Chey v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 5 So far as the Tribunal was concerned, the principal issue was whether Mr Chey was "the spouse of the sponsoring spouse", as required by cl 100.221(2)(b) of the Regulations at the time it came to make its decision. 6 The relevant facts were as follows: (a) On 7 July 2003, Ms Tong, through a migration agent, wrote to the first respondent's Department stating that the spousal relationship had been "in question" since November 2002; that she and Mr Chey had separated in March 2003 and were living apart; that Mr Chey had moved from Sydney to Melbourne; and that she feared for her safety and for that of her family in Cambodia, having been threatened by Mr Chey not to report him to the Department. (b) On 12 August 2003, the Department wrote to Mr Chey advising that it had received information that the relationship had ceased and inviting him to provide additional information and documentation to enable further consideration of his application for a permanent visa. (c) On 11 November 2003, Ms Tong telephoned an officer of the Department, who recorded that she stated that Mr Chey wanted her to go to Melbourne to "sign papers" and would be sending her a ticket; and that she was scared about what he might do to her or her family and would be going to Melbourne. (d) On 3 December 2003, Erskine Rodan & Associates ("Erskine Rodan"), who acted on behalf of both Mr Chey and Ms Tong, provided further information to the Department, this time asserting that they remained in a genuine spousal relationship and that they had lived apart because Mr Chey could not find work in Sydney. The documentation supplied included statutory declarations made by Mr Chey and Ms Tong. (e) In September 2004, as noted previously, the first respondent's delegate refused to grant Mr Chey a permanent visa and he applied to the Tribunal for review of this decision. (f) On 8 December 2004 and 22 August 2005, Erskine Rodan provided further information to the Tribunal in support of their clients' claim to have a genuine spousal relationship. (g) On 22 September 2005, pursuant to s 359 of the Migration Act 1958 (Cth) ("the Act"), the Tribunal wrote to Mr Chey inviting him to provide additional information, which the Tribunal received on 12 October 2005. (h) On 25 November 2005, an officer of the Tribunal spoke to Ms Tong (at the Tribunal's request) concerning the disclosure to Mr Chey of information she had given the Department about him in 2003. Ms Tong said that she did not want this information disclosed to Mr Chey because she "did not want to ruin their relationship". She also advised that she and Mr Chey had a child. (i) On 2 December 2005, pursuant to s 359A of the Act, the Tribunal wrote to Erskine Rodan as Mr Chey's migration agent inviting Mr Chey to comment on information relevant to the existence of a genuine spousal relationship. This information was the information that Ms Tong had given to the Department in 2003. (j) On 5 December 2005, the Tribunal invited Mr Chey to attend a hearing on 19 January 2006. (k) By letter dated 16 December 2005, received at the Tribunal on 20 December 2005, Erskine Rodan, on behalf of Ms Tong, responded to the Tribunal's letter of 2 December 2005. Amongst other things, Erskine Rodan stated that whilst "there were very serious problems in the marriage from late 2002 until the couple settled together in Melbourne in late 2003", the marriage was "now going well". Further, Ms Tong was "extremely concerned" about the effect of disclosing her communications with the Department on her relationship with her husband and, on this account, the information referred to in the s 359A letter had not been conveyed to him. Erskine Rodan asked the Tribunal to hear Ms Tong's evidence on this issue in the absence of Mr Chey. (l) On 23 December 2005, the Tribunal replied to Erskine Rodan, stating that it no longer regarded the firm as Mr Chey's representative on account of the failure to provide Mr Chey with the Tribunal's s 359A letter; and that it would "be canvassing the material…at the hearing" in Mr Chey's presence. (m) Also on 23 December 2005, Erskine Rodan replied, stating, amongst other things, that the relevant documents had been given to Mr Chey and that their contents had been explained to him. (n) On 11 January 2006, Mr Chey and Ms Tong each lodged further statutory declarations with the Tribunal, in which they responded to the information sent by the Tribunal in its s 359A letter. Mr Chey denied ever threatening Ms Tong or her family and asserted that he did not ever consider the marriage to be over. Ms Tong affirmed that she had not been threatened by Mr Chey, but was angry with him because she believed that the marriage was not working out and that he had a girlfriend in Cambodia. Ms Tong went on to say that things had got better after they settled in Melbourne and after the birth of their son. (o) On 19 January 2006, the Tribunal held a hearing at which Mr Chey, Ms Tong, two of their friends and Mr Chey's mother gave evidence with the assistance of an interpreter and a representative of Erskine Rodan. 7 The Tribunal stated that it was "perplexed by the inconsistencies in the evidence", which it said supported three different versions of events. In summary, these versions, as described by the Tribunal, were: (1) Mr Chey was not committed to a shared life with Ms Tong and was exploiting her for migration purposes; (2) Mr Chey was committed to a shared life with Ms Tong; or (3) Mr Chey was committed to shared life with Ms Tong but at the time of the July 2003 letter to the Department and her telephone conversation in November 2003 with a Departmental officer, she thought, without justification, that Mr Chey was exploiting her for migration purposes. The Tribunal rejected the submission made on behalf of Mr Chey and Ms Tong that Ms Tong made false accusations in July and November 2003 out of anger and jealousy. The Tribunal found that, if they were initially in a genuine spousal relationship, it deteriorated quickly after Mr Chey's arrival in Australia; that Mr Chey and Ms Tong separated in March 2003; and that Ms Tong's conduct in 2003 was the behaviour of a person frightened of Mr Chey. The Tribunal found: "…the parties concealed their true circumstances and declared false statements in their statutory declarations of 1 December 2003, gave false instructions to their agent (reflected in her submission of 1 December 2004) and declared false statements in their statutory declarations of October 2005. As indicated below this undermines their credibility as witnesses of the history of their relationship and the nature of their relationship at the time of this decision." 8 The Tribunal also made the following findings.

• Mr Chey and Ms Tong married each other in Cambodia in 2001 and, at the time of decision, remain married under a marriage that is recognised as valid for the purposes of the Act.
• Mr Chey and Ms Tong had not accumulated major assets or incurred significant liabilities together but it would be unreasonable to expect them to have done so given limited financial resources. The Tribunal was not satisfied that a joint bank account was "not opened purely to counter the Department's assertion…that the relationship had ceased". The Tribunal was also not satisfied that Mr Chey's nomination for superannuation purposes of Ms Tong as a beneficiary reflected a genuine combination of assets.
• The Tribunal was not satisfied that Mr Chey and Ms Tong had resided together since Ms Tong moved to Melbourne in November 2003 to assist him with "stage 2" of his visa application. Even if the Tribunal accepted that they were and are residing together, it was not satisfied that the resumption of cohabitation reflected a genuine relationship and was not the product of ongoing duress by Mr Chey on Ms Tong to see the process culminate in the grant of a visa.
• The evidence in relation to the social aspects of the relationship was equivocal.
• Mr Chey had intimidated Ms Tong with threats of violence against her and her family in Cambodia should she notify the Department about the end of the relationship in March 2003. Even if Mr Chey and Ms Tong were in a spousal relationship at the time of the application and at the time of Mr Chey's arrival in Australia, it had ceased in March 2003.
• From March 2003 until November 2003, Mr Chey and Ms Tong were not in a spousal relationship because elements of that relationship were missing. The Tribunal found that they resumed cohabitation in late 2003 in response to notification from the Department that it had become aware of the end of the relationship. The Tribunal was not satisfied that the "the resumption of cohabitation was entered into voluntarily by [Ms Tong]" and found that Ms Tong was intimidated by threats to move to Melbourne. 9 The Tribunal noted that Mr Chey and Ms Tong had a child together, which it considered was "usually a very strong indicator of commitment" as well as other factors that supported the appellant's case, but said that these matters were "outweighed by the other evidence". The Tribunal concluded: "Although the relationship resumed to the extent that [Ms Tong] has had a child the Tribunal is not satisfied that the relationship at the time of the decision has the degree of mutual support and companionship contemplated by regulation 1.15A. In light of the intimidation of [Ms Tong] by [Mr Chey] and the parties' preparedness to make false statements in statutory declarations, the Tribunal is not satisfied that the time of decision evidence is reliable. The Tribunal is not satisfied that [Mr Chey's] continued association with [Ms Tong] reflects his commitment to a shared life with her and is not merely a façade maintained to secure permanent residence." The Tribunal therefore found that Mr Chey did not meet the essential criteria for the grant of a permanent visa because he was not in a genuine spousal relationship with Ms Tong.

THE FEDERAL MAGISTRATE'S DECISION 10 In the Federal Magistrates Court, Mr Chey relied on four grounds, all of which the Federal Magistrate rejected. His Honour found that the Tribunal had given Mr Chey a sufficient opportunity to present his case and that there was therefore no breach of s 360 of the Act, as Mr Chey alleged. His Honour rejected the proposition that the Tribunal had not allowed Mr Chey to put his case. There was no indication that it sought to exclude material filed on his behalf. Further, Mr Chey's representative was given an opportunity to clarify or revisit points arising from his evidence, and both Mr Chey and Ms Tong were given the opportunity to make further submissions at the conclusion of the evidence. 11 The Federal Magistrate also held that the Tribunal had dealt adequately with Mr Chey's claims, in particular in relation to the child of the relationship, and that it had correctly identified the task it was undertaking. His Honour noted that the Tribunal expressly referred to the witnesses' evidence and held that, given the inconsistencies in that evidence, it was open to the Tribunal to reach the conclusion that it did on the issue of credit. His Honour found that the Tribunal expressly considered the statutory requirements, and in doing so correctly identified the task that it was required to undertake. Additionally, whilst his Honour agreed that the Tribunal did not give the birth of a son to Mr Chey and Ms Tong "extensive attention", he did not find this a sufficient basis on which to impute error. So far as his Honour was concerned, Mr Chey's complaints in this regard went to weight, which was a matter solely for the Tribunal. 12 In relation to the exchange of letters in December 2005, the Federal Magistrate found that both the Tribunal and Erskine Rodan were seeking to attain an end that could fairly be seen to be reasonable. His Honour also held that, although there appeared to have been some tension between the Tribunal and Mr Chey's representative during the review process, looking at all the material, a fair minded lay observer would not reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the matter for decision. 13 Finally, the Federal Magistrate found that the Tribunal expressly referred to the statutory requirements and dealt adequately with reg 1.15A(3) of the Regulations.

APPEAL TO THIS COURT 14 Mr Chey appeals to this Court on five grounds. As stated in the notice of appeal, these grounds were that the Federal Magistrate erred in failing to find that: "(i) The Tribunal had acted in breach of s. 360 of [the Act] in that the invitation to appear before the Tribunal 'to give evidence and present arguments relating to the issues arising in relation to the decision under review' was, in the circumstances of the case, a hollow shell or empty gesture; (ii) The Tribunal had failed to carry out is statutory task to review the decision of the delegate, in that it was so overborne by its findings as to the credit of the applicant and his wife regarding events in 2003, that it failed to consider the case put forward by the Appellant as to the state of the relationship at the time of decision; (iii) In the alternative, the Tribunal had failed to consider the case being put by the Appellant as to the state of the relationship as at the time of decision; (iv) The Appellant was denied the opportunity to properly put his case to the Tribunal, giving rise to a reasonable apprehension that the Tribunal member was biased against his cause; (v) The Tribunal had failed to consider and/or make findings on each of the matters referred to in Reg. 1.15A(3)(a) to (d) of [the Regulations] which matters were relevant considerations that it was bound to take into account."

CONSIDERATION 15 In essence, there are four matters for consideration. Ground 1 challenges the conduct of the hearing. Grounds 2 and 3 challenge the way the decision was made. Ground 4 alleges reasonable apprehension of bias. Ground 5 requires consideration of what the Tribunal must do in connection with reg 1.15A(3) of the Regulations. The conduct of the hearing 16 Counsel for the appellant contended that an analysis of the transcript of the hearing demonstrated that the Tribunal acted in breach of its obligation under s 360(1) of the Act to invite the appellant to appear before it to "give evidence and present arguments relating to issues arising in relation to the decision under review". This was because the Tribunal did not identify the critical issue upon which its decision turned in order that the appellant might present evidence and argument about it. The appellant's argument accepted that it was proper for the Tribunal to question him and Ms Tong on matters affecting their credit and, in particular, to question them about what had occurred in 2003 and Mr Chey's knowledge of Ms Tong's family. Counsel argued, however, that, examination of the transcript showed that, in the course of the hearing, the Tribunal barely addressed the critical question. This was whether there was a genuine spousal relationship at the time of the decision between Mr Chey and Ms Tong. As a result, Mr Chey was denied the opportunity properly to put his case. In the appellant's submission, at the hearing the Tribunal did not address what had happened to the appellant and Ms Tong over the previous two years (that is, in 2004 and 2005) and the appellant was not challenged about these matters. In the appellant's submission, the fact that, in response to the Tribunal, the appellant said that he had nothing further to add and that he did not make any subsequent application to provide further materials did not cure the essential defect in the hearing. 17 Counsel for the first respondent submitted that there was no breach of s 360(1), bearing in mind that the Tribunal invited Mr Chey to a hearing, at which he was given the opportunity to give evidence and present any arguments that he considered relevant to his review application. He was given the opportunity to address, at the hearing, the issues that arose in relation to the decision under review. The respondent specifically noted that Mr Chey was asked at the hearing whether he wanted to add anything further and that he made no application for the admission of any more evidence. According to the first respondent, the Tribunal was entitled to focus at the hearing "on those matters it considered of relevance in considering whether the parties were in a spousal relationship as at the date of its decision" (emphasis original). 18 The parties' submissions as to the reach of s 360(1) of the Act require some consideration as to the nature of the obligation that the provision imposes. The Act, in s 360(1), requires the Tribunal to "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". It is convenient to note here that obligations under s 360(1) are equivalent to the obligations imposed on the Refugee Review Tribunal by s 425(1). The Tribunal is not bound to extend an invitation to an applicant under s 360 (cf s 425), if it considers that "it should decide the review in the applicant's favour on the basis of the material before it": see ss 360(2) and 425(2). 19 The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act. This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 ("SCAR") at 561 per Gray, Cooper and Selway JJ. 20 The authorities establish that, where the Tribunal is not minded to make a decision on the papers in favour of an applicant, s 360(1) requires that there not only be an invitation but also the hearing to which the invitation refers, which affords an opportunity to the applicant to present evidence and arguments to the Tribunal. Although s 360(1) focuses on the invitation, as opposed to the subsequent hearing, the hearing that s 360(1) contemplates must take place and, in substance, afford an opportunity to present evidence and arguments on the issues arising in relation to the decision under review. 21 Thus, the Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari in circumstances in which, unknown to the Tribunal, on account of his father's recent death, at the time of the hearing, the review applicant was suffering from extreme distress. The Full Court had regard to the obligation that s 425(1) (and therefore s 360(1)) imposed and acknowledged, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture". It added at 561: "It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; not does it require the Tribunal to carry out an inquiry in order to identify what the case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation." 22 Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 ("NAQF") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF, at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue". 23 SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 ("SZBEL"). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that: "The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original) This reference to s 425(1) applies equally to s 360(1) of the Act. 24 The issues to which ss 425(1) and 360(1) refer are to be identified by the tribunal: see SZBEL at 600. Thus, at 602, the joint judgment said: "First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where…there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted." (Emphasis original) This does not mean that the Tribunal is required to comment on what it thinks about the evidence that is given as it is given. It does mean, however, that the Tribunal must conduct itself in a way that takes account of the inquisitorial nature of its review process: cf ss 361(3), 362(2) and 363(3). 25 In the circumstances of SZBEL, the Full Court held that the review applicant was not on notice that two aspects of his account were in issue because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues: see SZBEL at602. The Full Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these issues. 26 I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B; see also Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL. I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1), which was said to define the nature of the opportunity to be heard. 27 In this case, pursuant to s 360(1), the Tribunal invited Mr Chey to appear before it to give evidence and present arguments. There was a hearing at which Mr Chey, Ms Tong, their friends, and Mr Chey's mother gave evidence. Mr Chey and Ms Tong were accompanied at the hearing by a representative of Erskine Rodan. No-one suggests that the Tribunal actively endeavoured to exclude any material that the appellant sought to present. I accept, however, as the appellant submitted, that the authorities show that these facts, though important, are not necessarily dispositive. 28 Almost the entire focus of the hearing in this case was on the communications made by Ms Tong to the Department in July and November 2003, and the events around this time. The transcript of the hearing, which covers some 73 pages, shows that the Tribunal directed almost all its questions to the events of 2003 and, in particular, Ms Tong's communications with the Department in July and November that year. This was the subject matter of almost all the questions that the Tribunal directed to Mr Chey, although, in the course of this line of questioning, the Tribunal also asked some questions as to how much Mr Chey knew about her family. Virtually all the Tribunal's questions of Ms Tong were also addressed to her communications with the Department and to relevant events in 2003, and to a lesser extent to her relationship with her family. The Tribunal limited its questions about the genuineness of Mr Chey's relationship with Ms Tong to the following: Tribunal member: You've attended today with your wife and child. When was your child born? Interpreter: He born at 7 April 2005, around 3 to 4 o'clock in the afternoon. Tribunal member: Do you say that you and Channy are in a genuine, committed relationship? Interpreter: Yes, husband and wife. Tribunal member: And that you're committed to a shared life together into the future as husband and wife? Interpreter: Yes, we live together, we go everywhere together. The Tribunal did not ask Ms Tong about her commitment to Mr Chey, or the genuineness of her relationship with him. The Tribunal did not ask either Mr Chey or Ms Tong about their relationship in the two years after Ms Tong's 2003 communications with the Department, which preceded the hearing. It did not ask her about their living and working arrangements during this period, or about the effect of significant events, such as the birth of their child, on the relationship. The Tribunal asked very little of the friends who attended to give evidence, although they were both in a position to comment on the relationship over the previous two years. 29 I accept, as the appellant submitted, that critical issues for the Tribunal were whether at the time it came to make its decision (March 2006) it was satisfied that Mr Chey and Ms Tong had a mutual commitment to a shared life together and that their relationship was genuine and continuing. At the time of the primary decision, in September 2004, the first respondent's delegate had determined these issues against them. In a broad sense, the appellant ought to have been aware of the nature of the issues that might arise on review. The Tribunal's s 359 letter ought to have confirmed this for them. Indeed, the documentary material lodged with the Tribunal showed that Mr Chey and Ms Tong appreciated that their financial, household and social arrangements were relevant. Further, given the Tribunal's s 359A letter, they were on notice that Ms Tong's 2003 communications were relevant too. Since, however, almost one and a half years had passed since the delegate's decision, the body of evidence concerning their spousal relationship had necessarily changed (for example a child had been born). Hence, the issues arising in relation to the decision under review (as at the date the Tribunal made its decision) were likely to differ to some extent from the issues that concerned the delegate when the primary decision was made. 30 At the hearing the Tribunal was required to identify the issues arising in relation to the decision under review, in order that the review applicant (here, Mr Chey) might present evidence and argument about them. As it happened, however, the overwhelming focus of the hearing was on the events of over two years earlier. Almost the only matters addressed at the hearing concerned Ms Tong's communications in 2003 and the events relevant to it. Plainly enough, this was not the only issue arising in relation to the decision under review, although, from the Tribunal's perspective, it was an important one. Other issues arose concerning Mr Chey's and Ms Tong's financial and living (including household) arrangements as at the date of the decision, as well as the significance, in terms of commitment, of the birth of their child and other relevant matters. There were also the social aspects of the relationship to be considered as at the date of the decision. This much is made plain by the Tribunal's reasons for decision, in which it made a number of adverse findings against Mr Chey (and Ms Tong) on these matters. At the hearing, the Tribunal did not, however, identify these matters as of potential importance to its decision, in order that the appellant might have the opportunity to expand and explain why his account should be accepted. This was not, moreover, a case in which the Tribunal's statements or questions showed that everything the appellant put forward was in issue. On the contrary, by focusing on one subject only, the appellant (and Ms Tong) might have been led to believe (mistakenly) that if they satisfied the Tribunal about it, then the Tribunal would be satisfied about the remaining issues in the case. Put another way, the appellant and Ms Tong might have been misled to believe that, so far as the Tribunal was concerned, almost the only obstacle in their path was the information given by Ms Tong to the Department in 2003. Save for the matter of Ms Tong's family, the Tribunal did not identify that it had any issue with Mr Chey's or Ms Tong's account of their life together in 2004 and 2005, including their financial, household or social arrangements, such that the Tribunal would reject their "date of decision" evidence, as it did. 31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL. The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error. 32 The fact that the appellant was assisted at the hearing by Erskine Rodan's representative does not diminish the force of the appellant's criticism of the hearing. The representative's participation in the hearing was significantly constrained by the Act and, although the representative protested about the narrow focus of the Tribunal's inquiry, there was little more than the representative could usefully have done. Section 366A(2) denied the representative the right to present arguments or to address the Tribunal "unless the Tribunal [were] satisfied that, because of exceptional circumstances, [she] should be allowed to do so". Bearing this in mind, whether or not a review applicant has assistance, the Tribunal is obliged to provide for a hearing on "the issues arising in relation to the decision under review", which in a case such as this obliged it to identify the issues in order that the review applicant would have an opportunity to present evidence and argument on them. 33 In answer to the representative's criticism of his narrow focus, the Tribunal member referred to the material already in the Tribunal's possession and to the fact that he had previously asked for further information in a letter sent to the appellant under s 359 of the Act. He commented that, "I've received the evidence. So I didn't think that I had to go over that again." This did not meet the point. The appellant's case was not that he had been stopped before the hearing from lodging material for the Tribunal's consideration. It was that the Tribunal had not identified what it saw at the time of the hearing as the issues arising on the review, in order that the appellant might present evidence and argument about them at the hearing. 34 Further, I accept that appellant's submission that this defect was not cured by the Tribunal's addressing a general invitation to Mr Chey at the conclusion of the hearing to add anything further that might occur to him. The timing and context made it clear enough that the Tribunal was not inviting Mr Chey, through his interpreter, to give any further evidence. Moreover, unless the Tribunal had identified what it saw as the issues arising, there was nothing that the appellant might usefully add, either at or after the hearing. Manner in which the decision was made 35 Counsel for the appellant made what he termed an alternative submission, which was that, because of its conduct of the hearing, the Tribunal "was not in a position to properly consider the appellant's claim to be in a spousal relationship as at the date of decision"; and, if it did so, the Tribunal "was overborne by the issues as to credit" and failed to carry out its statutory task. If it matters, I would not regard this submission as a true alternative to the s 360 submission (considered above at [16]-[34]). Counsel argued that the Tribunal did not address all the witnesses' evidence, and submitted that matters relating to the birth of the child to Mr Chey and Ms Tong were not properly considered. The Tribunal's consideration of the appellant's case as regards significant matters such as this was, so counsel argued, so perfunctory that it did not amount to consideration of his claims at all. 36 Counsel for the first respondent argued that the question of whether a person is a "spouse" is essentially a question of fact and evaluation for the decision-maker. The first respondent submitted that the Tribunal's reasons disclosed that it considered the matters required by reg 1.15A(3) before deciding that it was not satisfied that the appellant was in a spousal relationship with Ms Tong at the date of its decision. Counsel for the first respondent characterised the appellant's complaint as being with the Tribunal's process of reasoning on issues of fact, and submitted that the appellant's argument was simply an invitation to review the merits of the Tribunal's decision. Counsel argued that the Tribunal was not overborne by issues going to credit but properly considered matters relevant to the assessment of credit and, in consequence, made adverse credit findings as it was entitled to do. Further, referring to a passage in the judgment of Bennett J in SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 at [31], counsel for the first respondent submitted that "there was no particular threshold that was required to be satisfied before the Tribunal was entitled to disbelieve the claims advanced by the appellant". 37 The Tribunal's reasons for decision were detailed. They recited most of the evidence that had been given by Mr Chey and Ms Tong. I accept, as the first respondent submitted, that the question whether Mr Chey was the "spouse" of Ms Tong was essentially a question of fact. There may be errors in the Tribunal's reasoning in finding facts, or errors in the fact-finding, but this will not amount to jurisdictional error (unless there is error in the finding of a jurisdictional fact): see Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 481-482 per McHugh J. The appellant's submissions in this part of his case took issue with the Tribunal's process of reasoning on issues of fact. No jurisdictional error is made out under this head.

Apprehended bias 38 Counsel for the appellant relied on the conduct of the Tribunal before and during the hearing, as well as the decision of the Tribunal as a whole, to support the proposition that a reasonable observer would consider that the Tribunal had brought a closed mind to the issues under consideration. Amongst other things, he referred to the Tribunal's letter of 23 December 2005 and the transcript of the hearing. 39 Counsel for the first respondent submitted that there is nothing in the Tribunal's approach to indicate that it acted with prejudgment. Counsel contended that no conclusion as to an apprehension of bias ought to be drawn based merely on the fact that the transcript of the Tribunal hearing showed some tension between the Tribunal member and the Erskine Rodan representative. 40 The High Court in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 discussed the test for apprehended bias in administrative proceedings. In their joint judgment at 434-435, Gleeson CJ, Gaudron and Gummow JJ said: "The test is for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the question of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of 'a fair-minded lay observer' when, as is the case with the tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof." As their Honours noted, in a case such as the present, in considering the matter of apprehended bias, the non-curial and inquisitorial nature of the proceeding is to be borne in mind. 41 For the reasons I am about to state, no case of apprehended bias is made out. The Tribunal's letter of 23 December 2005 indicated that the Tribunal was dissatisfied with Erskine Rodan's conduct as the appellant's representative, not that it had taken an adverse view of the appellant's claims. I would not regard the Tribunal's direct communication with Ms Tong as amounting to evidence of prejudgment on the Tribunal's part, as the appellant suggested at one stage: cf with s 379G(4) which permits the Tribunal to communicate orally with a review applicant providing it gives the "authorised recipient" notice of the communication. There is no other indication of prejudgment on the Tribunal's part prior to the hearing. 42 At the hearing, the Tribunal member was irritated, even annoyed, by the appellant's representative's conduct, especially in interrupting him. The transcript shows that the Tribunal member and the appellant's representative disagreed about various matters relating to the conduct of the hearing. Relatively early in the hearing, the representative expressed her disquiet about the Tribunal member's questions to Mr Chey concerning Ms Tong's family. The Tribunal member asked her to refrain "from interrupting my questioning. I'm asking those questions for a reason." When the representative persisted, the member said: "I'm not going to respond to that. I'm in the middle of questioning." When she reiterated her disquiet, the Tribunal member said: "The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficult enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further." This led to the following exchange: "Representative: I think you need to think very carefully about the questions and whether they're relevant to the marriage. Tribunal member: The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficulty enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further---- Representative: If you continue to ask those questions that are not relevant I am going to interrupt, because I think it's inappropriate. Tribunal member: It's not your position to gainsay the appropriateness or otherwise of the tribunal's questions. If you, at the end of the hearing, feel that there's been a jurisdictional error then you would be aware of the avenues open to you. Representative: Absolutely. Tribunal member: So that would be the appropriate course of action, but to interrupt me whenever you form the view that I'm asking an irrelevant question is, in my view, inappropriate. Representative: I do that very, very rarely, but this is about Channy's family and there are particular complications that you're not aware of and I think you need to question her. Tribunal member: Again, you're (indistinct) question to me, or you're indicating that I shouldn't be asking certain questions that I should be putting to another witness. Now, that to me is stepping beyond your role, quite clearly, as a representative. Your role as a representative is to assist the --- … Tribunal member: It's in your perception it's assisting me. That's not my perception. In fact, my perception is it's hindering me and I'll ask you to refrain from doing that. Representative: I'm going to say what I believe needs to be said and if you want to do what ever you like about that you can do so. Tribunal member: You would be aware of the provisions under the act that go to the role of the representative." 43 Later in the hearing, after the Tribunal member had questioned Mr Chey further, the representative sought to draw the member's attention to the fact that an inconsistency in a document was due to her mistake. The member responded "Well, I'm asking - look, I'm not going to justify every question that I ask". There was a similar exchange between the Tribunal and the representative during Ms Tong's evidence, in the course of which the representative said: "You're misleading the girl…You're going over and over the same thing and misleading her". The Tribunal responded that "I'm revisiting it and you're interrupting me". 44 On the basis of these exchanges, a fair-minded lay observer would doubtless conclude that the Tribunal and the representative were each attempting to discharge their duties in the way they thought proper. Whilst the Tribunal member was irritated, even annoyed, he did no more than seek to confine the representative to what he saw as her proper role. She, on the other hand, sought to do no more that assist the appellant to the best of her ability within the constraints of the Tribunal's statutorily-mandated process. In this context, there is no basis for saying that a fair-minded lay observer might reasonably apprehend that the Tribunal might be biased against the appellant. 45 It might be said that the Tribunal's emphasis on Ms Tong's 2003 communications with the Department, to the exclusion of other matters, might suggest to an observer that the Tribunal might have concluded prior to the hearing that the appellant's claim to a genuine spousal relationship was bogus and he had closed his mind to any other possibility. But I do not think that this would be the view of a fair-minded observer, who was properly informed. I accept that the Tribunal's concentration on the events of 2003 might have left Mr Chey with the sense that he had not been given a fair hearing. I doubt, however, that a fair-minded observer, properly informed, might reasonably apprehend that the Tribunal might not bring an impartial mind to the review, on this account alone or taken with the other matters already mentioned. Such an observer would know that it was to be expected that the Tribunal would question the appellant about such matters, in order that the appellant might have the opportunity to respond. Knowing this, I do not consider that a fair-minded observer might draw any inference that the Tribunal might have a closed mind, notwithstanding the Tribunal did not address any other matters (apart from issues relating to Ms Tong's family). 46 The reasonable apprehension of bias ground is thus not made out. Failure to consider reg 1.15A(3) matters 47 Regulation 1.15A(3) of the Regulations provides that, in forming an opinion as to whether persons are in a married relationship, the Minister (and thus his delegate and the Tribunal) must have regard to "all of the circumstances of the relationship" including, in particular, "the financial aspects of the relationship", "the nature of the household", "the social aspects of the relationship", and "the nature of the persons' commitment to each other". Regulation 1.15A(3) specifies consideration of various other matters under these broad headings. Thus, reg 1.15A(3)(b) provides that the decision-maker: "…must have regard to all of the circumstances of the relationship, including, in particular: (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…" 48 Counsel for the appellant contended that the Tribunal did not specifically consider all matters that reg 1.15A(3) required it to consider and, in particular, the Tribunal did not consider "any joint responsibility for care and support of children" as mandated by reg 1.15A(3)(b)(i). In written submissions, counsel argued that "the Tribunal did not address this as a relevant consideration, rather than as a piece of evidence to be weighed in the balance with other evidence". The appellant submitted that the Tribunal "failed to appreciate the significance of the fact of there being a child of the relationship". In written submissions, expanded on at the hearing of the appeal, the first respondent contended that "[t]he Tribunal was not required to make express findings about each of the matters referred to under each of the subheadings of reg 1.15A(3) or to give express consideration to all material before it, in order to complete its jurisdictional task". 49 The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788, cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 ("Zhang") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard." 50 The Tribunal's reasons refer to reg 1.15A(3), as well as the birth of the child. The Tribunal discussed "the evidence and issues" relevant to a spousal relationship under headings appropriate to a discussion relevant to reg 1.15A(3). Under the headings "[t]he social aspects of the relationship" (reg 1.15A(3)(c)) and "[t]he nature of the persons' commitment to each other" (reg 1.15A(3)(d)), the Tribunal referred to the birth of the child to Mr Chey and Ms Tong. The reference in connection with subparagraph (d) is more detailed than in connection with subparagraph (c). In connection with subparagraph (d), the Tribunal made the comment referred to previously that "the parties have had a child together, [which was] usually a very strong indicator of commitment", although not, for the reasons stated by the Tribunal, to be treated as such in the present case. The Tribunal subsequently commented, that "[a]lthough the relationship resumed to the extent that the sponsor has had a child the Tribunal [was] not satisfied that the relationship at the time of this decision has the degree of mutual support and companionship contemplated by regulation 1.15A". 51 The Tribunal made no finding about "any joint responsibility for care and support" of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35], reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case. 52 Zhang is illustrative of a case in which the failure to make relevant findings did not lead to a holding that the decision-maker had failed to take into account the requisite matters: see Zhang at [19]-[20]. The decision shows that it is unnecessary for a decision-maker to "laboriously evaluate seriatim each of the considerations in reg 1.15A(3)". In that case, it was enough that the Tribunal considered the relevant evidence under the topics referred to in the regulation (as the Tribunal did in the present case). 53 Examination of the Tribunal's reasons in the present case and, in particular, its consideration of the evidence relevant to reg 1.15A(3), also shows that the requisite matters were considered and are reflected in the Tribunal's findings to the extent they are relevant. Under the heading, "[t]he nature of the household" (the subject of reg 1.15A(3)(b), the Tribunal made its finding that it was not satisfied that the appellant and Ms Tong were residing together in Melbourne (and if they were, then it was not satisfied that the relationship was genuine). This was relevant, amongst other things, to reg 1.15A(3)(b)(ii). In light of this finding, it was open to the Tribunal to determine that it was unnecessary to say anything specifically about either any joint responsibility for care and support of their child (the subject of reg 1.15A(3)(b)(i)) or shared responsibility for housework (the subject of reg 1.15A(3)(b)(iii)). Accordingly, I would not infer from the Tribunal's failure to mention the issue of joint child care and support that the Tribunal did not consider it or any other matter it was bound to consider. 54 Jurisdictional error is not established under this ground.

DISPOSITION 55 For the reasons stated, the appellant has established jurisdictional error as a result of a breach of s 360(1) of the Act, although he has not succeeded on his other grounds. The appeal should therefore be allowed. I would make orders accordingly. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 8 June 2007 Counsel for the Appellant: Mr G. Gilbert

Solicitors for the Appellant: Erskine Rodan & Associates

Solicitors for the First Respondent: Australian Government Solicitor

Date of Hearing: 13 February 2007