Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 14 April 2022 be set aside and in lieu thereof order that:

(a)    the decision of the second respondent made on 2 August 2017 be quashed;

(b)    the matter be remitted to the second respondent to be decided according to law;

(c)    the first respondent pay 70% of the appellants’ costs of the proceeding before the Federal Circuit and Family Court of Australia (Division 2), to be taxed if not agreed.

3.    The first respondent pay 80% of the appellants’ costs of the appeal, to be taxed if not agreed.

4.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    The appellants appeal against the decision of the primary judge dismissing their application for judicial review of a decision of the second respondent (the Tribunal) dated 2 August 2017 affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant Partner (Temporary) (Class UK) visas to the appellants under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The first appellant (to whom I will refer, for simplicity, as the appellant) is a Vietnamese national. She applied for a partner visa on the basis of her relationship with the sponsor, who is an Australian citizen. The sponsor and the appellant married in December 2013. The appellant and the sponsor met in about February 2012 and began living together in April 2013. At that time, the appellant was still married to an individual I will refer to as her former, or ex-husband (including when referring to events prior to their divorce). Their divorce was finalised in August 2013. The appellant and her ex-husband had one child, and the appellant had a second child in early January 2014. The second child was fathered by the ex-husband when he and the appellant had a one-off sexual encounter in March 2013 when he was apparently seeking to persuade the appellant to reconcile with him.

3    The one-off encounter between the appellant and her ex-husband during the early period of her relationship with the sponsor, and the way in which that matter arose in, and was handled by, the Tribunal, was the focus of Ground 1 of the appeal.

4    The two children of the first appellant are the second and third appellants. They did not advance any independent claims or submissions before the Tribunal, before the primary judge or on appeal to this court.

5    The delegate decided not the grant the appellant and her children partner visas on 11 November 2015. They sought review of the decision before the Tribunal. A hearing was held on 21 April 2017 at which the Tribunal asked questions, separately, of the appellant and the sponsor through an interpreter.

6    On 2 August 2017, the Tribunal issued its decision affirming the delegate’s decision not to grant the visas. The Tribunal issued written reasons (TR). The appellants filed an application seeking judicial review on 1 September 2017 in the Federal Circuit Court of Australia (as it was then known). A hearing was held on 26 November 2021 and, on 14 April 2022, the primary judge dismissed the application: Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 266 (PJ). The appellants then appealed to this court on 12 May 2022.

7    The appellant’s notice of appeal advanced two grounds as follows:

The primary Judge erred in respect of findings made relating to the following two grounds of appeal;

1.    the Tribunal failed to notify the appellant of an issue in the review, being the Tribunal’s expectations to hear evidence about the sponsor’s emotional reconciliation to the appellant’s infidelity.

2.     the Tribunal failed to consider important evidence, being:

a.     Evidence that the sponsor was an emergency contact at the children’s school, contrary to the Tribunal’s belief to the opposite.

b.     Evidence that the sponsor had persuaded the appellant not to have an abortion, despite her wish to do so.

c.     Evidence of the sexual relationship between the appellant and the sponsor.

8    Struck-through elements of Ground 2 were abandoned by the appellant in her written submissions.

Ground 1

Proceedings before the Tribunal and the parties’ submissions

9    Despite having framed the first ground of appeal in terms of the “sponsor’s emotional reconciliation” and having made written submissions to the effect that the Tribunal expected evidence about the “emotional processes leading to him forgiving his wife”, counsel for the appellant recast the issue in the course of oral submissions as being the issue identified in the relevant parts of TR [57] and [60]. There, the Tribunal made the following observations:

57.     … The Tribunal finds it implausible that the sponsor would not have initially at least had some doubts about the applicant’s commitment to him and whether the applicant might still not be in a relationship with her former husband. …

60.     The Tribunal reiterates that this decision does not turn on the fact that the sponsor is not the biological father of the applicant’s children. The Tribunal’s concerns rest with the fact that the event has been airbrushed from the parties’ narrative and the Tribunal is not convinced that the birth of a child to a former husband during the establishment of another relationship is not something that can simply be dismissed as having little impact on the relationship with the sponsor.

10    The appellant highlighted that, as is apparent from the first sentence of TR [60], the Tribunal firmly stated that it placed no adverse weight on the fact that the appellant had a one-off sexual encounter with her former husband; in other words, it was not the infidelity per se that the Tribunal placed weight on. The point was stated expressly and more fully by the Tribunal at TR [56]:

The Tribunal places no adverse weight on the fact that the applicant may have had an encounter with her ex-husband even though she was about to enter into a de facto partnership with the sponsor, after all the applicant and her former partner were not technically divorced until August 2013. A one off encounter such as the one described by the applicant is entirely plausible.

11    Relying on these passages where the Tribunal stated what the issue was not, the appellant submitted that the primary judge mischaracterised the issue in her reasons. The primary judge said (at PJ [45]–[46]):

In the present case, when regard is had to the Tribunal’s reasons as a whole, as well as the conduct of the review and hearing, I do not accept the applicants’ submission that the Tribunal erred by failing to put the applicants on notice that the sponsor’s emotional reconciliation to the first applicant’s infidelity was a dispositive issue in the review.

In my view, the issue about which the Tribunal needed to put the applicants on notice was that the first applicant’s encounter with her previous husband at the commencement of her relationship with the sponsor, which resulted in the birth of a child, might cause the Tribunal to have doubts about the nature of her claimed relationship with the sponsor, and in particular, the nature of the commitment.

12    The appellant contended that the issue was of sufficient importance that it was one which the Tribunal was obliged to raise with the appellant and that the Tribunal’s failure to accord procedural fairness in relation to that issue was material such that she should obtain the relief sought.

13    The appellant submitted that the Tribunal’s reasons disclosed that the documentary evidence put forward by the appellant and her sponsor was not conclusive against them, or so weighted against them that they could not have overcome the deficiencies identified by the Tribunal. She submitted that the Tribunal’s reasons did not go so far as to indicate a negative response to each piece of documentary evidence. For example, the appellant contended that the Tribunal’s assessment of the financial aspects of the appellant and sponsor’s relationship was that the evidence “pointed both ways”. The appellant also submitted that, on balance, the Tribunal’s assessment of the nature of the household pointed in the appellant’s favour, and its assessment of the evidence of the social aspects of the relationship acknowledged some evidence in favour of the appellant’s case, although the level of support was muted.

14    The appellant further submitted that the Tribunal’s ultimate conclusion on the nature of the persons’ commitment to each other, which was expressed at TR [61], is to be understood as having been reached on the basis of the matters referred to in the previous paragraphs. The conclusion stated at TR [61] was adverse to the appellant, and incorporated a conclusion that the Tribunal was not satisfied that the appellant and sponsor lived together in the relevant sense of sharing a life together, rather than merely living at the same address.

15    Reiterating her submission that the documentary evidence was not conclusive and the Tribunal’s assessment included points going both ways, the appellant submitted that, in the circumstances, had the issue in question been squarely raised by the Tribunal, there was a realistic chance that the Tribunal might not have reached adverse conclusions on the nature of the appellant and sponsor’s commitment to each other and there was a chance that the appellant could have succeeded before the Tribunal.

16    In his written submissions, counsel for the Minister said as follows in relation to how the issue was to be characterised:

The Minister submits that the primary judge was correct to find that the relevant issue was that the appellant’s encounter with her previous husband, which resulted in the birth of a child, at the commencement of her relationship with the sponsor, might cause the Tribunal to have doubts about the nature of her claimed relationship with the sponsor … Emotional reconciliation was, conceivably at least, a factual matter relevant to that issue. But the Tribunal was only required to inform the appellant of the issue, not each fact that related to it [the Minister here cited SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] (Bennett J) in support].

17    In oral submissions, however, counsel for the Minister accepted that, if I concluded that the issue as articulated by the Minister in another part of his written submissions had not been raised by the Tribunal, the appellant would necessarily succeed. The Minister conceded that the issue as there framed was not one which could be dismissed on the basis that it was not substantial.

18    The Minister framed the issue as follows at that second point in his written submissions (emphasis in original):

Properly understood, the Tribunal was not concerned with the lack of evidence about the process or journey of forgiveness which the sponsor undertook. Rather, the Tribunal was concerned by the fact that the infidelity did not seem to trouble the sponsor at the time. In other words, why did the affair ever not cause the sponsor real concern?

19    The Minister submitted that the appellant was on notice of the issue as framed and relied, in particular, on the following questions the Tribunal asked of the appellant, as recorded in the transcript:

Well, you couldn’t have been in a mutual — in a mutual commitment with Mr Nguyen [the sponsor] then if you were trying to reconcile with your former husband?

…

So you were already engaged, committed to be in an exclusive relationship with Mr Nguyen but you were also trying to reconcile with your ex-husband?

…

He wasn’t angry?

…

See I’m trying to establish that the relationship with the former husband — was ceased — when you were in a claimed genuine, and continuing relationship.

20    The Minister also relied on the transcript where the Tribunal put the following propositions to the sponsor:

Your wife had a child with another man while you were engaged to her.

…

But you’re already engaged. That doesn’t show she was committed to you.

21    I return to these passages of the transcript, and their fuller context, below.

22    The Minister also submitted that, as the duty of procedural fairness was owed to the appellant, it was sufficient that the issue was raised with her and submitted that it did not need to be separately raised by the Tribunal with the sponsor. The Minister relied, in this respect, on s 358 of the Act on the basis that, the issue having been raised with the appellant, she could have put further evidence before the Tribunal after the hearing.

23    In reply, the appellant submitted that the failure to accord procedural fairness was not answered by pointing to the appellant having an opportunity to submit further material to the Tribunal after the conclusion of the hearing pursuant to s 358. Rather, the appellant submitted that s 360 requires a hearing on all issues. In support of her position, the appellant relied on Bromberg J’s observation in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (ABV16) at [21] that new issues arising after a Tribunal hearing would generate new obligations on the Tribunal to hold subsequent hearings. The appellant further referred to SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 (SZHKA), in which the applicants had successfully sought judicial review of an adverse decision made by the Refugee Review Tribunal (RRT). The original decision was quashed and the matter remitted to the RRT for reconsideration according to law. By the time of the second RRT decision, new issues had emerged, and the Full Court held that the second RRT member should have invited the applicants to participate in a further hearing: see SZHKA at [2] (Gray J, with whom Gyles J generally agreed), [106]–[108], [111]–[116] (Besanko J). The appellant reiterated, by reference to SZHKA, that the opportunity to submit further evidence to the Tribunal after a hearing does not obviate the Tribunal’s obligation to hear an applicant on all issues.

Consideration

24    In determining what procedural fairness requires in any given case, “the guiding principle is one of fairness”: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 at [28] (Allsop J, with whom Gyles and Conti JJ agreed); see also BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [162] (Besanko J); ABV16 at [16] (Bromberg J). It is “practical injustice” that is to be avoided: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ).

25    The practical content of procedural fairness in any particular case is informed by the statutory context, both as concerns the nature and procedures of the decision-maker (here the Tribunal) and as concerns the substantive legal matters governing the decision-making in question.

26    Here, the Tribunal was required to comply, inter alia, with s 360 of the Act, which provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review” (emphasis added). This obligation has long formed part of the review scheme set out in the Act, and does not operate on a “once and for all” basis. If new issues arise after a Tribunal hearing, a further hearing must be convened: ABV16 at [21] (Bromberg J); SZHKA at [103] (Besanko J).

27    Of course, issues may not just emerge after a hearing, but may also emerge during the course of a Tribunal hearing. In SZHKA, Gray J said as follows at [7] (emphasis added, Gyles J generally agreeing):

First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL [v Minister for Immigration and Multicultural and Indigenous Affairs (2006)] 228 CLR 152 at [38]–[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

28    I agree with these observations.

29    Issues which emerge during a hearing are also subject to the obligation imposed by s 360 of the Act. It may well be possible for some such issues to be addressed during the same hearing, but whether that is so will depend on the facts of the case.

30    It was common ground that it was not incumbent on the Tribunal to put the appellant on notice of issues that arise directly from the governing legislation. Here, s 5F(2) of the Act provides as follows:

(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 husband and wife 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.

31    Pursuant to s 5F(3), regulations were made which, inter alia, provided for various circumstances, all of which “must” be considered in relation to the consideration of applications for certain visa classes: reg 1.15A(2) of the Migration Regulations 1994 (Cth) (the Regulations). Those considerations were set out in reg 1.15A(3) as follows:

(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.

32    Each of those matters is a mandatory relevant consideration upon which the Tribunal was required to make findings: He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [76]–[77] (Siopis, Kerr and Rangiah JJ).

33    However, it is also clear that issues may arise below the level of the “headline” items specifically mentioned in the governing legislative provisions and regulations. For example, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) observed, at [39], that if issues are characterised at too high a level of generality, virtually every aspect of an applicant’s claim would already be “in issue”. Their Honours put the point this way:

If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision. But if the issues are to be identified more particularly, other questions arise.

(emphasis in original)

34    In SZBEL, the Tribunal failed to raise any concerns during the appellant’s hearing about two of three events which it later found to be “implausible”. Only one of the three events had been rejected by the delegate. The delegate made no mention at all of the appellant’s account of the other two. As the High Court noted (at [3]) in introducing the issues, “the first that the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision”. Procedural fairness in that case required the Tribunal raise with the applicant the two aspects of his account not already put in issue by the delegate’s decision as they were “live issues”: at [43].

35    The way in which matters come before the Tribunal, and are addressed by it, is also important in informing the content of the duty of procedural fairness in the present circumstances. While the Act is frequently amended, the features of the statutory scheme to which the High Court referred in SZBEL (at [36]) continued to apply at the relevant time:

It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

36    As the High Court pointed out, unless the Tribunal alerts an applicant to a basis upon which the Tribunal is unpersuaded that does not appear from the delegate’s decision, the applicant will be none the wiser and practically unable to address it.

37    While I accept the appellant’s submission that focusing overly on characterising the “issue” can distract from the focus on practical injustice and what fairness requires, at the end of the day, it is still necessary to identify just what it was that the Tribunal was concerned with, but did not raise with the appellant.

38    The Tribunal structured its reasons by reference to each of the four headline matters in reg 1.15A(3): the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

39    In relation to the financial aspects of the relationship, the Tribunal went through the evidence and concluded that, overall, it placed “only a minimum of weight on the evidence that has been submitted in regard to how the parties might have financial and legal obligations to one another and the day-to-day sharing of household expenses for a family unit”: at TR [31]. Similarly, in relation to the nature of the household, the Tribunal addressed the evidence and concluded that “[o]verall, the Tribunal places some weight on the evidence provided to show that the parties live as a family and have realistic joint responsibility for care and support of the children and that they both take care of the household’s expenses together”: at TR [41].

40    In addressing the social aspects of the relationship, in the course of its consideration of the evidence, the Tribunal referred more than once to the initial infidelity. The following passages are relevant (emphasis added):

45.     At the time of application the parties submitted a statutory declaration from the partner of the applicant’s sister who resided at the same address as her former husband. The applicant’s sister’s partner states that the parties had been living together in a genuine relationship but does little to detail the occasions he might have been in contact with the parties and how they resided as a family. Importantly, the declaration makes no mention of how the sponsor reconciled himself to the fact that the applicant had been unfaithful to him but decided in any event to go through with the marriage, even though he notes that the sponsor has built “a very lovely strong relationship with [the applicant] and her son”.

46.     In addition Mr Van Coi Dang whose home the sponsor and applicant attended for a party when they met in February 2012, provided a statutory declaration asserting he witnessed the depth of their relationship; the time they spent together; their happiness and interactions with each other. Van Coi Dang provides little realistic insight, however, about how the relationship between the parties overcame the applicant’s intimacy with her former husband during the engagement to the sponsor, and how the sponsor realistically came to accept responsibility for both children of the applicant’s former husband.

47.    The Tribunal places limited weight on these declarations.

41    The Tribunal then referred to a statutory declaration submitted by the appellant’s aunt after the hearing. The Tribunal again discounted the statement due to the failure to address the appellant’s initial infidelity. The Tribunal stated (at TR [49]; emphasis added):

The Tribunal places some weight on the declaration but notes that the writer appears somewhat distant and is consistent with the aunt not having actually attended the wedding ceremony at the civil office. Given the event involving the applicant having had an intimate relationship with her ex-husband during the course of her relationship with the applicant, and just as she was entering into a de facto partnership with the sponsor, the Tribunal would have thought that the applicant’s aunt would have been able to provide detail about how the sponsor made a conscious decision to continue to remain in the relationship.

42    A statement by the applicant’s sister was also referred to, and the Tribunal then concluded (at TR [51]; emphasis added):

The Tribunal places some weight in favour of the applicant on these declarations despite the limited insight into the workings of the parties’ relationship given the applicant had had an indiscretion with her former husband while married to the sponsor.

43    While perhaps not directly relevant, I note that, contrary to the Tribunal’s statements, the appellant was neither engaged to, nor married to, the sponsor when the one-off sexual encounter occurred (cf TR [46] and [51]).

44    The Tribunal’s overall conclusion on the social aspects of the relationship was as follows (at TR [55]):

[T]he Tribunal considers that the muted support for the relationship by family members and their limited understanding of its trajectory, raises concerns for the Tribunal that the relationship may have been entered into for the sole purpose of the applicants gaining a migration outcome.

45    I pause here to note that it is clear from the above passages that the Tribunal expressly discounted the weight to be placed on the statements of evidence adduced by the appellant as to the “social aspects of the relationship” on the basis that they did not address how the appellant and sponsor’s relationship developed in the face of her early infidelity. As such, the failure of the evidence of the appellant to address that issue was a material factor in the Tribunal’s overall conclusion on the social aspects of the relationship, and did not only have an impact on its assessment of the nature of the appellant and the sponsor’s commitment to one another.

46    Turning, then, to the “nature of the persons’ commitment to each other”, as noted above, the Tribunal stated expressly (at TR [56] and [60]) that it did not consider the infidelity per se to weigh against the appellant.

47    In this section of its reasons, the Tribunal addressed other aspects of the evidence and made some positive remarks about some of that evidence, and negative remarks about other aspects. The Tribunal returned, at two points, to the significance of the initial infidelity and its impact on the Tribunal’s view of the nature of the commitment of the appellant and the sponsor to each other. The Tribunal said (at TR [57] and [60]; emphasis added):

57.     When the Tribunal queried the sponsor, however, about how he had felt about the applicant’s pregnancy and why he had pursued the relationship in the circumstances, he repeated that he understood her situation. The Tribunal finds it implausible that the sponsor would not have initially at least had some doubts about the applicant’s commitment to him and whether the applicant might still not be in a relationship with her former husband. His reasoning for having decided to pursue his relationship with the applicant. Indeed the Tribunal has concerns as to the extent that the applicant has ceased her communications with her former partner. …

60.     The Tribunal reiterates that this decision does not turn on the fact that the sponsor is not the biological father of the applicant’s children. The Tribunal’s concerns rest with the fact that the event has been airbrushed from the parties’ narrative and the Tribunal is not convinced that the birth of a child to a former husband during the establishment of another relationship is not something that can simply be dismissed as having little impact on the relationship with the sponsor.

48    In my view, it is clear from the Tribunal’s reasons that it took the view that the failure to grapple with the significance of the initial infidelity, how it affected their relationship, and how the appellant and sponsor developed a relationship given the initial infidelity in the early days of their relationship, was a significant contributing factor to the Tribunal’s conclusion (at TR [61]) that it was not satisfied that the appellant and sponsor had “a mutual commitment to a shared life to the exclusion of others” and “that their relationship is genuine and continuing”. It was, as I have already explained, also a material contributing factor to the Tribunal’s assessment of the evidence concerning the social aspects of the relationship between the appellant and the sponsor.

49    It is also apparent from an incomplete sentence at TR [57] that the Tribunal considered that the formation and development of their relationship called for an explanation, given the appellant’s sexual encounter with her ex-husband. Immediately after stating that the Tribunal found it implausible that the Tribunal would not have initially at least had some doubts about the appellant’s commitment to the sponsor and whether the applicant might still not have been in a relationship with her former husband, the Tribunal went on to say, “[h]is [the sponsor’s] reasoning for having decided to pursue his relationship with the applicant”, but the sentence is incomplete. That incomplete sentence reinforces that the sponsor’s “reasoning” for continuing with the relationship in those circumstances was a matter that the Tribunal considered to be relevant. As the sentence is incomplete, it is, of course, not possible to know what the Tribunal intended to say about that reasoning, but the point remains that the reasoning was considered a relevant matter and the Tribunal went on to conclude (at TR [60]) that the event had been “airbrushed from the parties’ narrative”.

50    Clearly, the matters referred to were material; they were not insignificant to the Tribunal’s assessment of two of the four categories of matters to be considered pursuant to reg 1.15A(3). The Minister accepted that the issue as he had framed it in his written submissions was a substantial issue. As noted above, the Minister conceded that if the appellant was not put on notice of the issue as the Minister had characterised it, the appellant’s case must succeed. While, as I will come to, I frame the issue somewhat differently from the way in which the Minister framed it in his written submissions, it remains the case that the Minister did not resist the relief sought by the appellant on the basis that the issue, however ultimately framed, was insignificant (or that any failure to accord procedural fairness was not material). Rather, the Minister ran his case on the basis that the issue was sufficiently brought to the attention of the appellant.

51    To the extent that it is necessary to characterise “the issue” in order to determine whether it was raised by the Tribunal, or the appellant was otherwise on notice of it, I characterise the issue as follows: the lack of evidence as to how the appellant and the sponsor developed their relationship and had a relationship with the necessary characteristics when, early in their relationship, the appellant had a one-off sexual encounter with her former husband and fell pregnant to him. I will refer to this as the issue, to avoid repetition. It follows from what I have said that I do not accept the Minister’s more limited characterisation of what should be regarded as the relevant issue as accurately capturing just what the Tribunal was concerned with.

52    The issue was not raised by the delegate’s decision. After addressing other matters, the delegate stated as follows (emphasis in bold added):

Nature of the Persons’ Commitment to each other

In assessing the nature of your commitment to each other, I have considered the circumstances of your meeting, relationship development, length of time you have lived together, the degree of companionship and emotional support that you draw from each other and whether you see the relationship as a long-term one.

You and your sponsor provided the following evidence regarding your mutual commitment to each other:

•    Personal statements

•    Marriage Certificate

•    Forms 888 Statutory declarations from Mr […] and Mr […]

•    Electricity and gas bills

•    Selected photographs

I accept that you and your sponsor are legally married as you provided a marriage certificate. However, there is no evidence to demonstrate that you see this relationship as a long-term one, that you draw emotional support and companionship from each other or that you have committed to a shared life together.

I have considered your migration history. You arrived in Australia on 9/6/2009 as the dependant spouse of your former husband, who held a student TU-573 Higher Education Sector visa. On March 2013 you claimed that your relationship with your previous partner ended and that one month later you commenced a defacto relationship with your current sponsor. You then married on 21/12/2013 and on 2/1/2014 you gave birth to your second child, whom was fathered by your previous husband as evidenced by the child’s birth certificate.

Based on your migration history and the limited evidence provided, there appears to be a strong possibility that you lack commitment to your current marital relationship and that you are taking advantage of the Australian citizen sponsor in order to secure migration into Australia for you and your two dependent children.

I am not satisfied that you and your sponsor have a mutual commitment to a shared life to the exclusion of all others, and that you see the relationship as a long term one. I have drawn the conclusion that you may still be in a relationship with your previous partner.

53    Coming in to the Tribunal hearing, it would have been clear to the appellant that the delegate found against her on bases which included the conclusion that she was still in a relationship with her former husband. However, the delegate’s reasons did not raise the issue as I have characterised it, or anything substantially similar. Neither the bare statement of the date of birth of the second child and that the child’s father was the appellant’s husband, nor the delegate’s conclusion that the appellant might still be in a relationship with her former husband, put the appellant on notice of the issue in question.

54    Nor is the issue raised by the relevant legislative or regulatory provisions (s 5F of the Act, and reg 1.15A(3) of the Regulations). While the issue goes to (at least) the matter raised by reg 1.15A(3)(d) — the nature of the persons’ commitment to each other — identifying the legislative place in which an issue fits is not the same as raising the issue itself (as is clear from the High Court’s judgment in SZBEL referred to above).

55    The primary judge referred (at PJ [36(a)]) to correspondence sent out by the Tribunal. That correspondence only relevantly referred to the “nature of each person’s commitment to the relationship”, which does not do more than paraphrase aspects of s 5F(2) and reg 1.15A(3).

56    That leaves what occurred during the hearing.

57    The Tribunal raised the question of the paternity of the second child with the appellant. The Tribunal sought confirmation that the child was the sponsor’s child, which the appellant corrected, stating the child was her ex-husband’s. The Tribunal then sought an explanation as follows:

MS GAGLIARDI: So you met Mr Nguyen in 2012 but in 2014 you were having a child with your ex-husband — someone you say was beating you and treated you very badly. Do you want to explain that to me?

INTERPRETER: Yes. Yes, at the time my ex-husband was visiting us too and he told — and then he tried to convince me and try — attempt to reconcile with me. And then I felt — um — because I am a woman so I felt a little bit like convinced and then we slept with each other and then I was pregnant.

MS GAGLIARDI: Mm. Well, you couldn’t have been in a mutual — in a mutual commitment with Mr Nguyen then if you were trying to reconcile with your former husband.

58    The matter raised by the Tribunal in the final paragraph quoted above, which is relied on by the Minister, directed the appellant’s attention to the impact of attempts at reconciliation with her first husband on whether the appellant and the sponsor had a mutual commitment at that time. As such, the passage did not direct attention to the issue in question, which necessarily went to the nature of the appellant and sponsor’s relationship at the time the matter was before the Tribunal and how their relationship developed in view of the early infidelity.

59    The questioning of the appellant continued after the passage quoted above. The Tribunal asked when the appellant became engaged to the sponsor. The answer was 19 August 2013. The Tribunal then continued as follows:

MS GAGLIARDI: So you were already engaged, committed to be in an exclusive relationship with Mr Nguyen but you were also trying to reconcile with your ex-husband?

INTERPRETER: Yes. At that time I was pregnant already and then my husband advised me that whatever the child belongs to — whatever the father of the child is that he’s to keep the child.

MS GAGLIARDI: He wasn’t angry?

INTERPRETER: At that time I was pregnant after my husband have move into live with me for two months and because I was very honest to him so he has forgiven me for that doing.

60    The Tribunal did not ask any follow-up questions, but immediately moved to questioning the appellant on her former husband’s whereabouts, suggesting she was lying about not knowing where he was because “you were engaged in a relationship with him”. No point was taken on appeal with this characterisation of the one-off sexual encounter.

61    The Minister relied on each of the two questions of the Tribunal quoted in the exchange above at [59] as having raised the necessary issue with the appellant.

62    The first question asked by the Tribunal does not assist as it contains a material misstatement of the timeline. Contrary to the premise of the Tribunal’s question, the appellant was not engaged to the sponsor at the time of the one-off sexual encounter. Further and in any event, the question was directed to the nature of her relationship with the sponsor at the time of the one-off encounter, and not the issue in question, as it affected the Tribunal’s assessment of their relationship at the time the matter was before it.

63    As to the second question — “He wasn’t angry?” — while I accept that the sponsor’s emotional reaction at the time was raised with the appellant, I do not consider this question, in the context of the questioning occurring (including the topic to which the Tribunal immediately turned), fairly put the appellant on notice of the nature of the issue.

64    The final part of the transcript of the Tribunal’s questioning of the appellant on which the Minister relied was the following:

MS GAGLIARDI: See I’m trying to establish that the relationship with the former husband — was ceased — when you were in a claimed genuine, and continuing relationship.

65    By its terms, that question was directed to when the appellant’s relationship with her former husband had ceased, and not the issue in question. The questioning that preceded and followed the quoted remark of the Tribunal concerned where the appellant was living at relevant points in time, and who she was living with.

66    I turn, then, to the questioning of the sponsor. It was common ground that:

(a)    the sponsor was not present in the Tribunal hearing room when the Tribunal asked questions of the appellant; and

(b)    the appellant did not have an opportunity to ask questions of the sponsor during the hearing before the Tribunal.

67    In the course of the Tribunal’s questioning of the sponsor, the following exchange took place (emphasis added):

MS GAGLIARDI: All right. I’ll call your husband in now, thanks. Thanks, Mr Nguyen.

MR NGUYEN: Yes.

MS GAGLIARDI: Okay. Mr Nguyen, where is this lady’s ex-husband?

INTERPRETER: No.

MS GAGLIARDI: You don’t know?

INTERPRETER: No.

MS GAGLIARDI: Okay. Well, your wife was obviously in some kind of relationship with him until April 2013 it would seem.

INTERPRETER: Can you say it again?

MS GAGLIARDI: All right. Your wife had a child with another man while you were engaged to her.

INTERPRETER: So that they — her ex-husband just went to visit his children and I don’t know — I don’t really know if their relationship is going. So it seems I came to move into live with her. So I got to know about her by then — her pregnant — and then I thought it just an accident. So I — and then I — I felt for her and then I understand her circumstances. He — she told me that she wanted to abort the child but I wouldn’t agree.

MS GAGLIARDI: But you’re already engaged. That doesn’t show she was committed to you.

INTERPRETER: We got to know each other in January 2012 and we, and then after that we — we loved each other and then we lived together since April 2013 and in December 2013 we signed the marriage certificate.

68    The Minister relied on the statements highlighted in bold as putting the appellant on notice of the relevant issue.

69    The first and second statements do not, in my view, raise the relevant issue. First, the statements occurred in the context of the Tribunal raising the question of the current whereabouts of the appellant’s ex-husband. As is clear from preceding parts of the transcript, the Tribunal was minded to think that the relationship between the appellant and the sponsor was for show and to obtain a visa, when the appellant was really still in a relationship with her former husband. Isolated sentences cannot be taken out of context. This statement was a follow-up observation related to that topic, not the relevant issue. Secondly, the first statement is also factually incorrect, as the conception occurred in March 2013. Thirdly, the statements go to the status of the appellant and sponsor’s relationship in March–April 2013. There was nothing in the Tribunal’s statements which raised the issue in question. That issue necessarily extended to how that history might affect the Tribunal’s assessment of their relationship at the time the matter was before the Tribunal.

70    Assessed as a whole, there was nothing in the Tribunal’s questioning of the appellant or the sponsor which put them on notice of the relevant issue.

71    Further, to the extent that the issue was raised with the appellant (contrary to my findings above), the appellant had no meaningful opportunity to deal with it during the hearing before the Tribunal. Nor, contrary to the Minister’s submission, is it sufficient that s 358 permits an applicant before the Tribunal to submit additional material after the hearing.

72    Here, at most, the Tribunal touched indirectly on the relevant issue. To the extent it was raised at all, it was not an issue that the appellant had a fair chance to deal with during the hearing. Nor, given the obligations imposed by s 360, was the issue one where a charge of procedural unfairness may be answered by pointing to the ability of an applicant to submit further material to the Tribunal after a hearing.

73    It was incumbent on the Tribunal to raise the issue squarely with the appellant. It did not. That worked a practical injustice on the appellant. The appellant did not have a reasonable opportunity to address an issue that, as the Tribunal’s reasons show, was of significance to the Tribunal’s decision. The failure to accord procedural fairness was material, and the matter must be remitted to the Tribunal. In my view, the primary judge erred in concluding to the contrary.

Ground 2

74    Ground 2 of the Notice of Appeal stated as follows:

2.     [T]he Tribunal failed to consider important evidence, being:

a.     Evidence that the sponsor was an emergency contact at the children’s school, contrary to the Tribunal’s belief to the opposite.

b.     Evidence that the sponsor had persuaded the appellant not to have an abortion, despite her wish to do so.

c.     Evidence of the sexual relationship between the appellant and the sponsor.

75    The only aspect that was pressed concerned the evidence that the sponsor had persuaded the appellant not to have an abortion.

The evidence

76    The way in which the evidence concerning the appellant’s initial intention to have an abortion emerged was as follows (emphasis added):

MS GAGLIARDI: Okay. Well, your wife was obviously in some kind of relationship with him until April 2013 it would seem.

INTERPRETER: Can you say it again?

MS GAGLIARDI: All right. Your wife had a child with another man while you were engaged to her.

INTERPRETER: So that they — her ex-husband just went to visit his children and I don’t know — I don’t really know if their relationship is going. So it seems I came to move into live with her. So I got to know about her by then — her pregnant — and then I thought it just an accident. So I — and then I — I felt for her and then I understand her circumstances. He — she told me that she wanted to abort the child but I wouldn’t agree.

MS GAGLIARDI: But you’re already engaged. That doesn’t show she was committed to you.

INTERPRETER: We got to know each other in January 2012 and we, and then after that we — we loved each other and then we lived together since April 2013 and in December 2013 we signed the marriage certificate.

77    The matter of the intended abortion was not referred to by the Tribunal in its reasons.

The parties’ submissions

78    The appellant contended that the evidence was relevant to regs 1.15A(3)(d)(iii) and (iv) and

had to be considered expressly and addressed in terms in the reasons lest it be inferred that it was not considered (“consider” has a legal meaning, greater than “be aware of” or “not ignore” and the degree of effort depends on the quality of the information). [The appellant cited Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ) in support.]

79    It should be recalled that reg 1.15A(3)(d) refers to “the nature of the persons’ commitment to each other”, including the matters referred to in sub-regs (i)–(iv). Regulations 1.15A(3)(d)(iii) and (iv) refer to the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long-term one.

80    The appellant contended that the evidence was significant in relation to the sponsor’s “emotional reconciliation” to the appellant’s infidelity and also demonstrated the appellant’s remorse on the basis that she regretted the infidelity sufficiently that she wished to terminate the resulting pregnancy. The appellant submitted that the evidence was sufficiently important to consideration of reg 1.15A(3)(d) — even a “stunning piece of evidence” — that its omission from the Tribunal’s reasons is indicative of it not having been considered.

81    The Minister contended that the evidence was not a substantial, clearly articulated claim which the Tribunal was obliged to consider. Rather, it was a passing reference made, for the first time, at the hearing, which was devoid of any context that would shed light on the nature of the commitment of the appellant and the sponsor to one another. The Minister noted that the sponsor may have sought to dissuade the appellant from aborting her pregnancy for any number of reasons, which may not have had anything to do with the nature of his commitment to her or the prospective child. The Minister reinforced this point on the basis that, despite the appellant being represented by an experienced migration agent, the abortion point was not mentioned at all in the appellant’s materials. The Minister submitted that the primary judge was correct to find (at PJ [69]–[70]) that the statement was not sufficiently cogent or important to the appellant’s case that a failure to consider it would give rise to jurisdictional error.

82    The Minister further contended that the better inference was that, rather than overlooking it, the Tribunal did not consider the evidence sufficiently important to warrant express reference in its reasons. This submission was advanced on the basis that (as advanced in relation to Ground 1) the process of emotional reconciliation was not material to the Tribunal’s conclusions, as the Tribunal was not concerned with that reconciliation, but why the affair did not seem to be a matter of any importance.

Consideration

83    In my view, Ground 2 of the appeal must be dismissed.

84    Pursuant to regs 1.15A(3)(d)(iii)–(iv), the Tribunal was required to consider the nature of the appellant and the sponsor’s “commitment to each other”, including “the degree of companionship and emotional support” that they “draw from each other” and whether they “see the relationship as a long-term one”. The appellant accepted that these matters were to be considered by the Tribunal at the time the case was before it.

85    The Tribunal was obliged to set out its findings of fact on matters which it considered material; it is not obliged to make findings on matters that it does not consider material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [35] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed). Therefore, it cannot be assumed that every piece of evidence not mentioned by the Tribunal was not considered by it at all. There is a distinction between an omission that indicates that a tribunal did not consider the evidence to be material to the applicant’s claims, and an omission indicating that the tribunal failed to consider a matter that is material: ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 at [13]–[14] (Bell, Keane and Gordon JJ).

86    It was common ground between the parties that the question of whether or not the Tribunal erred in not referring to the evidence about the potential abortion depended on the significance of that evidence, having regard to the way in which the appellant advanced her case before the Tribunal.

87    The appellant did not present her case to the Tribunal in a way that linked the sponsor not agreeing to the appellant’s suggestion that she would abort the pregnancy in March or April 2013 to the state of the relationship between them when the matter was before the Tribunal in 2017. It was, as the Minister submitted, not a part of the case advanced to the Tribunal before the hearing, and was referred to only in passing by the sponsor in answering a question from the Tribunal. There was nothing in that evidence of significance to the way in which the appellant put her case to the Tribunal, which required the Tribunal to address that evidence specifically. Nor, given the temporal gap between the time when the potential for the abortion was raised (March or April 2013) and the time of the Tribunal’s assessment of the then-current characteristics of their relationship (2017), was that evidence of obvious significance to the matters set out in reg 1.15A(3)(d) that the Tribunal was obliged to consider.

88    The primary judge did not err in concluding (at PJ [69]) that, even if the Tribunal overlooked the evidence, taking into account the way the evidence was presented in the context of the appellant’s overall case, it was not sufficiently cogent or important to the appellant’s case that a failure to consider it would give rise to jurisdictional error.

Conclusion

89    I have addressed above the case of the first appellant. As the outcome of the second and third appellants’ applications depended on the outcome of their mother’s case, in view of the appellant’s success on Ground 1, they must also succeed.

90    As the appellants were successful on Ground 1, the decision of the Tribunal will be quashed, and the matter will be remitted to the Tribunal to be decided according to law. The appellants are also entitled to a costs order in their favour but, in view of their failure on Ground 2 and the wider ambit of Ground 2 as it was advanced before the primary judge, I will limit the costs order to 80% of their costs of the appeal and 70% of their costs before the Federal Circuit and Family Court of Australia. The different percentages reflect that the ambit of Ground 2 was wider before the Federal Circuit and Family Court of Australia. As sought by the Minister, an order will also be made changing the name of the first respondent to “Minister for Immigration, Citizenship and Multicultural Affairs”.

Associate:

Dated:    19 May 2023