Federal Court of Australia

Spano v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 389

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    These reasons concern an application for judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal), made on 8 June 2022: Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1537. That decision affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse the applicant’s spouse, referred to in these reasons as Mr P, a Partner (Provisional) (Class UF) visa. The Tribunal’s decision was based on its finding that Mr P did not pass the character test pursuant to s 501(1) of the Migration Act 1958 (Cth) (Migration Act), defined in s 501(6) (the Character Test). The Tribunal also determined it should exercise the discretion in s 501(1) to refuse to grant Mr P the partner visa by reference to the criteria in Direction no. 90 of the Minister.

2    This application is based on eight grounds of review, each alleging that the decision of the Tribunal was affected by jurisdictional error. The applicant sought relief in the form of orders quashing the Tribunal’s decision and remitting the decision for reconsideration by the Tribunal according to law.

3    For the reasons below, the application is dismissed.

Factual background

4    Mr P is a 30-year-old citizen of Albania.

5    On 27 May 2010, Mr P lodged an application for a student visa. On 26 July 2010, that application was refused. On 23 August 2010, Mr P lodged a second application for a student visa. On 14 December 2010, that application was also refused.

6    On 29 February 2012, Mr P arrived in Australia, landing in Brisbane, under a false name and with a fraudulently altered Italian passport, issued in the name of another person. He also presented a boarding pass and incoming passenger card in that false name. Mr P subsequently applied for a protection visa, which a delegate of the Minister refused in May 2012. In November 2012, Mr P was released into the Australian community and lived with his brother. In July 2014, the Federal Court dismissed Mr P’s appeal regarding his protection visa application and in August 2014, Mr P was taken into immigration detention. In 2015, the High Court dismissed his application for special leave to appeal.

7    Mr P met the applicant in June 2014 and they married later that year while Mr P was in immigration detention. He was removed from Australia in June 2015.

8    On 7 July 2015, Mr P applied for a partner visa. On 3 June 2016, a delegate of the Minister refused the application because they were not satisfied Ms Spano and Mr P were in a spousal relationship. Following an appeal to the Federal Circuit Court and remittal to a differently constituted Tribunal, the Tribunal directed the delegate to reconsider the application on the basis Mr P was and remained a spouse of an Australian citizen, Ms Spano.

9    On 23 April 2020, the Department of Home Affairs notified Mr P that it intended to consider refusing his application on the basis he did not pass the Character Test, citing information regarding Mr P’s previous travel to Australia on fraudulent travel documents. Mr P was invited to comment on the information and provide reasons why the visa application should not be refused even if he did not pass the Character Test. Mr P made written submissions to the delegate via his representative responding to this notice.

10    On 16 July 2020, the delegate refused Mr P’s application for a partner visa under s 501(1) of the Migration Act because they were not satisfied that he passed the Character Test.

11    On 27 July 2020, Ms Spano applied to the Tribunal for review of the delegate’s decision to refuse Mr P’s partner visa application. After a differently constituted Tribunal affirmed the delegate’s decision, on 29 September 2021, the Federal Court made consent orders quashing the Tribunal’s decision and requiring the Tribunal to reconsider its review of the delegate’s decision according to law.

12    On 8 June 2022, a differently constituted Tribunal again affirmed the decision of the delegate to refuse Mr P’s partner visa. It is that decision which is the subject of this appeal.

The Tribunal’s reasons

13    The issues for the Tribunal’s determination were whether Mr P passed the Character Test; and if not, whether the Tribunal should exercise its discretion pursuant to s 501(1) of the Migration Act to refuse to grant Mr P a partner visa: at [41].

14    The Tribunal received evidence from Ms Spano being a written statement and oral evidence. Mr P gave oral evidence at the hearing with the assistance of an interpreter. The Tribunal also received written and oral evidence from both Mr P’s aunt and Mr Ognjenovic.

15    The Tribunal referred extensively to the material before it and provided detailed reasons for its findings. In that context, having given detailed consideration to the issue of character, the Tribunal concluded that Mr P was not of good character and therefore did not pass the Character Test: at [192]-[193]. In reaching that conclusion, the Tribunal noted, inter alia, that Mr P attempted to enter Australia on false documentation, fabricated claims to remain in the country and maintained those claims to subsequently return to Australia. The Tribunal found Mr P continued those claims before the Tribunal and made adverse findings regarding his credit. In those circumstances, the Tribunal found that Mr P’s past and present general conduct was sufficient to indicate a lack of enduring moral quality that strongly outweighed evidence of his good behaviour, conduct and rehabilitation: at [192].

16    The Tribunal went on to consider whether it should exercise the discretion in s 501(1) of the Migration Act. In accordance with s 499(2A) of the Migration Act, it did so by reference to the criteria in Direction no. 90 of the Minister. The Tribunal found that the weight attributable to the protection of, and expectations of, the Australian community outweighed those criteria that weighed in favour of Mr P and the Tribunal not exercising the discretion to refuse to grant him the partner visa. Those criteria favourable to Mr P included Mr P’s links to the Australian community, and to a lesser weighting, the best interests of minor children in Australia: at [240]-[241]. The Tribunal found that a number of criteria were not relevant or applicable to the present case and were given no weight in its decision: at [209] and [227]-[229].

Grounds of review

17    Although there are eight grounds of review in the amended originating application, the applicant only made oral submissions on three; grounds 1 and 5 (addressed together) and 8. In respect to the remaining grounds, the applicant relied on her written submission. Many of the grounds have some overlap, with some based on the same finding(s) of the Tribunal. Many of the grounds are also underpinned, or rely at least in part, on an acceptance of the factual premise asserted in ground 1, which, for the reasons below, is not established. Given the nature of some of the grounds, it is also relevant to record at this stage, that the applicant was legally represented before the Tribunal.

Ground 1: The Tribunal allowed and/or considered material which was, in all of the circumstances, prejudicial, irrelevant and/or unfair

18    The complaints in this ground are twofold: first, as to the approach of the Tribunal; and second, regarding statements in the first respondent’s Statement of Facts, Issues and Contentions (SOFIC) dated 21 January 2022, before the Tribunal.

19    As to the first, the applicant submitted that the Tribunal relied upon the content of an earlier 2012 decision of the Refugee Review Tribunal (RRT) that all parties had submitted should be disregarded (or admitted on a limited basis). It took this course without providing an opportunity for submission on whether it should address the RRT’s decision as an inquisitor; and, if it were to address the RRT decision (as it did), what issues it considered may be adverse to the applicant, so as to allow the applicant an opportunity to make submissions.

20    At [188] the Tribunal concluded that:

The Tribunal notes that it has referred to the RRT process, including its decision, and subsequent court processes related to Mr P’s protection visa claim. Ms Spano contended that this Tribunal, in reviewing the present decision regarding the Visa, should not look beyond the previous findings made by the courts and the RRT against Mr P. The Tribunal does not accept that submission and refers to subsection 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act), which provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. As stated, the Tribunal is not reviewing Mr P’s protection visa claim. It is reviewing the decision to refuse to grant Mr P the Visa and making relevant findings to that end. However, an earlier decision of a review body such as the RRT, or a court, is information or material with which the Tribunal may inform itself and can give it the weight which it considers to be appropriate.

21    The applicant does not challenge the correctness, as a matter of principle, of that approach.

22    Rather, although the applicant accepts that the Tribunal was entitled to consider the content of the RRT decision, she submits that in the circumstances it was required to notify her in advance of doing so, to enable an opportunity for her to provide submissions on the topic.

23    It follows that the applicant’s case is dependent on her establishing she was not on notice of the approach taken by the Tribunal, and in the circumstances, such notice was required.

24    The applicant has not established the first proposition.

25    A proper reading of the transcript of the proceedings below (with the documents filed relevant to the proceeding), reflects that the applicant was put on notice the Tribunal may rely on the RRT decision because of the manner it was referred to throughout the proceedings.

26    Although the applicant submitted to the Tribunal that it should not “read, consider or have regard to” the RRT decision beyond noting that Mr P’s protection claims were refused, the decision was admitted by the Tribunal at the outset of the hearing (after argument).

27    To establish this ground the applicant relied on passages in the transcript of the admissibility argument held at the commencement of the hearing. It is appropriate to identify those passages, but to do so in their proper context.

28    In respect to the applicant’s position, the following exchange was relevantly identified:

SENIOR MEMBER: …But are you saying I shouldn’t have regard to any of those matters, including the decision and court decisions following the tribunal decision?

MR KIKKERT: Yes, Member. It’s our submission that the tribunal of course can have regard and should have regard to the fact that Mr [P] did apply for a protection visa, that it did go through the stages at the court, that he did not meet the requirements for a protection visa and was not granted a protection visa. But as far as the facts in the decision, it's our submission that the tribunal should not have regard to the material in the decisions.

SENIOR MEMBER: What about - and obviously I’ve read both parties’ Statements of Facts, Issues, and Contentions, and the respondent’s does extract, I recall, some of the findings from the Refugee Review Tribunal in relation to the protection claim - what about the credibility findings that that tribunal made in relation to Mr [P]?

MR KIKKERT: We’ll submit that the tribunal can have regard that Mr [P] was not granted a protection visa, but we will submit that the material in those decisions should not be regarded by the tribunal. We note that while the tribunal can note that a tribunal and the court did consider Mr [P]’s protection claims and did not find in his favour, we would submit that the tribunal should not have regard to the material in those decisions.

SENIOR MEMBER: How does that stack up against the recent Federal Court decision that the respondent’s referred to of Markaj v Minister for Immigration and Border Protection [2020] FCA 1511 where that court referred to the tribunal identifying examples of the applicant’s conduct which supported the tribunal’s concerns, which included that the RRT had made adverse findings as to his credibility. Isn’t that the same situation here?

MR KIKKERT: We will submit in these circumstances that Mr [P] will be questioned by myself and my learned friend will have the opportunity to cross-examine Mr [P], and this tribunal will have an opportunity as well. We would submit that in these circumstances where all this material can be drawn out of Mr [P] and this tribunal can make a finding of itself based on that evidence. We would submit that the more reliable evidence and the material that will help this tribunal make the correct and preferable decision would be based on Mr [P]’s examination and cross-examination rather than the material in the protection visa applications.

29    In respect to the first respondent’s position, the following passage occurred before the passage relied on by the applicant:

MR CUMMINGS: Member, there’s a difference between submitting that you shouldn’t have regard to evidence and submitting that you are forbidden from having regard to evidence. We’re just talking about should not have regard to evidence because there’s other evidence that’s more weighty. It’s not an issue for admissibility, it’s an issue for closing submissions. If the point being made against me is that you are forbidden from taking this evidence into account, I’ll take you to Snell – it’s one of the cases I emailed your registry yesterday. Do you have that to hand?

30    The first respondent then referred to a passage from Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18, and went on to submit:

MR CUMMINGS: So that address [sic] the issue of admissibility. In terms of relevance, what I’m going to be inviting you to do with these decisions is proceed on the basis that they accurate [sic] record things the applicant said, orally or in writing, to the relevant decisionmaker. That’s all. I’m not saying you must find the same things that the delegate or the RRT found about the protection visa. I’m just saying that they’re probably accurate records of evidence given by the applicant. Now, whether you use that evidence in those decisions in the same way as the protection visa decision makers in terms of what findings you’d make about the applicant’s protection visa claims, that’s obviously a matter for you. You’re going to have to weigh up that evidence and all the other evidence you have before you. But clearly it’s relevant to what I see as really the only factual dispute in this case: has the applicant ever genuinely feared for his life in Albania because of threats he received arising out of a relationship he had when he was young?

So that's why you should admit the evidence - admit the document into evidence. We can argue about weight tomorrow in closing submissions.

31    Only the first four lines of that passage are relied on by the applicant.

32    The Tribunal concluded:

SENIOR MEMBER: Yes. Well, we're hearing the matter afresh, given the decision of the Federal Court in September last year. I think the safest thing to do would be to take that bundle of documents into evidence and, as Mr Cummings rightly points out, it would then be a matter for the tribunal to consider what weight it gives particular matters, having regard to the evidence given at this hearing in relation to the 501 decision.

33    It is plain from those passages alone, that the applicant was on notice of the potential for the Tribunal to rely on the content of the RRT decision.

34    In the following context, this is even more apparent.

35    First, the first respondent’s SOFIC, filed before the proceeding, repeatedly refers to aspects of the content of the RRT decision, both as to recitation of the evidence recorded as being before the RRT, and findings in relation to Mr P’s credibility. During the hearing the first respondent never disavowed reliance on those submissions. Indeed, as referred to below, it is plain the submissions were relied on.

36    Second, consistent with that approach, as apparent from the Tribunal’s reasons, the first respondent cross-examined the applicant about aspects of the RRT decision: see for example at [56] below. He did so without any objection from the applicant. If the applicant had understood that the content of the RRT decision was not to be used or relied on by the Tribunal, she would have been expected to object at that time.

37    Third, and importantly, the closing submissions of the first respondent refer, inter alia, to the content of the RRT decision, both as to what the applicant had said before the RRT, but also as to findings it made in respect to credibility. For example:

MR CUMMINGS: …The applicant has had three attempts at convincing people that he genuinely fears harm in Albania, and he’s failed every time. It’s not just a decision making [sic] saying, well I am not sure, maybe you’re telling the truth, maybe you’re not, you just haven’t convinced me.

It’s all three of those decision makers affirmatively finding the claims are fabrications. So the references there are for the delegate’s decision on the protection visa applications, page 11 of the second bundle, the RRT decision is page 70 of the second bundle and then Senior Member Manetta’s decision …

Now the fact that those other decision makers have reached those decisions, doesn’t mean that you have to reach the same decisions, you have to make your own mind up, but that's just relevant to context.

38     The following was submitted further:

MR CUMMINGS: …So when the applicant gets to the refugee review tribunal, he changes his evidence, [and refers to the page references] ... He says, no, no, the threats actually began around May 2010 after the sexual encounter with Niamey, it’s page 52. Now May 2010 is an interesting month (indistinct) because it’s May 2010 that the first student visa application is lodged.

…

So we’ve got this, sort of, attempt to kind of retrospectively fit in the protection claims to the student visa dates. Where the applicant – where the tribunal got to on that, is this, paragraph 111 on page 69, didn’t accept – or reject it as an appropriate explanation that he was under a lot of stress and depression, didn’t accept he couldn’t remember the exact date, found that –confronted as the applicant (indistinct) the delegate’s finding that his claim that he applied for the student visa because of the threats, was inconsistent with his evidence about the timing of the relationship. [sic]

Has changed his evidence as to when he met the girl. …

39    Later, in respect of alleged incidents involving Mr P’s father the first respondent submitted:

MR CUMMINGS: …what you’ll see there when you read that paragraph is the applicant getting himself caught up in the dates. He finds himself having to improvise mid-hearing by providing new details. So what’s happened is at the first RRT hearing the applicant says that his father has been stopped when driving Mr [P’s] car. At the second RRT hearing we have a report of that incident. That incident can’t be the incident [P] was talking about at the first RRT hearing because it happened on the same day. They can’t have known about it then. So then [P] has to scramble. It would appear like [P] has to scramble and explain that. What he says is, “This is actually the second time but there was no report of the first time because the first time they didn’t use guns. The second time they did use guns.”

40    And in respect of warnings Mr P said that he received from his then girlfriend:

MR CUMMINGS: … the tribunal said to the applicant the issue for him was whether the tribunal believed his story of being in a relationship with a Muslim girl (indistinct) after him. So you got this hearing where the tribunal is saying to the applicant, “Look, I’m having real trouble accepting that what you are telling me about this is true.” … One week later we’ve got the applicant saying, “Hey, you won’t believe what’s happened. Niamey has called me, and she’s just called me to remind me that I am in danger in Albania.” …

So why is it that she is getting [sic] Australian phone number which of course necessarily leads to a conclusion that she knows he is in Australia to call him and just say, “Don't come back.” Right at the moment the applicant needs that evidence because the earlier evidence he's given hasn't persuaded the tribunal. It's an incredible turn of events, one that you will easily conclude is a fabrication.

41     The respondent submitted in respect of the RRT’s findings:

Where the RRT got to is this. Page 69, paragraph 112, “The tribunal should and does adopt a liberal approach towards the applicant’s recall of significant dates. In this case the conduct of the applicant and the tribunal’s assessment reveals him to have engaged in a pattern of dishonest behaviour designed to deceive.”

Next page you have, “The tribunal finds as his claims are fabricated the applicant does not significantly fear harm of any type for any reason in Albania.” Now there is nothing to suggest to you that there is some fatalist defect in the tribunal’s reasoning process.

42    The applicant did not raise any complaint about those submissions, and nor did she make any reference to them during her oral submissions in reply. Again, plainly, it would be expected the applicant would have taken that course if she understood that material was not to be relied on.

43    This reflects that, contrary to the applicant’s submission, both parties did not contend before the Tribunal that the content of the RRT decision should be disregarded, but rather, the first respondent relied on aspects of it.

44    It is readily apparent from a consideration of the proceedings below that the applicant was well on notice that the content of the RRT decision may be relied on by the Tribunal. She had ample opportunity to address matters she said were raised by the decision. As the applicant was on notice of the approach taken by the Tribunal, the question of whether notice was required does not arise for determination.

45    I note for completeness that there is no evidence before this Court that the applicant’s counsel understood differently. Moreover, in so far as the applicant made reference in her submission to the previous Tribunal’s approach not to rely on the RRT’s decision, that does not advance her case. Whatever occurred during that hearing, or the approach taken by that Tribunal, this hearing was a different hearing, and the approach taken made clear to the applicant. Nothing the Tribunal did or said during the course of the hearing could have created any expectation that the Tribunal would not rely on the RRT decision without first notifying the applicant. Indeed, the transcript reflects otherwise.

46    The premise underlying this aspect of the ground of review is not established.

47    As to the second basis, the applicant submitted she objected to statements in the first respondent’s SOFIC during the Tribunal proceedings and/or in her submissions in reply before the Tribunal. Those statements relied on in submissions in this Court were:

(1)    a quote of the protection visa delegate’s decision, which included a finding in “light of the [visa] applicant’s family history”, and the reference to Mr P’s family history at SOFIC [7];

(2)    a reference at SOFIC [11] to Senior Member Manetta as a decision maker who had rejected “the merits of the [visa] applicant’s protection claims”, despite that decision having been quashed. I note the submission appears to relate to [33] and not [11].

48    I note that during the course of the hearing, a third particular to this submission was withdrawn when it became apparent that it was based on an erroneous premise.

49    The applicant submitted that the SOFIC was so prejudicial and unsafe because of the reference to those two matters that it caused the whole of the Tribunal’s decision to become tainted with jurisdictional error. The Tribunal allowed material and evidence which was prejudicial, irrelevant and/or unfair despite concerns and objections being raised both in writing and orally by the applicant’s representative.

50    The applicant cannot point to the use of either of the two impugned submissions by the Tribunal. They appeared in a thirty page SOFIC. The impugned extract of the protection visa delegate’s decision is one section of a longer direct quote from the delegate’s decision, set out in the SOFIC at [43] as part of a summary of the reasons of the delegate. The passage at SOFIC [7] is part of the background to the decision to refuse Mr P’s student visa applications, which was extracted in the preceding paragraph. When pressed during this hearing, the applicant could not articulate any prejudice said to have arisen from the impugned SOFIC statements. Given the limited nature of the topics of complaint, even if accepted, it is very difficult to see how they could properly found a submission that they were “so prejudicial and unsafe that the SOFIC caused the whole decision to become tainted with jurisdictional error”.

51    This basis is also not established.

52    Accordingly, this ground is not established.

Ground 2: the Tribunal denied the applicant procedural fairness

53    This ground is based on the Tribunal’s reasons regarding an alleged shooting incident involving Mr P’s brother, a police report made by Mr P’s father and Mr P’s medical records from Albania. The applicant relies on the Tribunal’s finding at [166] that Mr P fabricated the claim that his brother EP was shot at while driving a car when he visited Albania in 2018; its finding at [167] that the police report in evidence was “of an incident that did not occur”; and at its finding at [186]:

…While Mr P makes reference in some of those medical appointments to having to remain at home unless accompanied because he feels unsafe, given Mr P’s testimony to his Tribunal, it finds that these references were made to benefit his prospect of returning to Australia. …

54    It was submitted that it was never put to either the applicant or Mr P that the claim that EP was shot at while driving a car, and/or that the psychological reports, were falsified, which amounted to procedural unfairness.

55    Notably, these passages occurred in a broader context, evident in the Tribunal’s reasons at [187]:

The Tribunal has found that Mr P was not a credible witness and gave fabricated evidence at the hearing. This Tribunal’s task was not to again consider Mr P’s protection visa claim. That issue was resolved conclusively through a series of processes, being a delegate of the Minister in 2012, followed by the RRT and then the courts, including a rejected application for special leave to the High Court. This Tribunal had to determine whether Mr P has a genuine fear of harm in Albania. Based on a consideration of all the evidence before the Tribunal, it finds that Mr P does not have a genuine fear of harm and the fact that he has continued to assert such false claims to the Australian government and officials over ten years weighs heavily against a finding that Mr P is a person of good character.

56    In that context, it is appropriate to recall also that the applicant was on notice from the first respondent’s SOFIC, and opening submissions at the hearing, that it was being advanced that Mr P was not a witness of credit in relation to his protection claims. Mr P was asked in cross examination whether he accepted that the RRT had found his claims were fabricated and that he did not subjectively fear harm of any type or for any reasons in Albania.

57    As the first respondent submitted, neither Mr P, nor the applicant were said to be a witness to the alleged shooting incident. Mr P’s brother attended the Tribunal hearing and the applicant had the opportunity to call him to give direct evidence about the shooting. She did not do so.

58    Further, as the first respondent submitted, in relation to the incident with Mr P’s father and the police report, the RRT had earlier found that this aspect of Mr P’s claims were not genuine. In cross-examination, the first respondent asked Mr P whether the police report from his father was a fake. The first respondent submitted before the Tribunal that the RRT correctly found Mr P fabricated his claims.

59    In relation to the psychological reports from Albania, it was put to Mr P in cross examination that he had told the doctor his family was with him to strengthen his case. In closing submissions, the first respondent submitted:

If you were trying to convince someone like the Australia government you genuinely feared harm in Albania this is what you would do. You’d create evidence to support that proposition. What would’ve been really useful objective evidence is some independent third party with no connection to this matter saying, “Hey, I actually saw [Mr P] on this day in Albania and I was surprised to see that he was chaperoned by four men” anything like that. The only reason you know you are told the applicant is being chaperoned because he’s saying it.

60    Accordingly, submissions by the applicant about the medical reports were in the context where she was aware that the account that formed the basis of the reports and Mr P’s protection claims more broadly were in issue.

61    As the applicant chose not to make oral submissions on this ground, she did not challenge the correctness of any of the submissions advanced by the first respondent.

62    The applicant was on notice that the matters complained of were live issues. There was an opportunity for the applicant to address them at the hearing.

63    Accordingly, the applicant has not established any procedural unfairness.

Ground 3: The decision was legally unreasonable

64    This ground relates to the passages relied on by the applicant at [166] and [167] of the Tribunal reasons, addressed above. The applicant submitted that the conclusions were legally unreasonable. It was submitted that it was unreasonable to expect EP’s statement to refer to the shooting incident when it was clear his “statement” was simply a support letter giving his opinion as to the genuine relationship between Mr P and the applicant. The first respondent could have summonsed EP to give evidence or indicated that he was required for cross-examination. The applicant also submitted that it was legally unreasonable for the Tribunal to make a finding that the police report was fabricated when there had been no attempt to verify the police report. It was submitted it is common practice for the Minister to seek to have foreign documents authenticated where suspected that they may not be authentic. Further, an allegation that documents have been falsified is a serious allegation to make, and it is unreasonable to make such an allegation without any documentary proof. Finally, it was submitted that it was legally unreasonable for the Tribunal to allow and/or consider the material as per ground 1, and for the Tribunal not to put to the applicant or provide her an opportunity to comment on the material and evidence, as per ground 2.

65    In advancing this ground the applicant relied on the principles of legal unreasonableness, referring, in particular, to Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] and [130] and Minister of Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] and [76].

66    I note also that the threshold for legal unreasonableness is usually high: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [11], [52], [89] and [135]; cited in Minister for Home Affairs v DUA16 [2020] HCA 46; [2020] 95 ALJR 54 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. 

67    It is important to read the Tribunal’s reasons in context. At [167], the Tribunal found:

However, it is noteworthy that Mr EP’s undated written statement, which was taken into evidence in this proceeding, did not mention this incident and there was no other evidence regarding this alleged event, except a written statement of Ms Spano’s migration agent, in which she says Mr EP had reported an ‘attack on himself’.

68    The applicant relied upon only the first part of that sentence. The Tribunal went on to find:

The Tribunal finds this supposed event to be a fabrication, because Mr EP did not refer to this incident in his written statement in this proceeding and because the Tribunal finds it implausible that people firing gunshots at a person in a car on the assumption it was Mr P would then end up talking to the person in the car, not know his identity, but accept that he was not Mr P and let him go unharmed.

69    Again, the applicant relied upon only the first part of that sentence. As explained above, the applicant was on notice that the credibility of Mr P’s claims regarding the shooting incident and the credibility of the police report were live issues given the first respondent’s submissions and the findings of the RRT respectively. Moreover, Mr P and the applicant were also on notice that Mr P’s character was in issue given the notice of intention to consider refusal of his visa application on character grounds; the ministerial direction attached to that notice, which outlined the criteria that must be considered by the delegate; and the decision record of the delegate when refusing the partner visa on character grounds. During the Tribunal hearing, Mr P was cross examined in respect of whether the shooting incident occurred, and the veracity of the police report. Despite that context, the applicant did not advance any evidence in support of the alleged shooting incident except a written statement of Ms Spano’s migration agent. In those circumstances, it was not unreasonable for the Tribunal to note the absence of corroborative evidence regarding the shooting incident. In context, the Tribunal noting the absence of the incident from EP’s statement served to highlight the significance of Mr P not adducing other evidence regarding the incident before the Tribunal. In any event, the Tribunal went on to find that the supposed shooting incident was a fabrication because of the inherent implausibility of the claim.

70    The suggestion that the Tribunal was obligated to conduct further investigation, absent which, it is said its conclusions were unreasonable, cannot be accepted in the context of this case. At [67], the Tribunal did not find that the police report was not an authentic document, rather, that it was a report of an incident that did not occur. Notably, it was not submitted to the Tribunal that it ought to further investigate the police report, despite the applicant being on notice as described above.

71    The conclusions, read in the context of the reasons as a whole, are not legally unreasonable. Moreover, as addressed above, the applicant was on notice of the issues and had opportunity to address them at the hearing.

72    In so far as this ground also relies on the matters which are the subject of grounds 1 and 2, for the reasons already given, those grounds are not established.

73    The applicant has not established this ground.

Ground 4: Adverse findings were made in relation to a statement of support provided by EP and a police report for which he was the complainant in circumstances where the first respondent had not required EP for cross examination

74    This ground also relates to the passage complained of in the preceding grounds regarding EP being shot at. The applicant submitted that the Tribunal fell into jurisdictional error by making an adverse finding in relation to EP’s statement of support and a police report for which he was the complainant, in circumstances where the first respondent had not required EP for cross examination. Given EP was not required for cross-examination, the applicant submitted she was entitled to view this evidence as not being challenged. In that context, it was submitted the Tribunal erred by finding that EP’s claim that he was shot at while driving a car when he visited Albania in 2018, and the police report were both fabrications.

75    This ground proceeds on a false premise that the shooting was unchallenged. As explained above, the applicant was on notice that this was in issue given the first respondent’s submissions and cross examination of Mr P. There is no basis to assert that the applicant was entitled, or more importantly, did assume that the issue was unchallenged such that she did not call evidence. As noted above at [57], in those circumstances it was open to the applicant to call EP to adduce evidence of the shooting incident. Similarly, to the extent this ground refers to the police report made by Mr P’s father (rather than a report in which EP was the complainant, as submitted by the applicant), the same analysis applies. As noted at [58], the applicant was on notice that the veracity of the police report was in issue, and Mr P was cross-examined in this regard.

76    This ground is not established.

Ground 5: The Tribunal denied the applicant procedural fairness by relying upon a decision of the RRT dated 3 September 2012, upon which the first respondent had eschewed reliance

77    To the extent this ground alleges procedural unfairness arising from the Tribunal’s reliance on the decision of the RRT, it is, in effect, the same as the first basis of ground 1. Indeed, the applicant made oral submissions on grounds 1 and 5 together. For the reasons there given, this ground is not established.

78    I note that in so far as the applicant contends in her written submissions procedural unfairness arising from the Minister changing its position in respect to reliance on the content of the RRT decisions between the first Tribunal decision and this Tribunal hearing, this aspect was not advanced or developed in oral submissions, despite oral submissions being made on the ground more broadly. Although the particulars of this ground allege, inter alia, that the first respondent was “estopped” from relying on the content of the RRT decision, she did not advance any submission in support of that assertion, nor any legal basis for it. Nor did she advance that submission in the Tribunal as a basis for objecting to the Tribunal referring to the RRT decision. The same is true of the applicant’s other assertions in the particulars regarding the first respondent being estopped from relying on other matters, not being the RRT decision. I note in this regard that some of the particulars of this ground refer to matters unrelated to the ground of review.

79    Rather, the terms of the ground allege the Tribunal denied the applicant procedural fairness by relying on the RRT decision. Given the applicant accepted that the use of the content of the RRT by the Tribunal was permissible subject to the requisite notice being given so as to provide an opportunity to address the material, it is difficult to understand the basis on which it is said the approach is procedurally unfair. As explained above, the applicant was well on notice that the Tribunal may use the content of the RRT decision.

80    This ground is not established.

Ground 6: the applicant’s questioning at the hearing involved entrapment

81    The applicant submitted that because Mr P’s sworn evidence from the previous Tribunal hearing was already before the Tribunal, it was not necessary for Mr P to be a witness in the later proceedings. It was submitted that at the case management hearing on 1 February 2022, the applicant raised the prospect of Mr P not giving evidence. The first respondent’s representative indicated that the Minister would seek an adverse finding should he not give evidence. The applicant submitted that because of the Minister’s position, and to avoid an adverse finding, Mr P gave evidence. The applicant’s submission is that requiring Mr P to give evidence in order to avoid an adverse finding led to procedural unfairness. She alleges that Mr P was entrapped in a manner that was procedurally unfair by the respondent and the Tribunal unfairly delving into the RRT decision, in circumstance where he expressly based no reliance on that decision.

82    There are a number of flaws with that submission. Most significantly, the applicant was represented by counsel and it was the applicant’s decision that Mr P give evidence. That decision in the circumstances was a matter entirely for the applicant and Mr P. The applicant could have argued to the Tribunal that Mr P did not need to give evidence and that no adverse inference should be drawn. She chose not to take that approach. Further, in so far as the ground suggests that there was unfairness in cross-examining Mr P on the RRT decision because it was not relied on, for the reasons given above, that is plainly incorrect. Mr P was on notice that the content of the RRT decision may be considered. It is also notable that the applicant did not object to this cross-examination. Moreover, in so far as the ground appears to submit unfairness because the applicant did not rely on the RRT decision, that submission is misconceived. The relevance of material to the outcome of the hearing and cross-examination by a respondent is not dependant on the applicant relying on it.

83    This ground is not established.

Ground 7: The decision gave rise to an apprehension of bias

84    This submission contends that the Tribunal emphasised the age difference between Mr P and Ms Spano at [4]-[5] of its reasons. The applicant submitted this was at the beginning of the reasons and these paragraphs gave and continue to give the impression that the age difference took on an unjustified importance in this matter. It was submitted it set the tone for the remainder of the judgment. Further, the reference at [232] that the Tribunal did not question the state of the relationship did not remedy the earlier observation. An appropriately informed, reasonable and fair-minded lay observer would be aware that there are illegitimate pejorative attitudes towards couples with a large age difference, and might apprehend a position of prejudice in the way that the decision had been articulated.

85    The relevant legal principles are uncontroversial: see for example, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [20] – [21].

86    This ground is based on the mere statement of the ages of Ms Spano and Mr P in the part of the reasons that recited the background to the application, nothing more. That is, a statement of objective fact. Nothing in the reasons of the Tribunal provides any support for the applicant’s submission. There is no basis for the submission that a “tone” was set by the reference to the ages. To the contrary, it is plain the Tribunal accepted the relationship as a loving one. The Tribunal found at [191] that Mr P was a loving husband. The passage relied on by the applicant at [232] must be put in its context. The Tribunal found:

Ms Spano has been married to Mr P for almost eight years. She has visited him in Albania 10 times since he was removed from Australia approximately seven years ago, noting that since early 2020 Ms Spano was unable to travel internationally due to the COVID-19 pandemic. Based on the evidence before the Tribunal, it is satisfied that Ms Spano has suffered mental, emotional and financial hardship due to being physically separated from her husband and from the continued uncertainty about the Visa. For the avoidance of doubt, the Tribunal does not dispute the genuine nature of Ms Spano’s relationship with Mr P or the strength of that union. Ms Spano is plainly deeply in love with Mr P and has experienced significant stress at their current situation, including due to the numerous associated Tribunal and court processes.

…

The couple have also lost valuable time together since Mr P left Australia almost eight years ago and their desire to be together will likely impact their living arrangements into the future.

…

This prospective situation would undoubtedly be difficult, but she would have the love and support of her husband were they to live together in Albania. Having regard to all of the relevant factors, the Tribunal is satisfied that a decision not to grant Mr P the Visa would have a significant adverse impact on Ms Spano and finds that this factor weighs heavily in favour of not exercising the discretion to refuse to grant Mr P the Visa.

87    That the applicant chose to refer at the outset of the proceeding to concerns she was said to have had about prejudgment because of the age difference does not advance her case. The test is an objective one.

88    The applicant has not established this ground.

Ground 8: The Tribunal acted in a manner which is legally unreasonable by mischaracterising, and failing to give genuine consideration to, Mr P’s contention that a higher level of satisfaction was necessary before findings of fabrication were made against Mr P, given the severe consequences

89    The applicant submitted that Mr P contended a higher level of satisfaction was necessary before findings of fabrication were made against him, given the severe consequences to Mr P, but that he did not rely upon Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) as identifying a rule of evidence that bound the Tribunal. She submitted that at [189], after recording the submission made, the Tribunal mischaracterised the submission as relating to a rule of evidence, in circumstances where the Tribunal was not bound by the rules of evidence. A genuine consideration of the contention advanced required that before being satisfied as to findings of fabrication against Mr P, the Tribunal take into account the consequences to Mr P. It was said, accordingly, a genuine consideration was not made of the contention, and the Tribunal acted in a manner that was legally unreasonable.

90    The applicant’s submission in opening was this:

… We would like to refer to the decision in Briginshaw v Briginshaw. We note that any decision that would result in Ms Spano not being with her husband would be devastating to her. We submit that in the circumstances where there are serious allegations and severe consequences that a very high standard of proof needs to be established.

We would submit that in this case if the respondent is submitting that Mr Pllumbi has been dishonest about fearing harm, that that would require a very high standard of proof and one that cannot be shown in these circumstances in a country as of anywhere there is a history of blood feuds and revenge killings and people being locked in, and where this occurred some time ago, we would submit that the high standard of proof cannot be reached in this case.

91    Shortly thereafter, the first respondent submitted that Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 266 FCR 555 (Sullivan) at [115] set out the relevant position:

Yes, Member. Can I start with Briginshaw? Could you turn up the case of Sullivan that I sent you yesterday, please, and in particular paragraph 115, and the three dot points in that paragraph. So, the proposition we take from that is that Briginshaw doesn’t apply to the tribunal proceedings. It would be wrong of you to proceed on the basis that the seriousness of any findings I may ask you to make about [P]’s conduct instils some higher threshold on me of proof or some onus of proof. That’s all I need to say about Sullivan.

92     In Sullivan at [115], Flick and Perry JJ said:

The attempt on the part of Mr Sullivan to side-line the fundamental importance of provisions such as ss 2A, 33 and 39 of the Administrative Appeals Tribunal Act — and to shift the focus of attention to the ultimate task of the Tribunal in making the “correct or preferable” decision as to whether it is “satisfied” for the purposes of reg 269(1)(d) of the Civil Aviation Regulations — should be soundly rejected. Such a submission, with respect, fails to recognise that:

•    the rule in Briginshaw is a rule of evidence derived from curial proceedings;

•    the Tribunal is not “bound by the rules of evidence”; and

•    a party to proceedings before the Tribunal has no “onus of proof”, let alone an “onus” to establish facts to any particular or pre-determined standard.

Moreover, the submission fails to also recognise the fact that the procedure of the Tribunal is within its own discretion.

93    The Tribunal at [189] stated:

In addition, it was further submitted on behalf of Ms Spano that any decision that would result in Ms Spano not being with her husband would be devastating to her and that, in circumstances where there are serious allegations and severe consequences, a very high standard of proof needs to be established, including in relation to the Minister’s contention that Mr P has been dishonest about fearing harm. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) was cited. However, the Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [115] stated that the rule in Briginshaw is a rule of evidence derived from curial proceedings; the Tribunal is not bound by the rules of evidence; and a party to proceedings before the Tribunal has no ‘onus of proof’, let alone an ‘onus’ to establish facts to any particular or pre-determined standard.

94    Given the submission advanced by the applicant as recited above, there has been no mischaracterisation. There is no reason to interpret what was being advanced other than that Briginshaw was being relied on in the manner conveyed by the plain meaning of the words used. The submission was not explained in any other way. The Tribunal’s consideration of the submission was based on the plain meaning of its terms. Moreover, it was plainly understood by the first respondent in the same manner, given the reply submission, and reference to Sullivan. During the hearing the applicant never took issue with, or addressed the first respondent’s reference to Sullivan or its submission in reply. That is, there was no submission that the first respondent had misunderstood its submission, and Briginshaw was not being relied on in the manner the first respondent had understood. The approach of the Tribunal was not legally unreasonable.

95    I do not accept there was any mischaracterisation of the submission advanced. The Tribunal considered that submission. It follows the premise of this ground is not established.

96    I note that during the hearing of this application, the applicant referred to Mailau v Minister for Immigration [2023] FCAFC 12 at [94] and [99] to support a submission that since Sullivan there has been a clarification of the issue. I note that at [91]-[93] Colvin and Halley JJ accepted Sullivan for the proposition that the Tribunal is not bound by Briginshaw, and see [55]-[56] per Charlesworth J to the same effect. The Court did not challenge the correctness of Sullivan, and nor did the applicant in this case suggest that Sullivan was wrongly decided.

97    In any event, a reading of the Tribunal’s reasons reflects that in making its decision it well understood, and took into account, the seriousness of the consequences of the decision, and of its findings that led to the decision. A consideration of the reasons as a whole demonstrates that the Tribunal acted with due deliberation and with regard to the serious consequences of the decision in making its factual findings: see for example Sullivan at [94].

98    This ground is not established.

Conclusion

99    For the foregoing reasons I find that each of the grounds of review has not been established. Accordingly, the application is dismissed, with costs.

Associate:

Dated:    28 April 2023