Federal Court of Australia

Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547

ORDERS

THE COURT ORDERS THAT:

1.    Within seven days from the date of these orders, the parties confer and file proposed agreed orders giving effect to the reasons of the Court. If there is disagreement between the parties, within seven days from the date of these orders, each party is to file separate proposed orders and written submissions of no more than three pages in support of their proposed orders.

2.    The final orders of the Court will be determined on the papers.

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

REASONS FOR JUDGMENT

ANDERSON J

1    The appellant appeals the whole of the judgment and orders of the Federal Circuit and Family Court of Australia given in Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 966 (Primary Judgment). This appeal arises from a decision of the second respondent (Tribunal) on 24 April 2017 to affirm the refusal by a delegate of the first respondent (Minister) of the appellant’s partner visa. The appellant, who suffers from polio, is from Vietnam. The appellant and her husband met in Vietnam in June 2012 and married on 25 September 2015: Tribunal Reasons at [22].

2    The Tribunal affirmed the delegate’s decision on the basis that the visa applicant did not meet the criteria in Schedule 3 of the Migration Regulations 1994 (Cth) (because the visa application was filed more than 28 days after the appellant last held a substantive visa) and the Tribunal found that there were no compelling reasons at the time of application to waive the Schedule 3 requirements. In its reasons, the Tribunal referred to movement records for both the appellant and the visa sponsor, her husband.

3    In the Primary Judgment, the primary judge dismissed an application for judicial review of the Tribunal’s decision.

4    The appellant raises two grounds of appeal:

(1)    The primary judge erred by not finding that the Tribunal breached s 359A and s 359AA of the Migration Act 1958 (Cth) (Act) in respect of international travel movement records.

(2)    The primary judge erred by not finding that the Tribunal breached s 360 of the Act by using records obtained after the hearing to find against the appellant.

Proceedings before the Tribunal and the primary judge

5    The Tribunal conducted a hearing on 21 April 2017, at which the appellant presented arguments and gave evidence. On 24 April 2017, the Tribunal published its Reasons, in which it affirmed the decision under review.

6    The appellant’s husband’s travel movement records (at CB 216) were obtained by the Tribunal after the Tribunal hearing concluded on 21 April 2021. This is evident from the fact that the husband’s movement records are dated 21 April 2017 and have a time stamp of “13:53 AEST”. The hearing record (at CB 214) records that the hearing was completed on 21 April 2017 at 12:51 pm.

7    It is evident from the Tribunal’s Reasons at [25], [27], [29], [30]-[31] and [35] (set out in full below) that the movement records were used by the Tribunal as part of its reasons.

8    Before the primary judge, the appellant submitted that the Tribunal failed to comply with its obligations under ss 359A and 359AA of the Act in relation to the international movement records of the appellant and the sponsor. The primary judge rejected this submission. After referring to the High Court’s reasons in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) and the Full Court’s reasons in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [23], [25] and [27] (Dowsett, Bennett and Edmonds JJ), the primary judge held (at [35]-[36]):

35.     I accept the Minister’s submission that the information in the movements records of the applicant and the sponsor is information that is neutral in its terms, and that the Tribunal has not breached ss 359A or 359AA of the Migration Act in relation to that information. The information in the movements records is not a rejection, denial or undermining of the applicant’s claims that there were compelling reasons not to apply the Schedule 3 criteria, and therefore is not ‘information’ which attracts the obligation in ss 359A and 359AA.

36.     The Tribunal drew inferences from the information in the movements records in relation to the level of emotional support that the applicant derived from the sponsor, and based on these inferences, found that the emotional support that the applicant derives from the sponsor did not amount to a compelling reason not to apply the Schedule 3 criteria. That is part of the Tribunal’s thoughts and reasoning process and did not need to be put to the applicant for comment.

9    The appellant also submitted that the Tribunal breached s 360 of the Act because the Tribunal obtained the sponsor’s movements record after the hearing and took that evidence into account in affirming the decision without giving the appellant an opportunity to be heard about the evidence of the sponsor’s travel and the couple’s time apart in 2015.

10    The primary judge rejected these submissions (Primary Judgment at [65]) on the basis that the Tribunal had put the appellant on notice of the issue before it, which was whether there were compelling reasons for not applying the Schedule 3 criteria. The primary judge reasoned that the details in the sponsor’s movements record were merely facts relevant to this issue, and the Tribunal was not obliged to inform the appellant of these facts: Primary Judgment at [66].

Ground 1

Appellant’s submissions

11    The appellant submits that the Tribunal failed to comply with its obligations under s 359A and s 359AA of the Act when it:

(1)    failed to give to the appellant clear particulars of information that the Tribunal considered would be a reason or part of the reason for affirming the decision under review;

(2)    did not ensure that the appellant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review; and

(3)    did not invite the appellant to comment on, or respond to, the information or advise the appellant that she could seek additional time to comment on or respond to the information.

12    The appellant submits that the Tribunal did not provide clear particulars of the international movement records of the appellant and her sponsoring husband. On the appellant’s submission, the information was adverse in that it undermined her relationship claims and particulars of the information were not provided to the appellant.

13    The appellant submits that the international movement records were also relevant to issues about whether the couple were together to provide emotional support which the Tribunal addressed at Tribunal Reasons [35].

14    The appellant submits that the international movement records were relevant to the care the husband was providing to the appellant in the context of her pain from polio related injury and surgery. The Tribunal recorded the sponsor’s comings and goings at Tribunal Reasons [27] based on the international movement records. The appellant submits that if the sponsor’s movement records had been put to the appellant, she could have pointed out that the sponsor came to Australia shortly after her accident in August 2015 and stayed until November 2015 and she joined him in Vietnam in December 2015. According to the appellant, the time that the appellant and the sponsor spent together relative to the sponsor’s travel movement was very relevant. So much is clear from the fact the sponsor declared in a statutory declaration dated 9 October 2015 (at CB 133) that:

[The appellant] had an accident in July 2015 and then needed to have a knee operation. She suffered quite a lot of physical pain so I tried to stay most of my time by her side to calm and comfort her. She had very good patience and fortitude. After the accident on the night of 12/09/15 I made the decision to propose to her so that I could take care of her forever, and it was to my total happiness that she accepted it (emphasis added).

15    The appellant submits that the date of the sponsor’s absence from Australia in the present case was adverse information, not neutral information.

16    The appellant submits that there is nothing in the statutory terms of ss 359A or 359AA of the Act that requires the relevant information to be adverse in its terms. It just has to be information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The information was information the Tribunal used as part of the reason for affirming the decision under review. Under the hearing “Length of relationship” the Tribunal referred repeatedly to the international movement records leading to the conclusion that the parties had not provided sufficient reliable information that they are in a long-standing relationship of two years or more.

17    The appellant submits that the fact the information was not provided by the appellant and was pivotal to adverse findings on key issues distinguishes this case from SZGIY, and the primary judge was wrong to find otherwise.

18    The appellant submits that the passage from the majority judgment in SZBYR at [17] to which the primary judge referred does not stand in the way of finding for the appellant. The appellant submits that the substance of the majority’s conclusion in SZBYR was that information in a visa applicant’s own statutory declaration was not “information” that would be the reason for affirming the decision under review.

19    For these reasons, the appellant submits that the appeal should be allowed on this ground.

Minister’s submissions

20    The Minister submits that the appeal should be dismissed with costs because the primary judge was correct to dismiss the application for judicial review of the Tribunal’s decision dated 24 April 2017. The Minister submits that the international movement records of the appellant and her husband were “neutral in [their] terms”. The Minister submits that this is evident by the fact that, in the Tribunal Reasons at [25], the Tribunal found that the international movement records confirmed the parties’ evidence about being in Vietnam when they met. This is said to demonstrate that the records could be used to draw a positive conclusion confirming the appellant’s evidence. It could also be used to draw a negative conclusion when they were physically apart for a period of time.

Consideration

21    Section 359A(1) of the Act provides:

Subject to subsections (2) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that it is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

22    Section 359AA(1) of the Act permits the Tribunal to orally give to an applicant clear particulars of “information” that would be the reason or a part of the reason for affirming the decision under review where the applicant attends a hearing under s 360 of the Act.

23    Counsel for the Minister, Mr Barrington, properly conceded that the evidence discloses that the Tribunal accessed the husband’s movement records after the conclusion of the Tribunal hearing, and that the records were not put to the appellant for comment. The Minister’s case is therefore narrow – it is simply that ss 359AA and 359A of the Act were not enlivened because the husband’s movement records were “neutral”. The Minister accepts that, if I conclude that those records were not neutral, then ss 359AA and 359A of the Act was not complied with.

24    The Minister relies on the reasons of the majority in SZBYR. In that case, the majority held that the contents of the appellants’ statutory declaration, which was inconsistent with the appellant's oral evidence to the Refugee Review Tribunal, did not constitute disclosable “information” within the meaning of s 424A(1)(a) of the Act (a provision analogous to ss 359AA and 359A of the Act). The majority held at [17]:

[T]he appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

25    The majority went on to state (at [18]) that “[h]owever broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.

26    The Minister also relied on the Full Court of this Court’s reasons in SZGIY. In that case, the relevant “information” said to be disclosable by the Refugee Review Tribunal to the visa applicant under s 424A(1)(a) of the Act was the applicant’s date of arrival in Australia which, when read with the date of her visa application some 15 months later, had caused the Tribunal to doubt her evidence about the basis for her protection claim. The visa applicant conceded that her arrival in Australia was of itself neutral: at [23]. The Court also found that the date of her visa application was also neutral: at [25]. The principal question was whether the “composite information” (the delay between her arrival and application) constituted information for the purposes of s 424A(1). The Court held that the Tribunal’s inference or deduction of delay from two neutral facts did not constitute distinct information, and reasoned as follows (at [27]):

The proposition than an inference or deduction based upon two facts can constitute “information” for the purposes of s 424A(1) does not fit easily into the structure of s 424A as a whole. In SZBYR the High Court stressed the distinction between the concept of “information” and the reasoning process leading to affirmation of the decision under review. That process must necessarily reflect the prescribed criteria which were relevant in making the original decision. In the present case, the primary question was whether the appellant was a person to whom Australia owed protection obligations. The dates, taken in isolation, said nothing about whether the appellant was such a person. Taken together, they demonstrated that she had made the visa application almost seventeen months after her arrival in Australia. That fact, which was the product of arithmetical calculation, taken in isolation, also said nothing about Australia’s obligations to her. However it was open to the Tribunal to consider the appellant’s conduct and whether it was consistent with her claims. Unexplained delay in applying for a protection visa might well be inconsistent with her claim to fear persecution in China. The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of s 424A(1).

27    Finally, the Minister relied on the Full Court of this Court’s reasons in SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109, which also concerned the application of s 424A of the Act. The information which it was said the Refugee Review Tribunal was obliged to provide to the protection visa applicant concerned factual statements about the Falun Gong movement and its founder. These were matters about which the Tribunal put questions to the visa applicant. Her incorrect answers, assessed against the factual statements, were used by the Tribunal as part of its assessment of her knowledge of Falun Gong and her credibility generally. Buchanan J (with whom Perram J agreed) held that any process of comparison between the visa applicant’s answers and the factual statements themselves did not constitute “information” within s 424A of the Act. His Honour went on to hold (at [104]):

That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.

28    Having regard to the above authorities, I do not accept the Minister’s submission that the international movement records of the appellant’s husband were neutral in their terms.

29    Consistently with the reasons of the majority in SZBYR at [17], whether the husband’s movement records constituted “information” that the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review” falls to be determined in advance of the Tribunal’s particular reasoning on the facts of the case. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. In this case, the issue before the Tribunal was whether there were “compelling reasons” to not apply the criteria in Schedule 3 of the Regulations. The appellant’s claim, as advanced before the delegate and subsequently on review before the Tribunal, was that there were such “compelling reasons”, in part, because of her genuine and continuing relationship with her husband.

30    In this case, the husband’s movement records were, themselves, of dispositive relevance to the appellant’s claim. The international movement records revealed the husband’s repeated travel in and out of Australia, and that he was not in Australia for extended periods of time. That information had a direct bearing on the veracity of the appellant’s “compelling reasons” claim.

31    I accept that the authorities establish a distinction between the concept of “information”, which is disclosable, and the reasoning process leading to affirmation of the decision under review, which is not. I accept that I am required to consider the husband’s movement records by themselves, shorn of the analytical context in which they played their part. However, unlike the materials considered in each of SZBYR, SZGIY and SZJBD, the husband’s movement records, on their own and without reference to any other material, undermined the appellant’s claim to a genuine and continuing relationship with her husband, which was relevant to her claim that there were compelling reasons to waive the Schedule 3 criteria. That is because, as previously noted, the international movement records on their face disclosed that the appellant’s husband was not in Australia for extended periods of time. This information could be derived directly from the content of the appellant’s husband’s movement records. It did not require any inference to be drawn because the content of the data contained in the international movement records spoke for itself.

32    For these reasons, I reject the Minister’s submission that the international movement records were neutral. As a consequence of the Minister’s concessions, the Tribunal has failed to comply with s 359A and s 359AA of the Act. Ground 1 will be allowed.

Ground 2

Appellant’s submissions

33    The appellant submits that the Tribunal breached s 360 of the Act because rather than inviting the appellant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review, the Tribunal obtained evidence after the hearing – in the form of the husband’s movement records – and used those records to affirm the decision, without giving the appellant a chance to be heard about the evidence of the husband’s travel and their time apart in 2015.

34    The appellant submits that in the absence of an opportunity to be heard on the critical international movement records evidence, which was highly relevant to the couple’s time together, the invitation to appear here was merely an empty shell or hollow gesture: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] (Gray, Cooper and Selway JJ).

35    The appellant submits that s 360 of the Act obliges the Tribunal to give the appellant a real chance to present her case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [58] (Hayne, Kiefel and Bell JJ).

36    The appellant submits that the Tribunal did not invite the appellant and her spouse “to appear to give evidence and present arguments relating to the issues arising in relation to the decisions under review” because instead the Tribunal had a hearing, then gathered evidence that it used to find against the appellant’s case, without reopening the matter for further hearing.

37    The appellant submits that unlike in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [25] (Bennett J), the Tribunal here did not put the appellant on notice of real difficulties it was having with the times the couple were together.

38    The appellant submits that the Tribunal appears to have undertaken a mathematical exercise of adding up their periods together from international movement records and concluding that it was less than two years. The appellant and her husband should have had the chance to be heard on the international movement records. The obvious submission they could have made was that even when they were separated by geography they were still in a loving, committed, and long relationship with each other – it was not a stop start relationship. The primary judge erred in rejecting this ground and the decision is affected by jurisdictional error.

Minister’s submissions

39    The Minister submits that the appellant was clearly put on notice of the issue arising in relation to the review namely, whether there were compelling reasons for not applying the Schedule 3 criteria. The Minister submits that the Tribunal was not obliged to put the appellant on notice of each of the factual matters that informed the Tribunal’s consideration of that issue: SZJUB at [25] (Bennett J).

40    The Minister further submits that, if I am satisfied that the Tribunal did comply with ss 359AA and 359A of the Act by not putting the appellant’s husband’s movement records to her, I must also be satisfied that the Tribunal’s conduct satisfied the requirements of procedural fairness. As I have concluded that the Tribunal did not comply with ss 359AA and 359A, this latter argument must fail and need not be dealt with further.

Consideration

41    Section 360 of the Act requires the Tribunal to invite an applicant to a hearing to give evidence and present arguments in relation to the issues relevant to the review. The section provides:

(1)     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.

(2)     Subsection (1) does not apply if:

(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)     subsection 359C(1) or (2) applies to the applicant.

(3)     If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

42    In considering an analogous provision in s 425(1) of the Act, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) held that the particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case. The Court endorsed the proposition that the opportunity to be heard ordinarily requires the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: at [32]. In SZJUB, Bennett J held that, if there are factual matters that go to an issue arising in relation to the decision under review, the Tribunal is not obliged to put each of those factual matters to the appellant, only the issue itself: at [25].

43    The Tribunal, after the conclusion of the hearing on 21 April 2021, obtained the husband’s movement records. During the hearing, the Tribunal did ask questions of the appellant in relation to her knowledge of her movements and the movements of her husband in and out of Australia: CB 244-257. The appellant was questioned about the time she and the sponsor spent apart and the impact that a temporary separation would cause: CB 258-9. The appellant was also informed by the Tribunal that it had her international movement records: CB 248.

44    Nonetheless, the Tribunal did not inform the appellant that it had her husband’s movement records, nor did it put to the appellant particulars of those records, nor did it afford the appellant the opportunity to comment or give evidence about those records.

45    It is evident from the Tribunal’s Reasons that the Tribunal used the international movement records to reach specific conclusions about the length of her relationship with her husband and the emotional support provided to her by her husband. The following paragraphs of the Tribunal’s Reasons are in this regard instructive:

25    It was submitted that the parties were in a relationship which was not of “short duration”. The applicant claims that she and her sponsor lived together in Vietnam in a spousal relationship from the time they met there in June 2012. It was submitted the sponsor proposed on 12 September 2015 and the parties married two weeks later on 25 September 2015. As evidence of the duration the applicant submitted photographs. Movement records do confirm the sponsor was out of Australia at the time the parties claim to have met. He remained away for some 9 months returning to Australia on 20 March 2013.

…

27    The sponsor next left Australia next on 18 February 2015 approximately a month before the applicant arrived in Australia on 18 March 2015. The sponsor next returned on 17 August 2015. He again departed on 8 November 2015. The applicant departed on 29 December 2015. The applicant returned on 27 February 2016 and her sponsor returned on 4 July 2016. The applicant departed on 27 March 2016 returning on 13 April 2016.

…

29    The Tribunal is not satisfied that the parties have provided sufficient reliable evidence that they are in a long standing relationship of two years duration or more such as to satisfy it not to apply Schedule 3 requirements.

…

30    The Tribunal accepts the medical and oral evidence that the applicant had poliomyelitis from an early age. The Tribunal accepts that the applicant slipped and hurt her knee resulting in her requiring an open reduction internal fixation of her left tibial plateau and that this required pins or screws to be inserted. The Tribunal accepts that as a result she required time in hospital and time for rehabilitation and that this involved physiotherapy. The Tribunal has considerable sympathy for the applicant regarding all these circumstances.

31    However there is no medical evidence of the applicant’s need to be with her sponsor at the time she underwent her surgery or of any ongoing medical treatment or support by the sponsor required by the applicant as a result of her surgery. Furthermore the Tribunal notes the sponsor was out of Australia at the time of the applicant’s fall/accident and was outside Australia at the time of her surgery.

…

35    It was submitted that the applicant is reliant on the sponsor for support including emotional support particularly at the time of her accident which was a “threat to her health and safety and a concern for the sponsor”. The Tribunal accepts this may have been so. However, from movement records, and as set out above, the Tribunal notes the sponsor was out of Australia from 18 February 2015 only returning in August that year. In this circumstance whilst accepting there may have been some emotional support the Tribunal places less weight on the claim and finds any need of the applicant to rely upon the sponsor for support is not so compelling as to provide a basis for the waiver of schedule 3 criteria.

46    It is evident from the above, that the appellant’s husband’s travel records were critical to the Tribunal’s ultimate decision. It is also evident that the Tribunal took a forensic approach to analysing those international movement records, by pinpointing the appellant’s husband’s individual arrival and departure dates and, on this basis, concluding that he was not present in Australia at the time of the appellant’ surgery. This was not a matter which the appellant was on notice of, notwithstanding that she was on notice that there was an issue relating to the total amount of time she had spent with her husband.

47    Section 360 of the Act obliged the Tribunal to give the appellant a real chance to present their case: Li at [58]. The appellant was not afforded an opportunity to give evidence and present arguments in relation to her husband’s movement records and as such the Tribunal breached s 360 of the Act. Ground 2 is allowed.

Disposition

48    The appeal is allowed.

49    The parties will be ordered to confer and file proposed agreed orders giving effect to the reasons of the Court. If there is disagreement between the parties, they are to file separate orders and a short written submission.

Associate:

Dated:    7 December 2023