The mental health issue
33 The primary submission pressed on the hearing of the appeal by counsel for Mr Bunnag was that the Tribunal should have done more, knowing that there was evidence of mental health issues of the sponsor. Mental health of the sponsor was said to be a critical issue because it explained the lack of permanent cohabitation between the couple. It was said to be an issue on which inquiries were made and therefore thought to be of sufficient importance to establish the correct answers yet the Tribunal, when it was well within its power to obtain the correct information, failed to pursue opportunities to do so.
34 Of particular emphasis was the fact that the employer who was assisting Mr Bunnag with his application informed the Tribunal that it had not been possible to obtain the medical records of the sponsor. The reason for this, which was known to the Tribunal, was that the sponsor was not in a fit state to provide an informed consent to the giving of her records. Mr Chu, who was assisting Mr Bunnag, suggested to the Tribunal that it may be able to make the health inquiries direct. As counsel for Mr Bunnag submitted, it was open to the Tribunal to defer making any final decision until this issue had been established or to issue subpoenas in order to establish the correct answers to the decision or to inform Mr Bunnag that he could request the Tribunal to issue subpoenas or conduct other inquiries.
35 While this, on its face, sounded like a complaint about the merits of the decision reached by the Tribunal, the submission at law which was made by counsel for Mr Bunnag was that the need to make those further inquiries was so fundamentally central to the issue the Tribunal was required to determine and was also information which could be readily obtained, that to make a decision without that information was so wholly unreasonable as to fall within that rare class of cases characterised by Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
36 For this submission to succeed, the obviousness of the lack of reasonableness must be established. This was an issue extensively examined by her Honour, Kenny J in Minister for Immigration and Citizenship v Le [2007] FCA 1318. At [60] - [64] of that decision her Honour said:
… On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal: … (citations omitted). On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 ("Wednesbury Corporation").
In Wednesbury Corporation at 230, Lord Greene MR summarised what he saw as a fundamental common law principle when he said "[i]t is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". He added that "to prove a case of that kind would require something overwhelming". A finding of jurisdictional error on the ground of unreasonableness is rare compared with other grounds: see Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364 at [29] per North J. It is sometimes said that there must be something exceptional about the case to attract the ground.
Although the position in Australia may differ from that in England, the decision in Wednesbury Corporation would support the proposition that an exercise of power that is unreasonable in this sense may ground a finding of jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 352, McHugh, Gummow and Hayne JJ held that the concept of jurisdictional error relevant in the present context derives from the general law, as explained in Craig v The State of South Australia (1995) 184 CLR 163 at 179. Craig did not refer expressly to Wednesbury unreasonableness, but the High Court accepted that the list of errors to which Craig referred was not exhaustive. In any event, the reference in Craig to the fact that, in some circumstances, erroneous findings or mistaken conclusions provide a ground of error may cover this form of error. This would be consistent with earlier authoritative statements: ... (citations omitted)
The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry: see Prasad at 169-170 per Wilcox J; ... (other citations omitted). In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries: see Prasad at 169-170 per Wilcox J and Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at 73-74 per Allsop J; but contrast SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [20]-[22] per Edmonds J.
Today, at least in the context of migration cases, judicial discussion of the significance of a failure to obtain further information on a critical issue ordinarily commences with Prasad. In Prasad, Wilcox J expressed the view, in obiter dictum, that it was unreasonable in the circumstances of the case (where a 'spouse' visa was at issue) not to seek out the explanations of certain inconsistencies in the material before the decision-maker. It was plain enough that explanations for the inconsistencies were readily ascertainable. Wilcox J referred to the recognised authorities and said, at 169-170, that:
A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in an manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. (emphasis added)
37 As this discussion and analysis by her Honour indicates, the exception to the general proposition that a tribunal has no obligation to initiate inquiries or to make out an applicant's case applies only in certain rare circumstances where the Tribunal's failure to inquire or to obtain important information relates to a 'critical issue' which could easily be clarified.
38 Mr Bunnag had the onus of satisfying the Court that the mental capacity of the sponsor was an issue of such importance that failure to complete inquiries in relation to it would be so wholly unreasonable as to render the decision void by virtue of jurisdictional error.
39 Counsel for the Minister made a compelling case for the fact that this inquiry had ensued over a very long period of time, ample opportunity had been given to Mr Bunnag to satisfy the Tribunal as to many matters, only one of which was the mental capacity of the sponsor. Her mental capacity was not amongst the items which the Tribunal was required to consider pursuant to the Regulations. It was simply an issue which might go to the question of explaining the nature of the particular relationship which would otherwise not fall within the Regulations.
40 Counsel for Mr Bunnag stressed that the sponsor's mental capacity was critical as it explained the gaps in the relationship which the Tribunal identified.
41 To resolve that difference of view, it is necessary to examine the procedure and reasoning process of the Tribunal.
42 The Tribunal held a hearing of the application for review on 9 November 2005. At that hearing Mr Bunnag and Mr Chu attended and gave evidence under affirmation. Mr Chu was Mr Bunnag's employer and friend. He also informed the Tribunal that he was Mr Bunnag's authorised representative. Evidence was given about the sponsor who was then a 25 year old female citizen of Australia, born in Australia in 19 September 1980. In the visa application under review, it was claimed that Mr Bunnag first met the sponsor in Bentley, Western Australia on 31 June 1999 and they began a relationship in Perth on 17 July 1999. They were invited to attend an interview with DIMIA on 8 December 2000. They were married the day before the interview on 7 December 2000. They attended the interview and submitted two statutory declarations. One was made by a gentleman who claimed to have introduced the couple and the other was made by the sponsor's sister stating that she was 'close' to her sister and that she visited Mr Bunnag's home regularly.
43 Subsequently, in 2001, Mr Bunnag provided various other documents to DIMIA including a completed Centrelink rent assistance questionnaire and an agreement to take residential premises in Ascot, Western Australia. That document shows Mr Bunnag's name, his brother and sponsor's name in a different type face. The lease provided that the premises were not to be occupied by more than two persons.
44 In mid-2001 (31 July 2001), Mr Bunnag was granted a subclass 820 visa. It ceased on 24 November 2004. Since that time he had held a bridging visa. On 22 September 2003, DIMIA wrote to Mr Bunnag care of his representative requesting, amongst other things, documentation to support the claim that the parties' relationship was genuine and ongoing.
45 In response, on 17 November 2003, Mr Chu provided the following evidence to DIMIA:
· a residential tenancy agreement;
· five photographs of the parties together and with third parties;
· three statutory declarations from friends of the parties and the sponsor's sister declaring, in essence, that the parties' relationship was genuine and continuing; and
· Centrelink documents addressed to the sponsor at the address occupied by Mr Bunnag.
46 A further request in similar terms was made by DIMIA on 17 February 2004 in response to which, on 14 April 2004, Mr Chu provided:
· a signed statement from the parties of 5 April 2004;
· electricity account statement dated March 2004 in their joint names at the address referred to above (Mr Bunnag's address);
· a Foxtel account statement in their joint names at Mr Bunnag's address;
· a mobile telephone account statement dated September 2003 and a gas account statement dated March 2004 in the name of the sponsor addressed to her at Mr Bunnag's address;
· a letter from Challenge Bank dated 21 May 2003 addressed to each of them at Mr Bunnag's address indicating that they opened a joint bank account on 21 May 2003;
· seven photographs of the parties together; and
· two photographs of the parties together with third parties.
47 On 5 May 2004 a delegate and another DIMIA officer conducted a home visit at Mr Bunnag's address. A written record of the home visit is contained in the files. The officers ascertained that all of the occupants appeared to be male. On or about July/August 2004 further inquiries were conducted as to the authenticity of certified copies of tenancy agreements and other documents.
48 In September 2004, two officers from DIMIA conducted a home visit at Mr Bunnag's new property in Bentley, Western Australia. According to the record of that visit, Mr Bunnag admitted to providing false documents to DIMIA. The officers ascertained from the home visit that the sponsor did not reside at the premises with Mr Bunnag and the parties were not in a genuine and continuing relationship. The officers observed that the sponsor did not have any clothes or shoes in the house. Mr Bunnag produced a bottle of perfume which he said belonged to the sponsor.
49 Later that month, DIMIA sent Mr Bunnag a notice of intention to consider cancellation of his visa under s 109 of the Act regarding the four manufactured documents. The cancellation did not proceed and in a letter to DIMIA dated 29 September 2004, Mr Bunnag admitted providing the manufactured documents but claimed that he and the sponsor moved to the address in Bentley some time 'towards the end of last year' and that the marriage with his wife 'has and always (sic) been genuine and continuing'.
50 In November 2004, Centrelink advised DIMIA that the sponsor's address at that stage was in East Victoria Park, Western Australia and that Mr Bunnag and the sponsor had separated in May 2002. On 10 November 2004, two officers from DIMIA conducted a second home visit to the Bentley address. The officers ascertained from the visit that some women's clothes and cosmetics were in the house but that the couple slept in separate rooms when she stayed at the house and that she had moved to another house. There is a record of the home visit on DIMIA's file.
51 By letter of the same day, Mr Bunnag wrote to DIMIA concerning the visit by the officers stating that:
it has been nearly 5 years now since I have been married with my wife. Every day I am living in the unknown … as a result my wife has also suffered so much to a point that she is mentally sick … I made mistake (sic) by making false documents …
52 Later that month, the delegate of the Minister found that the couple were living separately and apart on a permanent basis and that the delegate was not satisfied that Mr Bunnag and the sponsor were in a genuine and continuing married relationship. As a result it was concluded that Mr Bunnag had failed to satisfy clause 801.221 of the Regulations.
53 On 10 December 2004, Mr Bunnag lodged an application for review of DIMIA's decision with the Tribunal. He stated that the DIMIA decision was incorrect as:
My wife and I have been married for four years and we have been living together. Because of the difficult times (financial and social issues) we had some arguments and she left me for a while. My immigration problems also gave me a lot of stress. That was some time ago. But today we are still married and together, living at our new house. My wife is a little mentally sick recently due to the pressures. She needed money to see the doctor but I didn't have any because I don't have enough, so she told Centrelink that she was separated so she could get more money to see her doctors. The last time DIMA interview her she was very scared and panicked and didn't feel right to be in there. Submission to follow.
54 On 16 December 2004, further documents designed to support Mr Bunnag's claim were provided to DIMIA. None of those documents touched on the mental capacity of the sponsor. In February 2005, Mr Bunnag was provided with access to DIMIA's file and, in particular, access to the notes made at the site visits made by DIMIA's officers to review Mr Bunnag's home. Later that month Mr Bunnag submitted additional evidence to DIMIA including various statements, photocopies and documents similar to those submitted in December 2004. Again, there was no material submitted touching on the question of the mental capacity of the sponsor.
55 On 16 June 2005, Mr Bunnag's representative and work colleague, Mr Chu, lodged a submission with supporting documents with the Tribunal. On this occasion, Mr Chu stated in essence that the sponsor suffers from mental illness which has had an adverse impact on the parties' relationship and that he believed that the parties' relationship was genuine and continuing. He provided a substantial number of further documents intended to support the genuineness and continuing nature of the relationship. None of the enclosures touched on the mental capacity of the sponsor.
56 On 29 August 2005, Mr Chu lodged further documents and on this occasion included a letter from Royal Perth Hospital to the sponsor in August concerning her appointment for a diagnostic EEG. On its face, this document would not necessarily go to any question of any mental capacity of the sponsor but in an indirect fashion may indicate that the sponsor was seeking diagnosis in respect of some health condition.
57 On 9 November 2005, further evidence was provided by Mr Bunnag. On this occasion, amongst a deal of other evidence there was reference to the sponsor being unwell with an unspecified illness for some time and a statement that she 'has been hospitalised for long periods of time at Bentley Hospital'. Mr Bunnag said that he would seek to obtain the sponsor's medical records from Bentley Hospital. He also said that the sponsor had come to the Tribunal hearing however she did not give evidence as she was too unwell to remain in the building and so she left. Counsel for Mr Bunnag places emphasis on the fact that the Tribunal was alerted from this evidence that at least Mr Bunnag was informing it that the sponsor had been unwell with an unspecified illness for some time and had been hospitalised for long periods of time at the Bentley Hospital. There is no indication in this material that the reason for hospitalisation pertained to mental capacity but in itself, perhaps the more important issue was the hospitalisation 'for long periods of time'. In any event, Mr Bunnag, at that stage, was saying that he would seek to obtain the sponsor's medical reports from the hospital.
58 On the same day as the hearing, 9 November 2005, Mr Bunnag wrote to the Tribunal regarding his efforts in obtaining medical reports and indicated that there may be some delay in obtaining them. On 5 December 2005, the Tribunal sent Mr Bunnag an invitation under s 359(2) of the Act to provide further information relating to a variety of matters including details of the sponsor's medical condition, details of her hospitalisation and the nature and extent of any support provided by him to her. In response, on the same day, Mr Chu wrote to the Tribunal saying that the sponsor had been deteriorating, her behaviour had been strange and absurd, that her behaviour had taken a toll on Mr Bunnag and that they were not receiving any assistance from the Government of Australia. That letter was handwritten but by a typed letter of the same day, Mr Chu wrote to the Tribunal informing it that he was still waiting to retrieve the sponsor's medical files. He enclosed further copies of utility bills and correspondence addressed to Mr Bunnag or the sponsor at the Bentley address.
59 On 6 January 2006, Mr Chu wrote to the Tribunal stating that following receipt of its letter of 5 December 2005 he and Mr Bunnag had contacted Bentley Health Service to try to obtain details of the sponsor's medical conditions and the periods of time which she had spent hospitalised. They had not been able to obtain any details as the sponsor was still an inpatient 'and unless she is discharged, the medical reports will not be completed as yet'. It was also said that Dr Simone Carter 'whom we are dealing with is currently on leave and won't be back til Monday, 9 January 2006. Consequently we may expect further delays in obtaining the relevant documentations (sic)'.
60 Counsel for Mr Bunnag stressed that the Tribunal did not quote in its decision a sentence appearing in the letter in the following terms. 'However, you may try to contact them directly being a division of the Australian Government'. Counsel for the Minister stressed that if that was a request, it was followed immediately with these words 'alternatively, we may have to wait til Monday before we receive any further notices. As such, I hereby write to you to be allowed additional time to accumulate the documentations (sic)'. In my view this letter is a request for additional time to accumulate the documentation. That request was granted. It may have been open to the Tribunal (as suggested) to pursue those inquiries itself but that was not what was being sought by or on behalf of Mr Bunnag. What was sought and what was given was additional time to source the documentation.
61 In any event, it may well have been surprising for the Tribunal by this point after the topic had been raised on a number of occasions that there was no clarification at all from Mr Bunnag as to the period of time in which the sponsor had been hospitalised, the nature and extent of the support that he had given or indeed any clarification even in lay terms of her illness. It would have been open for the Tribunal to conclude or consider at this point that in a marriage of the type described by the Regulations, it might be expected that Mr Bunnag could provide at least some details on all of those matters. On 10 January 2006, Mr Bunnag's representative wrote to the Tribunal stating that Dr Simone Carter had advised him that the sponsor's doctor had not provided her with medical reports and that they may take months to be finalised.
62 Dr Carter had already, on 21 November 2005, provided Mr Chu with clear written advice that before proceeding to comply with the request for any medical reports that she required to have a dated and signed consent from the sponsor. The Doctor said:
I write in response to your letter received today regarding [the sponsor]. Before proceeding with your request, I require a dated, signed consent from your client, within the past 12 months; this is a policy of Bentley Health Service.
Also we require the date of birth of your client. Please note that we have over one million patients listed in our global database and it is hence imperative that a DOB is provided in order to correctly confirm the identity or your client.
I will wait to hear from you with the above information supplied before proceeding with your request.
63 It was not until 18 January 2006 that the Tribunal received a covering letter from Mr Chu indicating, amongst other things, that the hospital was unwilling to release information regarding the sponsor as she was unwell and unable to make an informed decision regarding the release of her medical records. It also enclosed a letter from Bentley Health Service to Mr Chu of 18 January 2006 to that effect. Certain other documents were also enclosed which did not go to the question of the mental capacity of the sponsor. From this information the Tribunal may well have been alerted that the sponsor was unwell. But neither Mr Bunnag nor Mr Chu provided the Tribunal with the information which had been sought in the 5 December 2005 letter.
64 On 22 February 2006, the Tribunal sent Mr Bunnag an invitation under s 359A of the Act to comment on any adverse information relating to the site visits by DIMIA in 2004 and the Centrelink records indicating that in November 2004 the sponsor was living in Victoria Park, Western Australia and that the couple had separated in May 2002. Counsel for Mr Bunnag complains that this information was irrelevant as at the time of the decision which was almost two years later. However, the basis upon which Mr Bunnag had proceeded in his application was that the marriage had been close and continuing throughout the period including the period when the visits were made. This information was therefore capable of going to the veracity of Mr Bunnag's claims in relation to the nature of the marriage during the relevant period of time and therefore by inference, also at the time that the decision was to be made. In any event, there was the opportunity for Mr Bunnag to explain, if it had been the case, as to the circumstances found by DIMIA's officers in 2004 and, if it were so, why those circumstances no longer existed in 2006 at the time of the Tribunal's determination.
65 On 7 March 2006, Mr Bunnag did respond through Mr Chu. He observed in relation to the site visit in May 2004 that during that period the sponsor was frequently admitted to Fremantle Hospital. That was the first occasion on which this response had been given. The Tribunal was also informed by Mr Bunnag that the lack of the sponsor's clothes in his house in September 2004 was explained by the fact that she had moved out temporarily to live with her sister in Winthrop and then with friends in Victoria Park, that they had tried to reconcile on a number of occasions and operated on the basis that the sponsor would stay from time to time with Mr Bunnag. As to the visit on 10 November 2004, Mr Bunnag advised that that the sponsor has her own keys to the house and she would come and go as she wished. He advised that the couple lived in separate rooms due to her mental condition.
66 In relation to the information that the sponsor was living in Victoria Park in November 2004, this was said to be during the period when they were attempting to reconcile.
67 As to the separation on 1 May 2002, Mr Bunnag repeated his explanation that the sponsor lied to Centrelink about their separation in order to obtain more money from Centrelink and that Centrelink had now been advised that Mr Bunnag was the sponsor's partner. Mr Chu concluded that the couple were currently still married to one another, living in a very unique situation together and going through difficult periods in their lives.
68 The Tribunal, having considered the evidence and history proceeded to analyse the considerations for spousal relationship in accordance with reg 1.15A(3) at the time of the decision. It first analysed the financial aspects of the relationship. There was joint bank account but with very few transactions and the balance usually in the order of only a few hundred dollars. The joint utilities account was 'bogus'. There was no other evidence of any joint ownership of real estate, other major assets, joint liabilities or any pooling of financial resources especially in relation to major financial commitments or the basis of sharing of day to day household expenses. The Tribunal then went on to consider the nature of the household. It concluded that they did not live together as husband and wife. It concluded, however, that the sponsor did spend some time at Mr Bunnag's home but this was infrequent and irregular. It observed no medical evidence had been provided to the Tribunal to indicate the nature or extent of the sponsor's 'conditions'.
69 As to the social aspect of the relationship, there were statutory declarations and two wedding invitations addressed to both Mr Bunnag and the sponsor. It was concluded that the evidence before the Tribunal including Mr Bunnag's own evidence did not entirely support the claim that they had lived together throughout the five year marriage apart from a short separation due to the sponsor's illness and disagreements. It was concluded that there was little evidence of the degree of companionship or emotional support which the sponsor drew from Mr Bunnag. The Tribunal did accept that the indications were that the sponsor had some unspecified health issues. It was also accepted that this may play some role in the lack of evidence. Nevertheless, there was very little evidence before the Tribunal from which an inference of mutual commitment could be drawn. As to the question of whether the relationship was genuine and continuing, the Tribunal concluded that while Mr Bunnag may care for the sponsor and support her while she was unwell at most, that care occurred on an intermittent basis only as Mr Bunnag was unaware of the day to day whereabouts of the sponsor. As to whether the parties lived together or did not separately and apart on a permanent basis, the Tribunal concluded that at the time of the decision the couple produced:
some documentary evidence in the form of correspondence addressed to the review applicant and sponsor as individuals at Sill Street and also joint bank statements which suggest that the couple live together at the same address. There are also some statements in support from the review applicant's friend and representative stating that they believe the couple is in a continuing relationship.
70 The crux of the matter, however, from the Tribunal's point of view was that in the context of a five year relationship there were relatively few:
· photographs of the couple together in a variety of places with people; or
· documents in joint names; or
· detailed statements in support of the relationship provided by the couple or their friends;
· indications from the sponsor herself that she was in a genuine and continuing relationship with Mr Bunnag;
· indications as to the nature, extent and duration of the sponsor's health issues
71 The Tribunal concluded there was insufficient satisfactory evidence of the couple being in a genuine and continuing relationship at the time of the decision. It referred also to the following factors:
· Mr Bunnag did not appear to be aware of the sponsor's whereabouts on a day to day basis. The sponsor came and went from his property on an irregular and an increasingly infrequent basis.
· The couple did not sleep in the same room at that property.
· The lack of evidence reflecting the couple's commitment to one another, especially the sponsor's commitment to Mr Bunnag.
· The sponsor had some correspondence addressed to her at his property but there were few signs of her actually living at the house on a regular basis. At most she appeared to stay at the house occasionally in a bedroom separate to his and with or without his knowledge.
72 From these factors it can be seen that the mental health issue was but one possible issue which could be relevant to the Tribunal's considerations. It was not a 'critical' issue.
73 In my view ample opportunity had been afforded Mr Bunnag to answer the Tribunal's questions on the topic. He did not do so. This ground fails.