: And what’s your big complaint?
[Mr Singh]: That they didn’t know what to say, they didn’t take any photos, they said there is no photos of me or my wife at home with the kids. Where as there’s all the photos on the walls and you can say later next to you he can explain it to them. And they say oh we went to the neighbour’s house and they don’t that know we were married. Because we didn’t get married in India. We just got married in Australia. First of all and they had a big concerned that in India, marriages are biggest things. Now if you go to India there is the people that don’t even know you got married or you just living by yourself. It’s that changed. It’s not now, it’s a couple of years ago.
(Emphasis added.)
46 It would seem this statement by the Tribunal during the hearing was what was described as a ‘warning’ in the Tribunal’s reasons.
47 Counsel for Mr Singh submits that the Tribunal had a fact finding role, no other purpose. There is no warrant for the Tribunal to ‘warn’ witnesses about evidence which displeases it. It is submitted that while the Tribunal is free to reject, criticise and analyse evidence, the Tribunal went too far in purporting to ‘warn’ Mr Singh against an answer to a question which the Tribunal itself had put to him and a question which permitted only acceptance or rejection (as a fabricated account).
48 Complaint is also raised about the Tribunal’s conclusion in its decision that Mr Singh’s ‘motives for marriage were not honourable’ and the basis on which that conclusion was reached. Counsel for Mr Singh submits that this was not the real issue. The comment was gratuitous, it lacked conceptual precision and it was fallaciously ad hominem. In itself, it is argued to be a statement that is capable of causing doubt in the mind of a fair-minded lay observer about the objectivity of the Tribunal.
49 In relation to the apprehension of bias, further complaint is also made on behalf of Mr Singh in relation to his ‘extraneous’ child sexual charges. The Tribunal had material which was not disclosed to Mr Singh. In purported compliance with s 375A of the Act, a certificate had been issued. The certificate invoked ‘internal methodology and procedures’ as the basis for the ‘public interest’ prescribed in s 375A(1)(a) of the Act. That material included an internal Departmental email referring Mr Singh, inferentially, for a character assessment to the National Character Consideration Centre (the NCCC), being the ‘National Character Consideration Centre’, stating little more than that he had been sentenced to two years and nine months imprisonment for encouraging a child under 13 years of age to engage in sexual behaviour.
50 Presumably also before the Tribunal was the National Police Certificate disclosing two offences entitled ‘Procured or Encouraged a Child to Engage in Sexual Behaviour’ for which Mr Singh was sentenced to two years and nine months imprisonment in the District Court and a related offence of ‘Encourages a Child Over 13 and Under 16 to Engage in Sexual Behaviour’ for which he was sentenced to two years and three months imprisonment (to be served concurrently). There was also a file note of Mr Singh’s presentencing account to the Department and Mr Singh’s three page written account, which in part appeared to blame the complainants.
51 The materials were collected for and relevant to the exercise of the Department’s discretion as to whether to cancel Mr Singh’s existing visa on ‘character grounds’. However, Mr Singh contends that the documents or the ‘information’ highlighted were not relevant to the issue in the review. They were objectively irrelevant. The real issue in the review was whether Mr Singh and his wife were in a ‘married relationship’ within the meaning of s 5F(2) of the Act. Further, the materials are said to be neither probative of credibility, nor did the email the subject of the s 375A certificate disclose any ‘internal methodology and procedures’. The time spent in prison was collaterally relevant to the determination of the real issue, but the Department’s file note was sufficient for that purpose.
52 For Mr Singh, it is argued that this material is both ‘extraneous’ and ‘prejudicial’. Unlike in CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87, the child sexual assault material was not before the Tribunal in any event by reason of self-disclosure in Mr Singh’s visa application because his charges and convictions occurred after the visa application was made. The lay observer would be imputed with knowledge of s 352(4) of the Act, requiring the Secretary to furnish material to the Tribunal upon notification of an application for review, and infer the Secretary thought it relevant to the review and the Tribunal would not have ignored it and, indeed, given it weight. Such an observer might apprehend, shortly after receipt of the materials, that the Tribunal would have fixed Mr Singh with the characteristics of a child sex predator, which was capable of influencing the Tribunal in its determination of the ultimate question (whether he ought to be granted a visa) and in its assessment of his credibility, but also in its determination of whether he was a desirable person to be in loco parentis to his child and two stepchildren.
53 There was no ground asserted before the primary judge of apprehended bias. Some of the material has only become known, at least to Mr Singh’s legal advisors, since obtaining the transcript.
54 It is important to note from the outset that a reasonable apprehension of bias does not arise on the basis of mere fanciful claims. Rather the allegation must be ‘firmly established’, it should not be a conclusion reached lightly: see, for example, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Kirby J (at [135]).
55 The Police Certificate is raised in relation to ground 1, but also raised in support of ground 2. In relation to the Police Certificate, insofar as bias is concerned, the Minister makes the point that the information concerning criminal matters in the email was, in any event, before the Tribunal. The Police Certificate was before the Tribunal and Mr Singh himself had also provided information about those matters to the Department for the purposes of the permanent visa application. Dealing purely with the bias question, it is difficult to see that the matter referable to the Police Certificate, taken alone, could give rise to apprehended bias.
56 Dealing with ground 2, particulars 2.1 to 2.4, the Minister submits, correctly, that firmly stated conclusions are not sufficient to establish bias: SZUMX v Minister for Immigration and Border Protection [2016] FCA 1021 per White J (at [17]). Indeed, vigorous questioning may be permitted. If material lacks credibility or coherence, the Tribunal may feel bound to point that out: SZRUI per Allsop CJ (at [4]).
57 The Minister stresses that even if the Tribunal’s transcript gives rise to impressions of impatience and irritation, justified or otherwise, this will not be sufficient to amount to disqualifying bias: SZRUI per Flick J (at [31]-[32]) and per Robertson J (at [100]).
58 I have read the entire transcript of the hearing. My impression is that Mr Singh himself was at times impatient and/or disrespectful (see, for example, at 28). I think the Tribunal’s reaction was reasonably mild.
59 The exchange between the Tribunal member and Mr Singh about his mother’s evidence has been set out. The Tribunal member asked Mr Singh what his response was to the statement in the Department’s decision to the effect that his mother had said that Mr Singh entered into the relationship with his wife for the reason of obtaining permanent residency in Australia. Mr Singh’s response was that his mother did not say anything like that:
[Mr Singh]: Why would anyone’s mum will say that to an immigration person – yes, my son or daughter is married to this man or woman just to get into the country or whatever? And I was still studying when I met my wife’.
Member: Well I would say back to you that it’s a very unusual thing to say. That’s why I’m raising it.
[Mr Singh]: Because it’s all corruption in India and because they couldn’t get money from my mum because my mum was a sick lady and didn’t have anything to give to them and they just wrote whatever they have to write.
Member: Well, I think that’s a very dangerous thing to say about Australian government officials in India.
[Mr Singh]: Yeah of course you are just a little bit with them because (inaudible) after this we’re gonna make a big complaint. If you can’t think this is a real relationship, there must be something wrong then. I don’t know what a real relationship’s going to be.
Member: And what’s your big complaint?
[Mr Singh]: That they didn’t know what to say, they didn’t take any photos, they said there is no photos of me or my wife at home with the kids. Where as there’s all the photos on the walls and you can say later next to you he can explain it to them. And they say oh we went to the neighbour’s house and they don’t that know we were married. Because we didn’t get married in India. We just got married in Australia. First of all and they had a big concerned that in India, marriages are biggest things. Now if you go to India there is the people that don’t even know you got married or you just living by yourself. It’s that changed. It’s not now, it’s a couple of years ago.
(Errors in the original.)
60 The exchange between the Tribunal and Mr Singh’s mother is recorded in the transcript (at 36) where she denies saying that her son, Mr Singh, married to gain permanent residency.
61 There were other moments of tension in the hearing (see, for example, at 43), but by and large it seemed to follow a fairly calm pattern. The arguments for Mr Singh have drawn attention to the passages where there was a heightened tension (at 62):
[Mr Singh]: Yeah, no worries. Take your time. And I want to ask you one thing, the question you asked my mother in law that how long have you been separated with my father in law – that was totally inappropriate. I don’t think that has anything to do with this case, you know what I mean?
Member: Well I was asking her that because your wife had mentioned it you see. So just seeing …
[Mr Singh]: But you cannot bring that kind of stuff because she already told you that she’s not with her father and then you asking this poor lady how long she’s been separated for.
Member: Thank you for your attendance. Good afternoon Mr Singh.
[Mr Singh]: Thank you
Member: Thank you Mr interpreter.
[Mr Singh]: Its just like me telling someone like you how long you’ve … I don’t know what happened in their life because they were separated even before I got in with her and if I go and ask someone how long have you been separated with your husband … but from my point of view its rude.
Member: Well look. My job is to test the credibility of witnesses …
[Mr Singh]: Well, its totally irrelevant to this case. You should have asked about me and our relationship or me and her relationship, or me and my father in law’s relationship. Not between my mother in law and father in law’s relationship.
Member: Well as I said, trying to test the credibility of the witnesses.
[Mr Singh]: What if I ask you what about your relationship with someone you’ve separated with 7, 9, 10 years ago, you know what I mean? Just in future, don’t ask especially the lady – she’s from another country I don’t know how I gonna … don’t worry about it actually.
Member: Thank you Mr Singh
[Mr Singh]: Is that it?
62 This passage illustrates some of Mr Singh’s frustration and unwise criticism of the Tribunal member’s inquiry.
63 On a reading of the transcript most of the heat in the exchanges was generated from Mr Singh, rather than from the Tribunal member.
64 Having regard to the legal principles set out above and the content of the transcript itself, particularly read as a whole, there is insufficient to lead to a conclusion of a reasonable apprehension of bias.
65 Turning to the particulars, again it is necessary to emphasise the need to read the reasons as a whole, rather than just the particular paragraphs selected and said to illustrate a reasonable apprehension of bias. The first reads as follows (at [86], though the particulars refer to [87]):
The Tribunal asked [Mr Singh’s mother] why her son married the sponsor. She responded that was because they loved each other. She regards the sponsor as her child and loves her very much. The Tribunal referred [Mr Singh’s mother] to the part of the delegate’s decision that states she said [Mr Singh] married the sponsor to obtain permanent residency in Australia. She denied making that statement. The Tribunal put to her that it was not acceptable to state that the Department’s record was untrue. She repeated that she never said her son married the sponsor to obtain permanent residency.
(Emphasis added.)
66 The advice about ‘acceptability’ (in [86] is similar in nature to the ‘warning’ (referred to at [79] and discussed below). The Tribunal was perhaps ill-advised to say that it was unacceptable to state that the Department’s record was untrue. There is nothing to preclude an applicant making such a contention. The contention may well be tested by the Tribunal. But that does not mean it is unacceptable to make the contention. The Tribunal’s response was tantamount to saying ‘you cannot give that evidence’ or ‘you cannot make that submission. Neither statement would be correct.
67 As to particular 2.2, this refers to the following paragraph of the Tribunal’s reasons (at [79]):
[Mr Singh] said that the untrue report about the home visit to his mother indicated “corruption” in the Department. The Tribunal warned [Mr Singh] not to make unfounded allegations with respect to officers of the Department.
68 I also accept that technically speaking it is not the Tribunal’s function to issue warnings to applicants or witnesses. It may be that Mr Singh believed that the rejection of his mother’s account or the report of his mother’s account by the Department was quite unfair. It may even be that he believed that corruption was involved. Such a belief certainly did not have to be accepted by the Tribunal member. The Tribunal was in the best position to form a view as to whether Mr Singh was making unfounded provocative allegations of a substantial nature or not. But, as with particular 2.1, it is doubtful whether a ‘warning’ as distinct from testing an assertion (as the Tribunal did) has any place with the Tribunal’s functions.
69 As the Minister identifies, the corruption which was referred to by Mr Singh in response to the Tribunal member’s questioning was not corruption in India, but alleged corruption of Department representatives. In my view, it was not inappropriate for the Tribunal member to express dissatisfaction with accusations against government representatives of corruption, including attempted bribery. Whether or not it was the Tribunal’s role to warn Mr Singh or his mother in relation to such matters is peripheral. It could not be said that its response was disproportionate.
70 The next complaint, identified at particular 2.3, related to the Tribunal’s conclusion (at [104]), which was in these terms:
For the reasons given above, the Tribunal considers [Mr Singh’s] mother’s statement during a Departmental interview in 2015 that [Mr Singh] married the sponsor in order to obtain permanent residency in Australia indicates [Mr Singh’s] motives for marriage were not honourable.
(Emphasis added.)
71 Clearly, the Tribunal member rejected the evidence of Mr Singh and of his mother, preferring the evidence of the Departmental officers. Whether it was necessary to describe Mr Singh’s motives in marrying his sponsor as being ‘not honourable’ is perhaps less clear. In the context of the matters which the Tribunal was investigating, it is clear by the use of those terms that the Tribunal member was indicating a conclusion that Mr Singh’s marriage was motivated by reasons other than a wish to embark upon a genuine marriage in the statutory sense. I do not see a particular difficulty in using the expression used by the Tribunal member, although it is perhaps a little more loaded with an assessment of morality or decency which the statute does not directly call for and is perhaps unnecessary. But it must be remembered that the Tribunal, when dealing with migration matters, has a challenging task in completing their substantial business. Infelicity in choice of a word on occasions is not sufficient to establish material jurisdictional error. The Tribunal, after all, could be understood to have formed an adverse view about Mr Singh, following some of the exchanges.
72 Proposed additional particular 2.4.1 and particular 2.4.2 have been set out above. The first relates to the s 375A certificate and the email referencing Mr Singh’s conviction for ‘encouraging a child under 13 years of age to engage in sexual behaviour’ and sentence of ‘two years and nine months’. The second suggests distortion of the evidence concerning the display of photographs by Mr Singh’s mother. This particular has not been addressed in written submissions nor in oral submissions in respect of this ground, though the evidence pertaining to those photographs is discussed below in relation to other grounds.
73 The relevant passage concerning the display of photographs in Mr Singh’s mother’s home is [85] of the Tribunal’s reasons. I find no difficulty in the analysis or logic in this statement, let alone a distortion of the evidence that would give rise to a reasonable apprehension of bias. The statement ‘maybe photos were lying around and they did not see them’ is consistent with the fact that they ‘may not have been visible to the officers’.
74 To reiterate, I do not consider ground 2, as stated in the Notice of Appeal, has been made out. Some of the criticisms advanced now for Mr Singh have some merit, as I have acknowledged, but taking the entirety of the transcript as a whole and the entirety of the Tribunal’s reasons, in my view, the serious allegation of reasonable apprehension of bias cannot be made out. As to the additional particulars sought to be relied upon by the Draft Amended Notice of Appeal, I do not consider them arguable and leave is refused to rely upon them.
75 Ground 1 raises a question of materiality within the meaning of Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252. That decision pertains to Pt 7AA of the Act. There it was held by the plurality (Bell, Gagelar and Keane JJ) that breach of an obligation of procedural fairness will constitute jurisdictional error where it is material. Jurisdictional error is made out if an appellant is denied an opportunity to make arguments or give evidence depriving him or her of the possibility of a successful outcome.
76 Mr Singh says he could have challenged the validity of the s 375A certificate on the basis that the child sexual assault material was irrelevant to the question of whether Mr Singh and his wife were in a ‘married relationship’ within the meaning of s 5F(2) and not probative of his credit. The notification was defective at least in part because the email the subject of the s 375A certificate did not actually disclose any ‘internal methodology and procedures’. Mr Singh could have made submissions to request a favourable exercise of the discretion ‘under s 377(3)(b) of the Act’. Further, he argues that the disclosure of the s 375A certificate would also put him on notice that all of the material provided to the Department at its request by Mr Singh for the purpose of the Department exercising its discretion regarding his visa cancellation had also been provided to the Tribunal. I note that s 377(3)(b) of the Act was repealed in July 2015 prior to the Tribunal hearing.
77 Mr Singh argues that it can be inferred the Tribunal did have regard to the child sex material. The email containing the description of the charge was sent on 7 February 2013. The Departmental procedure described in an email dated July 2013 from NCCC invites the inference that the 7 February 2013 email must have been sent when Mr Singh was first imprisoned. The transcript discloses an exchange in these terms:
Member: Ok. Now it appears from the [Department’s] decisions that you were jailed in Western Australia at some time.
[Mr Singh]: Yes.
Member: I think from the file I can see that that started in February 2013.
78 On the other hand, Mr Singh complains that the delegate’s decision of 5 November 2015 makes no mention at all of his imprisonment. The only mention amongst the materials before the Tribunal relating to the commencement date of the prison term is said to be the email of 7 February 2013 concerning referral to NCCC. It is to be noted that the delegate’s decision, under the heading ‘Financial Aspects’, refers to ‘a receipt issued by the Department of Corrective Services for money received from [Mr Singh’s] sponsor debited to [Mr Singh’s] prison account’, so while the delegate’s decision does not note the date of the commencement of the imprisonment, the fact of his imprisonment is alluded to.
79 The email is in the following terms:
From: …
Sent: Thursday, 7 February 2013 12:04PM
To: NCCC
Cc: …@police.wa.gov.au; …
Subject: WA referral – child sex offender [SEC=UNCLASSIFIED]
…
FYI
Client for referral to NCCC and SOMS (Attention …)
Client [Mr Singh] …
CID …
Charges Encouraging a child under 13 years of age to engage in sexual behaviour
Sentence 2 Years and 9 Months
Location Hakea Prison, WA
Happy to discuss.
…
Compliance Field Officer
Department of Immigration and Citizenship
…
80 Mr Singh argues that had he known that the Tribunal had received this material, he could have challenged it. Alternatively, he could have asked that the Tribunal member disqualify herself. Further, he could have attempted to address or neutralise the material or advance submissions about its use. He argues that procedural fairness ordinarily requires an opportunity to tailor the presentation of evidence and making of submissions to the procedure to be adopted by the decision-maker, or being apprised of an event which results in an alteration of the procedural context, relying on SZMTA (at [29]).
Consideration
81 The s 375A certificate is in these terms:
…
CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER s 375A OF THE MIGRATION ACT 1958
I certify that, in accordance with s 375A of the [Act], the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s 96, 97, 103, 104, 134 and 145 of file number CLF2009/134591 would be contrary to the public interest because:
(a) folio 96, 97, 103, 104, 134 and 145 contains internal methodology and procedures
As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the [Act].
…
82 The certificate was tendered in the Federal Circuit Court. This ground was not raised by Mr Singh as a ground of review in the Federal Circuit Court. It was in fact the Minister who drew the existence of the certificate to the Court’s attention and the relevant case law.
83 As originally drawn, this ground complained that the Tribunal’s decision was vitiated because the non-disclosure of the certificate was procedurally unfair. It has never been asserted that the content of the email was incorrect. The Minister contends the information the subject of the certificate was irrelevant to whether Mr Singh was entitled to a partner residence visa and, as such, that Mr Singh suffered no practical injustice in the sense discussed in Minister for Immigration and Border Protection v BJN16 (2017) 253 FCR 21 per Kenny, Tracey and Griffiths JJ (at [73]-[75]). A legal error that is not material is not a jurisdictional error in the sense discussed in SZMTA (at [45]). Breach of an inviolable limitation governing the conduct of the review is material to a decision only if compliance could realistically have resulted in a different decision: see SZMTA (at [45]). The onus is on the judicial review applicant to prove that jurisdictional error occurred. Where materiality is put in issue (as it is here) in an application for judicial review of Tribunal decision, it is a question of fact in respect of which the applicant bears the onus. Materiality is an ordinary question of fact and, like any ordinary question of fact, is to be determined by inferences to be drawn from evidence adduced on the application.
84 The primary difficulty in this case is that the information concerning criminal matters in the email referred to in particular 1.2.1 was, in any event, before the Tribunal. The Police Certificate dated 17 April 2013 recorded the two convictions on 4 February 2013 in the District Court, to which reference has already been made, and the conviction on 29 May 2012 in the Magistrates Court for assault occasioning bodily harm, for which Mr Singh was fined $1500.
85 Moreover, Mr Singh actually provided information about those matters to the Department for the purposes of obtaining a permanent partner visa. In those circumstances, it is simply not possible to say that, even if Mr Singh had been given prior notice of the particular email, the outcome would have been any different: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 per Allsop CJ, Markovic and Steward JJ (at [35]-[37]). In those circumstances, materiality cannot be established. There can be no distinction between the prejudice said to have been suffered by non-disclosure of the content of the email on the one hand, compared with the information provided by Mr Singh on the other. This ground of appeal, as amended or otherwise, must fail.
86 Ground 3 suggests that the Tribunal allowed itself to be distracted from the real issue by setting out the false dichotomy between marriage for ‘honourable motives’ on the one hand, and a ‘married relationship’ within the meaning of s 5F(2) of the Act.
87 Mr Singh argues that the dichotomy set up by the Tribunal is false. It would not be inconsistent with the statutory definition of ‘married relationship’ if two persons were to marry in order to secure for one of them Australian permanent residency. Indeed, that circumstance, it is argued, is commonplace.
88 Nonetheless, a marriage bearing that quality could nevertheless be valid for the purpose of the Act. The couple could still have a ‘mutual commitment to a shared life as a married couple to the exclusion of all others’ for the purposes of s 5F(2)(b) of the Act. The relationship could be ‘genuine and continuing’ for the purposes of s 5F(2)(c) of the Act and the couple could ‘live together’ for the purpose of s 5F(2)(d)(i) or, alternatively, ‘not live separately and apart on a permanent basis’ for the purpose of s 5F(2)(d)(ii) of the Act.
89 Particular focus is placed again on the Tribunal’s conclusion (at [104]), which for convenience is set out again:
For the reasons given above, the Tribunal considers [Mr Singh’s] mother’s statement during a Departmental interview in 2015 that [Mr Singh] married the sponsor in order to obtain permanent residency in Australia indicates [Mr Singh’s] motives for marriage were not honourable.
90 Mr Singh says this finding is not ‘mere scenery’. Of the 114 paragraphs comprising its reasons, the Tribunal compressed its conclusions into ten mostly single sentence paragraphs. Foremost is the impugned paragraph (at [104]). This is not merely an evidentiary finding Mr Singh says.
91 Mr Singh stresses the fact that the marriage, whatever the motive for it, took place in October 2008, about a decade before the Tribunal’s decision in February 2017. He says that, in those circumstances, it is difficult to understand the significance attributed by the Tribunal to the original intentions of entry into the marriage.
Consideration
92 In my respectful view, this is not a fair assessment of the approach taken by the Tribunal as reflected either in the transcript of the hearing or in the reasons. There is no doubt from the transcript of the hearing that detailed attention was given to the statutory elements of the definition of s 5F of the Act. The evidence of the original intentions was capable of being relevant, but it was only one aspect.
93 Section 65 of the Act requires satisfaction by the Minister or his or her delegate that, materially, the criteria prescribed by the Act or Migration Regulations for a particular visa has been satisfied. The satisfaction is the jurisdictional factor on which the statutory obligation to grant or refuse the visa turns: Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 per Logan J (at [3]). The legislation was attached to the delegate’s decision.
94 The ultimate determination of whether or not a couple is in a genuine de facto relationship depends upon the ‘satisfaction’ of the Tribunal. It is the task of the Tribunal, and not for the Court in undertaking judicial review, to consider and evaluate all the relevant circumstances of the relationship within the framework of the legislative criteria: Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 per Kenny and Griffiths JJ (at [68]).
95 It is clear that the Tribunal member in her questioning was focussing on Mr Singh and his sponsor’s mutual commitment to a shared life to the exclusion of all others. As noted in Angkawijaya (at [64]), there is no reason why the motivation of one or both of the parties for entry into the relationship could not be taken into account as long as all the other relevant circumstances were also included. The fact that the Tribunal member had the relevant time, being the date of the decision, firmly in mind is made clear and is best demonstrated by the subsequent observations by the Tribunal (at [110]) which followed the impugned paragraph (at [104]):
For the reasons given above, in relation to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties commitment to each other, the Tribunal is not satisfied that at time of decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship is genuine and continuing; or that they live together or do not live separately and apart on a permanent basis. The Tribunal is therefore not satisfied that [Mr Singh] is the spouse of the sponsor at the time of decision.
(Emphasis added.)
96 This ground cannot be made out.
97 The Minister does not oppose this new ground being raised, but contends it has no merit.
98 The thrust of Mr Singh’s complaint is relation to ground 4 is that the Tribunal failed to give proper, genuine and realistic consideration to the merits of his case by a meaningful, intellectual engagement with the evidence contained in statutory declarations to the effect that the relationship he and his wife enjoyed was genuine and ongoing.
99 The Tribunal acknowledged that 14 statutory declarations had been submitted, but gave them no weight. The reason for this was recorded as follows (at [73]-[76]):
73. The Tribunal acknowledges that fourteen statutory declarations have been submitted at review. The declarations state that the parties have been known to the declarants for years, generally four to five years, some longer. The statutory declarations are mostly very brief. Most of the declarations declare that the declarants have contact with the couple on a regular basis, mostly weekly or more, and that the relationship is “a true relationship” or “a genuine relationship” without stating reasons for having that opinion. There is one exception, the statutory declaration from [NG], who has provided some reasons for her opinion that the relationship is “extremely true” (Tribunal file, folio 83).
74. Because some of the declarations were silent on the issue, the Tribunal asked [Mr Singh] about the regularity of contact with the declarants of the fourteen declarations. In relation to most of the declarants he said he and the sponsor see them at least weekly. They see most of [JC] who is a very old friend of the sponsor’s and has 3 children.
75. The Tribunal put it to [Mr Singh] that all of the fourteen declarants fail to mention that he was incarcerated for 2.5 years. In response, he said he was released 16 months ago.
76. The Tribunal considers it is not plausible that the declarants would have spent time with the couple at their home during the 2.5 years [Mr Singh] was incarcerated. The Tribunal considers that by withholding the information that [Mr Singh] was incarcerated for 2.5 years of the period they have known the parties, the authenticity of the declarations is therefore significantly reduced. The Tribunal therefore gives the fourteen statutory declarations no weight.
(Emphasis added.)
100 A similar ground was raised before the primary judge. After setting out the above paragraphs, his Honour observed (at [51]-[57]):
51. In effect, what the Tribunal does here is determine that it cannot attach weight to the 14 statutory declarations because they lack probative value. There is arguably something in those statutory declarations that said to the Tribunal that credibility was lacking and that weight should not be attached to them. That was an approach that was open to the Tribunal. There is nothing unreasonable in that approach. Given what the statutory declarations in question did not disclose, the decision to reject them was a decision that was entirely open to the Tribunal.
52. It cannot be said here that the decision to reject these declarations was lacking common sense, arbitrary or capricious. The decision to do so was one that was open to the Tribunal. The Tribunal weighed up all of the evidence that it had before it, determined what was credible, and ultimately excluded some evidence because it determined that it could not attach any weight to that evidence. No error can be said to have occurred as a result of the approach taken here.
53. At the hearing of this matter, the Court noted that, in addition to the 14 statutory declarations referenced by the applicant in his grounds of review, five other statutory declarations appeared in the Court Book. These five declarations were not specifically referred to by the Tribunal. The applicant seemed to suggest that the Court failed to consider this otherwise relevant material because the Tribunal did not specifically exclude them and reference them (as it had with 14 other witness statements).
54. It is noted that these five witness statements predate the prison term discussed by the Tribunal in its decision at paragraph 76. That prison sentence is central to the Tribunal’s decision to exclude the 14 witness statements.
55. The Court finds no error on the part of the Tribunal for failing to specifically reference the five witness statements in question. The Tribunal specifically notes that it reviewed the delegate’s decision record. That evidence included these five statutory declarations. The Tribunal is entitled to review, as it did here, this evidence as it sees fit and throw all of it “into the mix”, as it were, in determining whether a spousal relationship exists. The fact that the Tribunal did not specifically reference each piece of evidence before it in detail does not mean that it engaged in jurisdictional error: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 (per McHugh J at [65]).
56. The Court has heard nothing to convince it that relevant material was ignored.
57. For the reasons articulated above, this ground of review does not reveal any jurisdictional error by the Tribunal. It is, accordingly, dismissed.
101 I note for completeness the reference to the additional five statutory declarations in the Court Book. These were raised at ground 4.1 of the Draft Amended Notice of Appeal, however, as already identified, this was expressly abandoned. I will focus, as the parties’ submissions did, on the Tribunal’s treatment of the 14 statutory declarations.
102 As Mr Singh notes, all 14 of these statutory declarations were made in late 2016. Mr Singh was released from prison some 16 months earlier. It must be said that these statutory declarations were, as the Tribunal observed, not particularly fulsome. Nevertheless, the detail can be summarised as follows:
(1) Ms JC declared on 10 October 2016 that she had known Mr Singh’s wife for 29 years and that she and the members of Mr Singh’s family ‘visit each other on a daily basis’. Mr Singh’s oral evidence was that ‘we go there [the … house] more often than anyone else and she comes over as well’.
(2) Ms AC, JC’s mother, similarly declared on 10 October 2016 that she had known Mr Singh’s wife since 1986, and Mr Singh for about 7 years, and that Mr Singh ‘comes over with [Mr Singh’s wife] whenever she comes and visits’.
(3) Mr H declared on 10 October 2016 that he had known Mr Singh and his wife for eight years and saw them ‘often’ but did not describe frequency of any visits.
(4) Ms G declared on 8 October 2016, in a comparatively more detailed way, that she has known Mr Singh and his wife for 4.5 years and saw them two or three times per week. She invited the Tribunal to telephone her.
(5) Mr M declared in an undated statement that he had known Mr Singh and his wife for four or five years and that they ‘see a lot of each other on a regular basis’.
(6) Mr I declared in an undated statement that he had known Mr Singh’s wife for over 16 years, but did not claim to visit.
(7) Ms W declared on 7 October 2016 that she had known Mr Singh’s wife since high school and that she visited Mr Singh and his wife ‘on a weekly basis’.
(8) Mr S declared in an undated statement that he had known Mr Singh and his wife for five years, but did not describe any visits.
(9) Mr W declared on 7 October 2016 that he had known Mr Singh and his wife for eight years, but did not describe any visits. He provided a telephone number.
(10) Ms F declared on 8 October 2016 that she had known Mr Singh and his wife for four years, but did not describe any visits.
(11) Mr R declared on 8 October 2016 that he had known Mr Singh for eight years and his wife for nine or 10 years and that he ‘sees there [sic] family regularly’. Mr Singh’s oral evidence was that ‘[Mr R] – we see him when we go there but he doesn’t come around much’.
(12) Mr D declared on 8 October 2016 that he had known Mr Singh for 2.5 years, but did not describe any visits.
(13) Mr F and Mr TC jointly declared (albeit in the singular) on 20 October 2016 that they have known Mr Singh’s wife since she was three years old and Mr Singh for seven or eight years and that ‘I see them regularly’.
(14) Ms Wo declared on 10 October 2016 that he had known Mr Singh’s wife for three years and that he ‘knows’ Mr Singh, and that ‘I visit their home on a weekly basis’.
103 The main point of concern for Mr Singh is the ‘obscure’ nature of the logic contained in the Tribunal’s reasons (at [76], set out above at [99]).
104 The point that Mr Singh makes is that no declarant actually makes the claim that he or she spent time with the couple at their home during the 2.5 years Mr Singh was incarcerated. A number of the declarants do not describe having ever visited the home at all (Mr D, Ms F, Mr I, Mr S, and Mr W). Similarly, Ms AC declares that Mr Singh ‘comes over with … whenever she comes and visits’. The declarants, Mr F, Mr H, Mr M, Mr R and Mr TC, are entirely silent about the location of their regular meetings. The evidence as to Mr R was that Mr Singh visited him at Mr R’s house.
105 For Mr Singh it is noted that the Tribunal also accuses each declarant of ‘withholding’ the fact that Mr Singh had been in prison. This proceeds from a premise that each declarant knew that fact. There is no declarant describing the frequency of visits who states when the visits commenced. Ms JC said she has known Mr Singh’s wife for 29 years and ‘we visit each other daily’. The ‘we’ Ms JC refers to is a touch ambiguous, but it cannot readily be concluded to refer to Mr Singh over Mr Singh’s wife or their family in the collective. In the case of Ms AC (related to JC), she declares that Mr Singh only came over when, and if, his wife visited. There was no evidence to found the factual premise that each and every declarant knew, thus withheld, evidence. In any event, the non-reference to the fact that Mr Singh had been in prison does not mean that the value of their opinions and observations as to Mr Singh’s marital relationship ought be reduced to nil.
106 Mr Singh complains that the Tribunal, in substance, has assimilated all 14 statutory declarations as if they were each of identical content and probative value. It is true that they are brief, at least from the perspective of professional litigators and decision-makers, but they were by no means identical. All appeared to be in their own handwriting. Nor were they of identical probative value. They could not all be dismissed out of hand as inauthentic. The Tribunal was required to consider each of them in the course of giving proper, genuine and realistic consideration to the merits of Mr Singh’s claim. It did not do so.
Consideration
107 In BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6, the Full Court (Griffiths, Gleeson and Colvin JJ) said (at [59]):
Some cases have referred to a failure by the Tribunal to give proper, genuine and realistic consideration to the evidence advanced to support a protection claim as constituting jurisdictional error. However, a formulation of that kind is best avoided because it tends to distract from the proper inquiry and invite a descent into merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30], Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [24] and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42]-[45].
108 It is useful to set out again reg 1.15A of the Migration Regulations:
1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
109 Regulation 1.15A(2) of the Migration Regulations requires the Tribunal to ‘consider’ each of the matters listed in reg 1.15A(3). The critical question is whether in substance the Tribunal did do so. Real compliance with the regulation requires the Tribunal to demonstrate mental engagement with those particular facts or circumstances of the case that go to answering the ultimate question in s 5F of the Act, aided by reg 1.15A(3).
110 The Tribunal does identify (at [14]) that the issue in Mr Singh’s case was whether his relationship with his sponsor me the definition of ‘spouse’ in s 5F of the Act which, according to the statute, relevantly required determination of whether:
(a) they have a mutual commitment to a shared life; and
(b) the relationship between them is genuine and continuing.
111 It is also true that there is a distinction between making a decision and giving written reasons. The making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in: Minister for Home Affairs v Ogawa [2019] FCAFC 98 per Davies, Rangiah and Steward JJ (at [103] and the cases therein cited). When drawing implications from the Tribunal’s reasons, the Court should keep in mind:
(1) The impressionistic and evaluative nature of the Tribunal’s task in dealing with the existence of a de facto relationship.
(2) The Tribunal’s reasons are not to be construed minutely and with an eye finely attuned to the perception of error.
112 Fact finding is, of course, for the Tribunal. The Court is concerned with whether the Tribunal acted so as to warrant a conclusion that it did not perform the statutory task. The Tribunal may legitimately refuse an application for a partner residence visa because the applicant and his or her sponsor have given only limited evidence about many aspects of the relationship.
113 Ground 4 cannot be dismissed as being no more than a weight challenge to the Tribunal’s conclusions concerning the 14 statutory declarations. The weighing of evidence, of course, is a matter for the Tribunal. Although the Tribunal does not in express terms state that all 14 statutory declarations are fabrications, its statement (at [76]) can only mean that the probative value of each of the declarations was reduced to nil due to an alleged withholding of the fact of Mr Singh’s imprisonment. In each case, the ‘authenticity’ was rejected.
114 It is not explained how the premise of knowledge of Mr Singh’s imprisonment was arrived at. The Tribunal does not explore with Mr Singh why the 14 declarants would make a false statutory declaration. The Tribunal’s methodology was to question both Mr Singh and his wife, identify inconsistencies and from there, reason that his credibility was undermined. However, it went further and then, in effect, reached the same conclusion in respect of all the independent evidence.
115 As noted in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 per Kenny, Kerr and Perry JJ (at [33]), the cases where the ‘well is poisoned beyond redemption’ such that corroborative evidence can be completely dismissed are very rare: see also the discussion in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165. But even in such a case, the corroborating evidence must still be considered, even if it is to be rejected: BZD17 per Perram, Perry and O’Callaghan JJ (at [45]); WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 per Lee and Moore JJ (at [27]) and APF16 v Minister for Immigration and Border Protection [2019] FCA 524 per McKerracher J (at [61]).
116 No attempt has been made to treat any of the declarants separately from any other declarant. No attempt has been made to explore the length of time each declarant knew the couple nor whether the declarants were even aware of the incarceration. The Tribunal’s conclusion (at [76]), and especially its reasoning for it, was consistent only with a determination that each of the 14 declarants were prepared to complete a statutory declaration as to a state of affairs which was known to them to be untrue. Given the inadequacy of the reasoning and the deficiency in the reasoning process, this is an extreme conclusion. One would expect substantially more justification for it.
117 In this instance, the Tribunal’s analysis is such that there is no explanation as to how each of the 14 declarants would know that Mr Singh had been in prison, why each and every one of the 14 declarants would give false evidence about Mr Singh’s relationship and, in any event, what falsities were given. Mr Singh is left to guess as to how this conclusion was arrived at. In my view, there is force in the complaint as to the Tribunal’s treatment of the statutory declarations of the 14 declarants.
118 I would grant leave to Mr Singh to amend his grounds of appeal to include ground 4 of the Draft Amended Notice of Appeal (as amended orally to abandon particular 4.1) and ground 5 of the Draft Amended Notice of Appeal so far as it concerns the Tribunal’s treatment of the 14 statutory declarations. I would uphold the appeal on these grounds.
119 Ground 5, in general terms, alleges unreasonableness on the part of the Tribunal in respect of various parts of its reasons. These challenges are identified in particulars. I have addressed particular 5.1 in considering ground 4 (allowing the appeal on this ground). Further particulars and contentions of unreasonableness are advanced in support of ground 5 in the subsequent particulars. It will be apparent that ground 5 should, in my view, be rejected except in respect to particular 5.1.
120 Turning to particular 5.2 and particular 5.3, Mr Singh says on any view the matters recorded in the Departmental Report from officers regarding their interviews conducted in India were an important aspect of the Tribunal’s reasons for decision. There were two issues: the officers’ attribution to Mr Singh’s mother’s statement that Mr Singh had married his wife to obtain permanent residency; and the officers’ observation that there were no photographs of Mr Singh’s wife and his child on display in his mother’s home. Mr Singh’s mother was questioned by the Tribunal on both issues. She flatly denied the first issue. She also denied the second issue. There were, she said, photos of her daughter-in-law and her granddaughter displayed. She speculated ‘it could be the case that there were many other photos lying around and they [the Department officers] may have missed those photos’.
121 Several points regarding the Departmental Report were raised by Mr Singh. The Tribunal had before it a document dated three years earlier containing the impressions or recollections of two ‘officers’ somehow engaged by the Department in India. It cannot be said which of the two persons’ impressions or recollections it records. There are no contemporaneous notes attached to the report. It is not signed. It is asserted that the language spoken was Punjabi, presumably being the ‘parents and neighbours native language’ as was reported. It is not anywhere stated whether the report writer or writers are employees or contractors and whether they are in fact bound by the Public Service Act. The Tribunal seems to assume; the Tribunal refers in its reasons to the ‘Departmental officers’ report with respect to the home visit’. The Departmental Report was not available to Mr Singh. It is said that the Tribunal knew the Departmental Report was not available to Mr Singh. The Departmental Report ventures opinions as to the ultimate issue in dispute, which were not disclosed to Mr Singh. And the Departmental Report ventures opinions in the nature of expert anthropological evidence in support of the opinions as to the ultimate issue in dispute. These opinions were not disclosed to Mr Singh.
122 Mr Singh says this case is similar to Minister for Immigration and Citizenship v Le (2007) 164 FCR 151. In Le (at [60]-[67]), Kenny J collected the authorities on ‘Prasad unreasonableness’: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. Her Honour held that the Tribunal’s failure to call upon the Secretary to make inquiries as to Departmental matters, or to summon Departmental officers to give evidence, demonstrated vitiating unreasonableness in the manner of exercise of the duty to conduct a review under s 360.
123 In Le, the applicant ‘made serious allegations about the way the interview was conducted, which, even if partially true, bore on the reliability of the information said to derive from the interview’: Le (at [70]). Certain admissions were attributed to the applicant. These were denied. Her Honour reasoned (at [76]-[79]):
76 In summary, the fact of the mistranslation meant that the significance of the primary decision-maker’s decision record and the typed notes of interview was doubtful or uncertain in a number of critical respects. The mistranslation raised uncertainties about events at the interview and the bases on which the primary decision-maker had recorded them. It also raised doubts about the adequacy of the interpreter and the reliability of what had been interpreted to the Departmental officer on that day. It might also have raised uncertainty about the significance of what the Departmental officers saw and heard at Mr Huynh’s on the day of the interview. These uncertainties raised further questions as to whether Mr Nguyen’s account of what had happened was more reliable than might otherwise have appeared.
77 This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of the case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh’s residence that day.
78 These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal’s review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le’s application was a matter for it to decide in conformity with the Act and the Regulations.
79 Accordingly, the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterised as unreasonable in the Wednesbury Corporation sense. I would uphold the Federal Magistrate’s decision on this ground.
124 Mr Singh contends that this case discloses the rare but sufficient circumstances capable of engaging Prasad unreasonableness. It was unreasonable for the Tribunal to dismiss as fabrication, and indeed to deny the ability to even dispute, Mr Singh’s mother’s denial of matters of impression recorded by one or both non-witnesses in the Departmental Report, a second-hand hearsay report, undisclosed to Mr Singh, with no contemporaneous notes, on an issue of central importance where the contemporaneous notes (if any) could be simply requested under s 363(1)(d) and where the report writers could be readily required to give evidence. Mr Singh would appear to contend the circumstances in his case are worse than those in Le where her Honour was considering contemporaneous notes. Further, Mr Singh contends that it is clear from certain observations by the Tribunal member that the Tribunal was aware of statutory power to make requests. It is noted (at [85] and [92]):
85. [Mr Singh’s mother] confirmed that Departmental officers visited her home. She said that at that time she had photographs of the sponsor and Jazleen on display. The Tribunal referred her to the delegate’s decision which states no such photographs were on display. She said “maybe photographs were lying around and they did not see them.” The Tribunal treats that evidence as an admission by [Mr Singh’s mother] that photographs of the sponsor and Jazleen may not have been visible to the officers. The Tribunal takes this matter no further.
…
92. For the above reasons the Tribunal considers there is no need for any further investigation of the Department’s interview of the applicant’s mother.
(Emphasis added.)
125 As to Mr Singh’s mother’s admission, she was asked by the Tribunal about the report writer’s or writers’ allegation that there were no photos displayed. The allegation was flatly denied. The Tribunal invited Mr Singh’s mother to speculate about why the report might have recorded otherwise. The exchange was as follows:
Member: Tell me, when the Department of Immigration spoke to you previously, did they come inside your house?
[Mother]: Yes they came in the house.
Member: And at that time did you have any photographs of your granddaughter … [and her mother, Mr Singh’s wife] on display?
[Mother]: Yes, and the photos are still up.
Member: So why do you think the Department of Immigration said that they couldn’t see any photos of your daughter-in-law or your granddaughter?
[Mother]: They were saying that they’re not - that the photos are not up on the walls, displayed.
Member: It actually says displayed in the home.
[Mother]: It could be the case that there were many other photos lying around and they may have missed those photos.
Member: So where do you usually keep photos of your granddaughter … and her mother?
[Mother]: [My granddaughter] and her mother. Yes, they’re up in the house. They’re displayed in the show case, they’re in the lounge as well.
Member: So you’re saying they’re in frames, are they and they’re standing up so they’re visible?
[Mother]: Yes, they’re framed.
126 This exchange is then referred to by the Tribunal in its decision (at [85]):
[Mr Singh’s mother] confirmed that Departmental officers visited her home. She said that at that time she had photographs of the sponsor and [her daughter] on display. The Tribunal referred her to the delegate’s decision which states no such photographs were on display. She said “maybe photographs were lying around and they did not see them.” The Tribunal treats that evidence as an admission by [Mr Singh’s mother] that photographs of the sponsor and [her daughter] may not have been visible to the officers. The Tribunal takes this matter no further.
(Emphasis added.)
127 Mr Singh contends this finding is perverse, being opposite to the positive evidence given by his mother during the interview with the Tribunal.
128 I will address this submission immediately and deal with unreasonableness more generally below. In my view, a suggestion that the finding is the opposite of the evidence is not particularly clear. Mr Singh’s mother’s answer ‘[Y]es’, they’re framed’ was in response to two questions. The affirmation may well have been to the framing, rather than both the framing and the visibility. On the other hand, in the transcript (set out at [125] above) it is recorded that Mr Singh’s mother did accept that the officers may not have seen them as they were lying around. They could be lying around and framed. But, of course, accepting as I do that the thrust of Mr Singh’s mother’s evidence is that some relevant photos were on display and visible and that some may not have been visible to the officers, the question remains as to how the Tribunal’s conclusion is perverse? In short, the conclusion is not perverse in the sense of legal unreasonableness. What the final sentence makes clear, in context, is that the Tribunal cannot make a finding against the totality of the evidence, one way or another on that issue. That finding and conclusion was open.
129 Further, Mr Singh contends the statement immediately following the finding of an ‘admission’ is odd: ‘The Tribunal takes this matter no further’. He suggests it seems to be an effort to protect the report writers from any suggestion that the contents of the report was incorrect. It is also suggested to be an oblique reference to s 363(1)(d). However, if the Tribunal is content to diminish one of the two main adverse conclusions made in the report, Mr Singh takes issue with the lack of recognition that the cogency of the other adverse conclusions may also be damaged. I have dealt with this above. Taking the matter no further is considered with concluding that no finding on this topic can be made. That conclusion was open to the Tribunal and reasonable.
130 Turning to the Tribunal’s consideration of Mr Singh and his sponsor’s finances raised in particular 5.4, specifically the lack of evidence of any joint liabilities, Mr Singh says that the Tribunal’s finding (at [50]), that ‘[t]here was no evidence before the Tribunal that the parties jointly own any assets or have any joint liabilities’ was contradicted by the following documentary evidence:
(1) The hearing took place on 19 October 2016. Mr Singh submitted his Medibank Private statements dated 13 October 2016 nominating his wife, his daughter, and each of his step-children as beneficiaries under the policy. The policy was ‘paid up’ until at least 20 October 2016. Another statement dated 10 July 2016 describes rebates on the premium referring to his wife.
(2) There were also Western Union transactions records showing payments by Mr Singh’s wife to Mr Singh’s mother dated November 2015, February 2016, and March 2016 totalling nearly $5,000. This is said to be a significant sum for Mr Singh and his wife. Why would Mr Singh’s wife be transferring significant sums to Mr Singh’s mother if she did not regard it as an obligation of her own?
(3) The bank records showed Mr Singh paying utilities occasionally.
131 As to pooling of financial resources at time of decision, Mr Singh refers to the Tribunal’s statement (at [49]):
Owing to the lack of current documentary evidence with respect to financial matters the Tribunal is unable to determine to what degree, if any, the parties pool their financial resources at time of decision.
The Tribunal was expressly required by reg 1.15A(3)(a)(iii) of the Migration Regulations to consider ‘the extent of any pooling of financial resources’.
132 Mr Singh argues in this assessment as well the Tribunal was wrong. There was the documentary evidence of joint liabilities described above. Moreover, reg 1.15A(3)(a)(iii) does not restrict consideration to documentary evidence. The Tribunal questioned both Mr Singh and his wife about their joint commitments. For Mr Singh and his wife, a ‘major’ joint purchase was a washing machine. The Tribunal did not challenge this evidence. More generally, the evidence was that Mr Singh and his wife simply transact on the one account, using a single PIN number, and that Mr Singh contributes when he can. There was no differentiation between the property of Mr Singh and that of his wife. While Mr Singh accepts that the Tribunal was not bound to accept that evidence, however, it was quite wrong for it to find that there was a lack of documentary evidence to determine to what degree, if any, the parties pool their financial resources at the time of the decision.
Consideration
133 The duty imposed upon the Tribunal is a duty to review. The Tribunal is not under a general duty to make its own inquiries beyond the information provided to it, except regarding obvious inquiries about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (at [1] and [25]). The scope of any duty to inquire has from the outset been recognised as being within a ‘strictly limited’ compass: Prasad (at 169-170). The Tribunal has no general obligation to make out an applicant’s case for him or her: see Le (at [60] and the cases therein cited).
134 The fact that it may be relatively easy for the Tribunal to obtain a document does not elevate the lack of such enquiry to jurisdictional error: MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 (at [63]); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 (at [64]). Nor does the fact that it would be reasonable to obtain such a document: Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (at [33] and the cases therein cited).
135 There are three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(a) identify the failure with precision;
(b) examine the terms, scope and purpose of the statutory power which the Tribunal failed to consider; and
(c) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
See DPI17 v Minister for Home Affairs [2019] FCAFC 43 (at [38]).
136 Section 361 provides:
361 Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).
137 Mr Singh was on notice, even before the delegate’s decision, as to what the visiting Department officers recorded after the visit to the home of Mr Singh’s mother in India in the Departmental Report. By the Departmental Letter he was notified of the interviews. While he was not provided with the Departmental Report, he was provided with his mother’s statements and notified of the observations regarding the photographs. The Departmental Letter to Mr Singh recorded:
Your mother … stated the following:
That you went to Australia for studies and left your studies and married your sponsor in between to get permanent residency in Australia.
That she does not know how old your sponsor is.
That she does not know where you were married or when you married your sponsor.
That you told her about your marriage to your sponsor after the marriage had taken place.
That she does not know the date of birth of your daughter ...
That she has not sent any gifts to your daughter ...
That she does not know the names of your sponsor’s mother and brother.
That she does not know the occupations of your sponsor’s mother and brother and does not know if your sponsor’s family stay with you.
In addition departmental officers observed that there were no photographs displayed at your mother’s home of your sponsor and your child.
(Emphasis added.)
138 Mr Singh responded to the Departmental Letter, explicitly commenting that the remarks ascribed to his mother that Mr Singh married for permanent residency and the absence of photos were ‘false statements’.
139 The attendance of the Department officers at Mr Singh’s mother’s home in India was also important to the delegate’s decision.
140 The Tribunal sent Mr Singh an invitation to appear before the Tribunal. That invitation referred to an information sheet and a ‘response to hearing’ invitation. There is nothing to suggest Mr Singh gave a notice under s 361(2) of the Act in respect of the authors of the Departmental Report. If Mr Singh did not act on a written invitation from the Tribunal to call a witness, then the Tribunal cannot have acted unreasonably in not compelling the attendance of the visiting Departmental officers under s 363(3)(a) of the Act so as to ground any suggestion of unreasonableness by the Tribunal based on a presumed failure to proactively inquire.
141 As to the Tribunal’s consideration of joint liabilities and financial arrangements raised in particular 5.4, the Tribunal’s statement (at [50]), on which Mr Singh chiefly relies, must be read in context, not divorced from the totality of the Tribunal’s reasons on this point. The Tribunal records much of the material before it (at [41]-[42]):
41. After the hearing the Tribunal received the following additional financial material:
• [Australian Taxation Office] notices of assessment in [Mr Singh’s] name for 2012 (taxable income $817), 2013 (taxable income $12,534) and 2014 (no taxable income).
• Hakea Prison statement of financial transactions for the period 4 to 18 February 2013 and a receipt from the prison showing a deposit of $200 in “private cash” on account of telephone costs.
• Bank statements in the applicant’s name for 2012 and 2013.
• Bank statement in [Mr Singh’s] name for the period 30 November 2015 to 31 December 2015 which shows two payments of wages to him, one payment of a gas bill, a transfer to the sponsor of $500 and various debits that appear to be for sports clothing, alcohol and two small debits for food shopping.
• Letter to [Mr Singh] from his health insurer for period ending 30 June 2016 showing $96 paid during the relevant period.
• Evidence of ambulance cover in [Mr Singh] and the sponsor’s names, last payment 7 October 2016 (folios 112 and 113, Tribunal file)[.]
• Letters from two superannuation funds asking [Mr Singh] for information.
• Generic receipts from cinemas, adventure world and food outlets dated 2015 and 2016, the most recent being 2016.
• Three money transfers from the sponsor to [Mr Singh’s mother] totalling AUD4,950 from November 2015 to February 2016.
• The sponsor’s Centrelink statement dated 21 October 2016 on which a handwritten note states she is considered partnered although she receives a single rate of pension (Parenting Payment) owing to a “section 24 review” on 9 September 2015 (Tribunal file, folio 121).
42. The Tribunal acknowledges the evidence of money transfers show that the sponsor provided financial support to [Mr Singh’s] mother in the period late 2015 to early 2016.
142 The Tribunal referred to most of the material. It is not necessary to refer to every piece of evidence advanced. Some evidence may be irrelevant or its consideration may be subsumed into findings of greater generality.
143 The ‘joint ownership’ of an asset is a flexible expression, as is ‘joint liabilities’. It was open to the Tribunal to conclude, after setting out the material put forth by Mr Singh as to his finances and financial arrangements with his wife, that there was no evidence warranting a finding that the parties jointly owned assets or had joint liabilities.
144 In my view, the remaining unreasonableness grounds are not made out. It is unknown whether the Departmental officers were in India or Australia at the time of the Tribunal hearing. The Tribunal’s function is to carry out a review. It is not under a duty to make the case for an applicant. In this instance, Mr Singh was on notice before the delegate’s decision as to what the visiting Departmental officers had recorded after visiting the home of his mother in India. Clearly their visit was important. Further, the Tribunal considered the material before it on Mr Singh’s finances and made a finding which was open to it on the evidence. There was nothing amounting to unreasonableness in its conclusion in this respect. Ground 5, particular 5.3 and particular 5.4, are essentially merits challenges.
145 The issue in ground 6 is whether the ‘particulars’ of information in an otherwise undisclosed Departmental Report, given to Mr Singh in purported compliance with s 359A, were ‘clear particulars’. No oral particulars were given or purported to be given by the Tribunal during the hearing.
146 In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 (at [23]), Flick J said:
But “information” for the purposes of s 424A [and therefore 395A] cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case … the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment … or respond …” is meaningful.
147 Mr Singh argues that here the information, the Departmental Report, was neatly contained within a five page document and that there was no practical impediment to the disclosure of the information. Mr Singh further argues the Departmental Report was centrally important, containing:
… breathtakingly sweeping statements as to alleged cultural practices in the nature of expert anthropological opinions which directly informed the report writer or writers’ conclusion: “Referral outcome: Non-Genuine”.
148 Mr Singh take issue with the survey of neighbours and a shopkeeper as to their knowledge of Mr Singh’s marital status in Australia, justified in the Departmental Report on the basis that:
As per local knowledge, parents/family in India celebrate and share their happiness (child’s marriage) with neighbours and villages if their children’s relationships are genuine.
149 For Mr Singh it is contended that:
(1) It was artificial to attempt to divorce the particular strands of information selected for disclosure from the context. There was a real dispute about the accuracy of the Departmental Report. Mr Singh’s mother flatly denied the matters attributed to her. The context of the Departmental Report could have enabled Mr Singh to make submissions about why the report writer or writers’ observations ought not be accepted, and that the methodology informing the conclusions was specious.
(2) While the Department wrote in the Departmental Letter providing some particulars, what was omitted was that the significance attached to the shopkeeper and neighbours’ information was based upon alleged ‘local knowledge’. It was clear that the delegate expressly considered alleged Indian cultural and traditional practices: ‘I have considered that traditionally and culturally in India when a marriage is genuine the family will share their happiness and celebrate with their neighbours’.
(3) The particulars of Mr Singh’s brother and mother’s knowledge were disclosed, but what was omitted was the following ‘pious and meaninglessly sweeping observation’, including:
… In Indian context it is highly implausible that family [sic] is not aware of details of their child[’]s marriage as marriages in India are considered to be a strong bond.
… In Indian context, birth of a child in the family (especially when it is the first child) is considered to be a moment of great happiness and parents are usually aware of the date of birth of their grandchild.
Consideration
150 Section 359A of the Act provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
151 The section does not apply to the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 per Gleeson CJ, Gummow, Callinan, Hayden and Crennan JJ (at [18]). It uses the word ‘would’, rather than ‘could’. The section does not come into play merely because the Tribunal member forms the view that information could, or could possibly, be relevant to determination of a claim. The Tribunal must give the particulars of any information that the Tribunal considers would be the reason or part of a reason for affirming the decision. It depends upon what the Tribunal takes to be relevant.
152 The cultural material referred to in particular 6.2 and in Mr Singh’s submissions, even if it is otherwise ‘information’ for the purpose of s 359A(1)(a) of the Act, is in any event excluded by s 359A(4)(a), which provides:
359A Information and invitation given in writing by Tribunal
…
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
…
153 This is apparent from B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30, where Dowsett J said (at [50]):
The section requires the Tribunal to extend to an applicant an opportunity to comment concerning material upon which it proposes to act. However subs 424A(3) excludes certain material from that prescription. In this case the additional material concerned the relations between indigenous and non-indigenous Fijians. To my mind such material was not about the prosecutor but about a class of persons of which the prosecutor was a member, namely non-indigenous Fijians. However the prosecutor submits that the appropriate “class” for the purposes of s 424A is much narrower. In par 7 of his supplementary submissions he submits:
‘The (prosecutor) was part of a group of persons that can be defined as Fijian Indians:
(a) Whose land was taken although their leases had several years to run;
(b) Who were illegally dispossessed by Fijians of their homes and as a result were denied access to basic services and whose capacity to subsist was threatened;
(c) Who had been robbed of their possessions;
(d) Who had sought the protection of the authorities and such protection had been refused’.
(Emphasis added.)
154 The material was certainly thin, but the Tribunal did not expressly rely on the cultural material. There is no basis on which to draw the inference that the Tribunal implicitly used that material as part of the reason for affirming the delegate’s decision. Mr Singh bears the onus of showing that such an inference should be drawn. In my view, the Minister’s contentions on this point are sound and leave to rely on the new draft ground 6 in the Draft Amended Notice of Appeal should not be permitted.
155 For the reasons I have given, I consider that the appeal should be allowed and I will hear the parties on costs.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
