Bunnag v Minister for Immigration and Citizenship

Statutory provisions 9 To consider the context of the Tribunal's deliberations it is necessary to have regard to the statutory provisions and regulations. Pursuant to the Act there is provision for classes of visas. Regulations prescribe criteria for the various visas: s 31(1). 10 For a Partner (Residence) Class BS (subclass 801) Permanent visa as described in sch 2 to the Migration Regulations 1994 (the Regulations) the criteria to be satisfied at the time of the decision are set out in cl 801.221 of the Regulations. These provides as follows: 801.221 (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). (2) An applicant meets the requirements of this subclause if: (a) the applicant is the holder of a Subclass 820 visa; and (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Spouse) visa by: (i) the sponsoring spouse; or (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and (c) the applicant is the spouse of the sponsoring spouse; and (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made. (emphasis added) 11 'Spouse' has a special meaning under the Regulations. It requires more than the formality of marriage. 12 'Spouse' is relevantly defined in regulation 1.15A as follows: 1.15A Spouse (1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: (a) in a married relationship, as described in subregulation (1A); or (b) in a de facto relationship, as described in subregulation (2). (1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis. ... (3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: ... (ae) a Partner (Provisional) (Class UF) visa; or ... the Minister must have regard to all of the circumstances of the relationship, including, in particular: (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 party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (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; (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. ... (5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason. 13 Section 65 of the Act provides: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

FEDERAL MAGISTRATE'S DECISION 14 The hurdle for Mr Bunnag in the Federal Magistrates Court was to establish jurisdictional error on the part of the Tribunal. Section 474(1) of the Act provides that a privative clause decision is final and conclusive. It must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The definition of a privative clause decision is provided by s 474(2) of the Act to the effect that it is a decision of an administrative character made, proposed to be made or required to be made under the Act. Certain decisions are excluded. Section 486A provides that an application to the High Court for constitutional writ (mandamus, prohibition, certiorari, injunction or declaration) in respect of a privative clause decision must be made to the High Court within 35 days of the actual notification of the decision. The effect of that is to preclude the High Court from making an order allowing an application outside that period. This decision has been upheld by the Court in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. The validity of the section is based on the fact that it does not purport to ask the jurisdiction conferred by s 75(v) of the Constitution as it does not protect decisions that involve jurisdictional error from review. 15 The first ground before his Honour was an allegation of error by the Tribunal in law because Mr Bunnag and the sponsor were in a lawful marriage at the date of his application as opposed to the date of the Tribunal decision. Therefore, it was argued, there was no need to decide when that marriage ceased to satisfy the Regulations of the Migration Regulations. The Federal Magistrate held that what the Tribunal actually found was that Mr Bunnag and the sponsor were married on 7 December 2000 validly and that at the time of the decision they remained legally married but for the purpose of the Regulations, the Tribunal was still required to consider not only whether they were married but whether they had a mutual commitment to a shared life as husband and wife to the exclusion of all others and their relationship was genuine and continuing and whether they lived together or did not live separately and apart on a permanent basis. In his reasons (Bunnag v Minister for Immigration & Anor [2007] FMCA 1843). his Honour said at [22] - [23]: The applicant asserts that the Tribunal "appears" to have ignored the effect of reg. 1.15A(5), which provides that if two or more persons have been living together at the same address for six months or longer that fact is to be taken to be strong evidence the relationship is genuine or continuing. The Tribunal did not ignore this requirement. There is specific reference to reg. 1.15A(5) in the heading prior to paras. 57-58 of the Tribunal Decision. The Tribunal considered the issue, and concluded that the Applicant did care for the Sponsor, but only intermittently, and that he was unaware of the Sponsor's day to day whereabouts. The Tribunal has not ignored the reg. 1.15A(5) requirement: rather its effect has been displaced by the weight of other evidence. The Tribunal found, and it was a finding available to it on the basis of the evidence, that there was not sufficient evidence for it to be satisfied that: a) the applicant and Sponsor were in a genuine and continuing relationship at the time of the Tribunal Decision; and b) at the time of the Tribunal Decision the couple lived together or they did not live apart on a permanent basis. (footnotes omitted) 16 The second ground was that the Tribunal erred in law in proceeding to determine the application on 28 March 2006 without receipt of all the information before it. The Federal Magistrate held that s 359C(1) of the Act allowed the Tribunal to make a decision on the application without taking any further action to obtain additional information where information sought from an applicant had not been given before the time for giving it had passed. 17 The third ground was that there had been a breach of the requirements of natural justice. That ground was rejected. The Federal Magistrate observed that s 357A of the Act provided that the relevant provisions of that Act exhaustively stated the natural justice rule in migration matters. There had been a hearing, Mr Bunnag had been invited to provide information relevant to the issues, he had been invited to respond to information which might have led to adverse findings, several months passed between the seeking of information and the giving of the decision and Mr Bunnag failed to provide any sufficient information to satisfy the Tribunal on the key issue. In these circumstances, the Federal Magistrate held that there could be no argument of a breach of the requirements of natural justice. 18 The fourth ground before the Federal Magistrate was an assertion that the Tribunal failed to take into account a relevant consideration and therefore its decision was unreasonable. That consideration was said to be the mental health of the sponsor at the date of the Tribunal decision. His Honour held that ground was untenable because it was clear that the Tribunal did take into account the health factor and, in any event, unreasonableness of a 'high level' would be necessary to establish jurisdictional error in accordance with NBKG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 238 at [9]. 19 Ground 5 raised further natural justice issues which were not made out. 20 Ground 6 alleged that the secretary of DIMIA may not have forwarded the complete Departmental file to the Tribunal but no jurisdictional error or review was disclosed in relation to that speculation. 21 Ground 7 was apparently not pursued. 22 Ground 8 was that the Tribunal did not comply with s 359(1) of the Act as it failed to have regard to information provided to the Tribunal in a letter dated 18 January 2006 by Mr Bunnag's authorised representative by way of response to a s 359 notice. The Federal Magistrate held that an examination of these documents revealed they conveyed little information concerning the sponsor. The Federal Magistrate concluded the Tribunal did have regard to the information contained in those letters. Ground 8 was rejected. 23 Ground 9 which also failed was that the Tribunal had erred at law by refusing to consider exercising the powers of s 353(1), s 363(1)(a) or s (3)(a) of the Act. The Federal Magistrate held that the Tribunal was entitled to make its decision without further notice or without making further inquiries under s 359 or s 363 of the Act and no request had been made by Mr Bunnag under s 362 for any evidence to be called. His Honour concluded that no duty was imposed by s 359 or s 363 in circumstances where s 362 was not called or made by Mr Bunnag. There was accordingly no jurisdictional error on the part of the Tribunal or failure to afford natural justice. 24 Ground 10 was an assertion that the notice under s 359A of the Act was not given to Mr Bunnag. Mr Bunnag said he had nominated Mr Chu as his authorised recipient. His Honour held that an applicant is deemed to have been given a document if the document was given to the applicant's authorised recipient regardless of whether or not the authorised recipient was also a registered migration agent (ss 379A and 379G - Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [235] (there was a successful appeal to the High Court from this decision on a different point relating to fraud by the migration agent rather than in relation to these provisions)). 25 Ground 11 was an assertion that Mr Chu was treated as a registered migration agent by the Tribunal and that material provided by Mr Chu was not information given by Mr Bunnag for the purposes of s 359A(4)(b) of the Act. His Honour rejected the suggestion that the Tribunal treated Mr Chu as a registered migration agent but merely treated him as an authorised recipient. 26 His Honour rejected the grounds and dismissed the application for review.

Grounds of appeal 27 Before this Court, there are eleven grounds of appeal, two were not pursued.

Ground 1 The learned Federal Magistrate erred in failing to hold the Migration Review Tribunal ("the MRT") made a decision in excess of its jurisdiction by deciding the Appellant did not satisfy the criterion in Migration (1994) Regs Sch 1 Cl 801.221 at time of decision on 28 March 2006 by reference to matters that had occurred in 2004 and in circumstances where it knew the Appellant wanted to, but was unable to, present material as to the circumstances of the marriage at the date of decision and refrained from advising the Appellant as an unrepresented person as to his rights or inviting comment under s 359A of the Migration Act on the issues raised. 28 To the extent that this ground addresses the reliance on 2004 circumstances for reaching a 2006 decision, in my view, it misconstrues the process of reasoning and the findings of the Tribunal. The decision of the Tribunal was made on 28 March 2006. In its statement of findings, the Tribunal addressed whether Mr Bunnag and the sponsor were in a married relationship at the time of the decision as required by cl 801.221(2)(c) and reg 1.15A. To do this the Tribunal had to consider the matters set out in regs 1.15A(3)(a)-(d). It considered the evidence in relation to each of those issues and set out its conclusions by reference to the Regulations. Specifically, the Tribunal had regard on several occasions to what had been put before it about the mental condition of the sponsor. It also referred to sending Mr Bunnag an invitation under s 359 to provide further information including details of the sponsor's medical condition and the periods of time in which she had been hospitalised. There was a response requesting an extension of time. That extension was granted. 29 It is certainly true that the Tribunal referred to evidence gathered by officers of DIMIA in 2004 but this was specifically in relation to the issue of whether or not at the time of the decision the couple were living together or whether they were living apart on a permanent basis. The Tribunal referred to the claim by Mr Bunnag that they were now living together on a permanent basis but it was not satisfied that this was so on the evidence. This was a credit finding. 30 The Tribunal by putting the material to Mr Bunnag also thereby gave him the opportunity to comment on what occurred in 2004 so as to enable him to express a view generally both as to what occurred in 2004 and whether the state of circumstances there described still existed or not. The Tribunal did not confine its consideration of the evidence and relevant factors to the evidence from those earlier home visits. However, the limitations of the evidence to which the Tribunal alluded were particularly significant in the context of Mr Bunnag's claim that he and the sponsor were and had been in a continuing five year relationship. The Tribunal did not accept this proposition. It concluded there was insufficient evidence for it to be satisfied that the couple were indeed in a genuine and continuing relationship at the time it made its decision. It was not satisfied that at the time of the decision they lived together or that they did not live apart on a permanent basis. 31 Part of this ground of appeal also raises a suggestion of breach of natural justice. The provisions of s 357A of the Act make it clear that the content of Div 5 of Pt 5 is an exhaustive statement of the natural justice hearing rule as it is to be applied in hearings before the Tribunal (SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62 and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214). 32 It is clear, again however, that the Tribunal did invite comment from Mr Bunnag in the letter of 5 December 2005 and again also in its letter of 22 February 2006. He responded to each of those invitations. It did not hand down its decision until 28 March 2006.

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.

Ground 2 The learned Federal Magistrate erred in failing to have regard to documents filed in the Federal Magistrates' Court being the affidavit of the sponsor/spouse of 29 September 2006, the affidavit of Mr. Chu of 29 September 2006, and the affidavits of the Appellant of 29 September 2006 and 23 October 2006 and in particular exhibits "NB 6", "NB 7" and "NB 8". 74 Before the learned Federal Magistrate, Mr Bunnag sought to file additional documents which it was said should satisfy the Federal Magistrates Court that conclusions reached by the Tribunal were wrong. The Federal Magistrate would not take into account those documents and took into account only such documents that were before the Tribunal at the time it gave its decision. 75 His Honour's ruling in the Federal Magistrates Court was correct given that his Honour was not conducting an appeal in the nature of a rehearing but was exercising judicial review in order to establish whether or not jurisdictional error had occurred. It seemed clear that the documents concerned were designed to persuade his Honour that there was other evidence which, had it been before the Tribunal, may have caused it to reach a different decision. In reality, this is simply seeking a merits review. This ground therefore fails. No jurisdictional error is made out. The Tribunal had given Mr Bunnag ample opportunity to provide information which was sought by the Tribunal. Very little on the topic of the sponsor's health had been provided.

Ground 3 The learned Federal Magistrate erred in failing to hold the MRT made a decision in excess of its jurisdiction, and had erred in law, in not construing s 359(1) of the Migration Act as requiring the MRT to "have regard" to any information that is provided in response to a notice under s 359(1) and that the MRT had failed to have regard to the information that was provided in response to the s 359(1) notice of 5 December 2005 to the effect that the Appellant was not able for reasons given to give the requested information in the time specified. 76 This appears to suggest that the Tribunal erred in not waiting until Mr Bunnag could find further information, presumably medical information about the sponsor before concluding its decision. Mr Bunnag informed the Tribunal by letter 10 January 2006 that the information would be available by 19 January 2006. In that communication he did not ask for additional time. Some of the information reflected in the 5 December 2005 letter did not require any access to medical records. That information has been described by the Tribunal in its decision. For example, it sought details of periods of time when the sponsor had been hospitalised during the relationship and the nature and extent of any support that Mr Bunnag provided to her. As the Tribunal noted, he provided little information in response to those requests. No jurisdictional error is made out.

Ground 4 The learned Federal Magistrate erred in failing to hold the MRT made a decision in excess of its jurisdiction by erring in law by accepting that a person who informs the MRT in response to a request for information under s 359(1) of the Migration Act that the person is unable for reasons given to obtain the information, and or, is unable for reasons given to obtain the information before the time for giving it has passed, is a person who "does not give the information" within s 359C(1) enabling the MRT to make the decision without considering whether to take further action. 77 It is submitted there is no reason why the Tribunal did not reconvene under s 363(1)(b) or even ask after it received the response to its s 359 notice of 5 December 2005 whether the difficulties in obtaining the information had ended. Given the application had been on foot since 19 September 2000, time was not a significant issue. 78 I consider the Tribunal gave Mr Bunnag ample time including an extended time to provide information and made a decision only after that time had lapsed. More than four months at that stage had passed since the actual hearing. Section 359C does not call for further inquiry into the reason why information or comments are not given. 79 In relation to this ground of appeal, I consider that no jurisdictional error is made out.

Ground 5 The learned Federal Magistrate erred in holding that the Appellant was given an opportunity to respond to information that may have lead to adverse findings in relation to the health of the sponsor/spouse and or that the requirements of s 359C(1) had been meet (sic) relation to the information as to the wife's mental health. 80 In my view, this ground fails for the same reason as ground 4.

Ground 6 The learned Federal Magistrate erred in holding that the decision of the MRT was not unreasonable in the circumstances set out on the decision of the learned Federal Magistrate and in particular to why the material before the MRT was limited to "available evidence". 81 This ground expresses in another way, again, the central argument which I have rejected. In my view the Tribunal discharged its obligations under the Act in every respect in relation to the issues it was required to determine for the purposes of the application. This ground also fails.

Grounds 8, 9 and 10 8. The learned Federal Magistrate erred in failing to hold that the MRT made a decision in excess of its jurisdiction by failing to consider the exercise of the powers given by s 353(1), 363(1)(a) and (3)(a) of the Migration Act where the Appellant was not able to obtain information about the mental health of the sponsor/spouse without intervention of the MRT. 9. The learned Federal Magistrate erred in holding there had been no request by the Appellant for the Tribunal to exercise the powers given by s 353(1), 363(1)(a) and (3)(a) of the Migration Act. 10. The learned Federal Magistrate erred in failing to construe s 362 of the Migration Act as limited to proceedings relating to Bridging visas referred to in s 338(4). 83 These grounds relate to whether the Tribunal should have exercised the powers that it had to obtain evidence pursuant to s 353 and s 363 of the Act and that its failure to do so constituted jurisdictional error which should have been recognised by the Federal Magistrates Court. Taking s 353 to refer to s 359(1), which was the section argued before the Federal Magistrate, it is true that the Tribunal's powers extend to a power to request the making of an investigation or medical examination or to summons a person to appear before the Tribunal and to produce documents. 84 As I have previously observed, in my view the mental health of the sponsor was not a 'critical issue'. There was a significant body of material before the Tribunal other than the sponsor's mental health. The highest the Tribunal's reference to her health is placed is when it concluded that it could not attach much weight to the sponsor's health as an explanation for her frequent absences from the home and the evidence does not show 'the nature, extent and duration' of the her health issues. Other than a technical explanation of the health issue, Mr Bunnag had ample opportunity to answer the Tribunal's questions in relation to the nature, extent and duration of her health issues, hospitalisation etc during the relevant period. 85 The absence of evidence on the health issues was just one of the issues on which there was an absence of evidence in the context of a five year relationship according to the Tribunal. In my view the issue is not critical and ample opportunity, in any event, had been afforded to Mr Bunnag to provide information from a lay perspective which would deal with the specific questions which had been put to him by the Tribunal. 86 This case is therefore quite distinguishable from Le [2007] FCA 1318. In that case a statement to the effect of withdrawal of sponsorship because the marriage relationship had ended had been mistranslated. It is also clearly distinguishable from SZJBA v Minister for Immigration and Citizenship (2007) 98 ALD 270. See also SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [29].

CONCLUSION 88 As all the grounds fail, the appeal will be dismissed. The appellant is to pay the costs of the first respondent to be taxed or agreed. I certify that the preceding eighty -eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Counsel for the First Respondent: JD Allanson QC

Solicitor for the First Respondent: Australian Government Solicitor