Dang v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1101

Dang v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1101 | Case summary | Zoe

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The applicants, including the first applicant, Ms Trang Phuong Dang ("Ms Dang") filed an application for judicial review ("Judicial Review Application") on 5 April 2019 in the Adelaide Registry of the Court, and subsequently filed an amended application for judicial review on 25 August 2023 ("Amended Judicial Review Application") under s 476 of the Migration Act 1958 (Cth) ("Migration Act").
In these Reasons for Judgment all references to sections of an Act are reference to the Migration Act, and references to regulations, clauses and schedules are references to provisions of the Migration Regulations 1994 (Cth) ("Migration Regulations"), unless otherwise indicated.
The Amended Judicial Review Application seeks judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal Decision" and "Tribunal" respectively) handed down on 7 March 2019. The Tribunal Decision affirmed a decision of a delegate ("Delegate's Decision" and "Delegate" respectively) of the first respondent, now the Minister for Immigration and Citizenship ("Minister") of 27 November 2014 not to grant Ms Dang a Partner (Migrant) Class BC visa ("Permanent Partner Visa").
The second, third and fourth applicants in the Amended Judicial Review Application are Ms Dang's adult children, and their visa status in relation to the Amended Judicial Review Application is dependent upon the grant or refusal of Ms Dang's Permanent Partner Visa application: Migration Act s 140(1); see also Rani v Minister for Immigration and Multicultural Affairs [1997] FCA 1493; (1997) 80 FCR 379; (1997) 49 ALD 619; Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32. For convenience the applicants will hereafter generally only be referred to by reference to the first applicant, Ms Dang.
The matter was docketed to the presently presiding Judge in October 2022, and following a directions hearing on 23 November 2022, the matter was originally listed for hearing on 19 October 2023, but subsequently relisted to 22 April 2024. At the hearing on 22 April 2024 orders were made including the following order:

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(a) Ms Dang is a female citizen of Vietnam born on 1 January 1960;

(b) on 20 December 2011 Ms Dang simultaneously applied for a Partner (Provisional) (Class UF) (subclass 309) visa ("Provisional Partner Visa") and a Permanent Partner Visa (collectively "Partner Visas"), sponsored by her Australian citizen husband, Ba Van Nguyen ("Sponsor"): CB 12-35. Ms Dang's three children from a previous relationship also applied for the Partner Visas as members of her family unit;

(c) Ms Dang's visa application states that she met the Sponsor in Vietnam in April 2009 and they began their spousal relationship on 7 October 2010: CB 24 and 36;

(d) Ms Dang was granted the Provisional Partner Visa on 5 July 2012 and arrived in Australia on 9 November 2012: CB 197; Cai Affidavit, Annexure MC-1 at p 770;

(e) on 28 December 2012 the Minister's department ("Department") received an undated letter from the Sponsor, advising that he had moved out of the marital home on 19 December 2012 and that he wished to withdraw his sponsorship of Ms Dang: CB 227;

(f) on 8 January 2013 the Department notified Ms Dang of the Sponsor's withdrawal of sponsorship and advised her as to her options: CB 229

(g) in February 2013 Ms Dang emailed the Department claiming that she had suffered family violence and provided an interim intervention order ("Interim Intervention Order") of the Magistrate's Court of South Australia ("Magistrates Court") dated 30 January 2013, requiring the Sponsor not to assault, threaten, harass or intimidate Ms Dang: CB 241, 245, 249 and 343;

(h) on 8 April 2013 Ms Dang presented evidence in relation to the making of a "non-judicially determined claim of family violence" for the purposes of reg 1.23: CB 249;

(i) on 8 November 2013 the Magistrate's Court refused to make a permanent intervention order and revoked the Interim Intervention Order finding that Ms Dang had made false allegations against the Sponsor to enable her and her children to remain in Australia: CB 363-379 ("Magistrates Court Judgment");

(j) on 14 August 2014 the Department referred Ms Dang's family violence claim to an independent expert appointed under reg 1.23: CB 380, and on 9 October 2014 the independent expert provided the Department with an opinion that Ms Dang had not suffered family violence: CB 298-309 ("Independent Expert" and "Independent Expert's Opinion" respectively);

(k) on 27 November 2014 the Delegate's Decision was to refuse to grant Ms Dang a Permanent Partner Visa: CB 322-325;

(l) on 9 December 2014 Ms Dang applied to the Tribunal for merits review of the Delegate's Decision: CB 387-397;

(m) on 18 November 2015 the Tribunal affirmed the Delegate's Decision not to grant Ms Dang a Permanent Partner Visa: CB 528-536 ("2015 Tribunal Decision"). The 2015 Tribunal Decision concluded that Ms Dang and the Sponsor had not been in a genuine spousal relationship and therefore did not satisfy Sch 2, cl 100.221(4)(b), and the Tribunal did not find it necessary to make findings on Ms Dang's family violence claim;

(n) Ms Dang applied unsuccessfully to this Court for judicial review of the 2015 Tribunal Decision: CB 547; see also Dang v Minister for Immigration and Border Protection [2016] FCCA 1299. On appeal to the Federal Court of Australia, the 2015 Tribunal Decision was set aside by consent and the matter was remitted to the Tribunal for reconsideration: CB 553. The Minister accepted that in making the 2015 Tribunal Decision the Tribunal had denied Ms Dang procedural fairness by failing to advise her of the existence of a notification under s 375A: CB 555;

(o) on 10 August 2018 and 23 August 2018 the Department revoked the certificates and notifications previously issued under s 375A: CB 239 and 386;

(p) on 16 August 2018 Ms Dang requested access to the material before the Tribunal under s 362A: CB 576 ("Section 362A Request");

(q) on 24 August 2018 the Tribunal responded to the Section 362A Request: CB 585. As part of its decision, some documents were partially redacted and some were redacted in full: CB 585-586. The redactions related to personal information relating to persons other than the applicants. The Tribunal reasoned that the documents contained personal information about another person and it was not satisfied that disclosure was permitted under Australian Privacy Principle 6 ("APP 6") as set out in Sch 1 to the Privacy Act 1988 (Cth) ("Privacy Act"). Documents produced by the Tribunal in response to the Section 362A Request appear at Annexure MC-1 to the Cai Affidavit;

(r) on 13 September 2018, and notwithstanding that it already had access to a copy of the Magistrates Court Judgment, the Tribunal requested, amongst other things, that Ms Dang provide a copy of the Magistrates Court Judgment to the Tribunal: CB 593. The Magistrates Court Judgment had been placed on the Department's file and was the subject of a s 375A certificate dated 24 December 2014;

(s) on 24 October 2018 the reconstituted Tribunal conducted a hearing in relation to Ms Dang's review: CB 596;

(t) on 1 November 2018 under s 359A the Tribunal invited Ms Dang to comment on and respond to the Magistrates Court Judgment and adverse information from the Sponsor and other persons: CB 685 ("Invitation to Comment");

(u) on 15 November 2018 Ms Dang provided a response to the Invitation to Comment: CB 691 ("Invitation to Comment Response");

(v) on 8 January 2019 the Tribunal conducted a further hearing: CB 701; and

(w) on 7 March 2019 the Tribunal Decision again affirmed the Delegate's Decision not to grant Ms Dang a Permanent Partner Visa: CB 747 at [89]. The Tribunal noted:

(i) at CB 736 at [14] that the s 375A certificates, the existence of which had not been disclosed by the previously constituted Tribunal, had subsequently been revoked by the Department; and

(ii) at CB 737 at [20] that it had invited Ms Dang to comment on and respond to adverse information from the Magistrates Court Judgment and statutory declarations provided by the Sponsor and others.

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(a) at CB 739 at [27] said that it "concurred" with the assessment in the Magistrate Court Judgment that Ms Dang "was an unimpressive witness, and her overt distress was an attempt to bolster her evidence";

(b) set out and considered the factors in reg 1.15A at CB 740-746 at [34]-[83] and summarised its findings at CB 746 at [84]-[85] as follows:

Mrs Dang and Mr Nguyen did not merge their financial affairs in a way that supports them being in a spouse relationship. While I am satisfied Mr Nguyen lived with Mrs [D]ang for a little under a year in Vietnam and for a short period in Australia, I am not satisfied their living arrangements were at the time of the application consistent with them having a genuine and continuing relationship. They did not share housework. There is little independent evidence of the nature of the household and the social aspects of the relationship, with inconsistent evidence about the nature of the household. There is little independent evidence of them socialising in Vietnam, and any socialising had ceased by the time Mrs Dang arrived in Australia. I accept they represented themselves to others as a married couple. Mrs Dang and Mr Nguyen have been married to each other since 2010, however in this time Mr Nguyen stayed with Mrs Dang for approximately one year of that time. I do not accept they provided each other with companionship and emotional support or that Mrs Dang saw the relationship as long term.

Most significantly, I do not accept that Mrs Dang had a genuine commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.

(c) was not satisfied that Ms Dang was the spouse of the Sponsor for the purpose of s 5F: CB 747 at [86], and concluded that Ms Dang and the Sponsor had not been in a genuine spousal relationship and therefore did not satisfy cl 100.221 of Sch 2, and therefore the Tribunal did not go on to consider whether there had been family violence during the course of the relationship, as it did not arise: CB 747 at [87].

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(a) Ms Dang requested access to written material before the Tribunal on 16 August 2018 and the Tribunal provided only partial access to the material before it on 24 August 2018. The documents produced by the Tribunal on 24 August 2018 are reproduced in full in the Cai Affidavit at Annexure MC-1. Like the Migration Review Tribunal ("MR Tribunal") in Dhillon the Tribunal here proceeded on the erroneous basis that material containing personal information about another person was exempt from disclosure due to APP 6. And, though some of the documents redacted or withheld by the Tribunal had been the subject of the certificates and notifications under s 375A, both certificates under s 375A had been revoked prior to the Tribunal providing the Section 362A Response on 24 August 2018;

(b) some of the documents provided to Ms Dang in redacted form on 24 August 2018 have been included in the CB in unredacted form. They include adverse statements from named third parties which were disclosed to Ms Dang with addresses and other personal identifiers redacted: CB 346-361; Cai Affidavit at Annexure MC-1 at pp 599-614 (Department file CLF2014/143138 at folios 10-25). In her Invitation to Comment Response Ms Dang said that she was not familiar with the names of all but one of these witnesses and was therefore unable to specifically recall meeting them or the occasions they said they came to her home: CB 697 at [6]. In Ms Dang's submission, as a matter of "reasonable conjecture", it is possible that Ms Dang would have been able to identify and recall these witnesses, and therefore provide a meaningful response to the allegations contained in the statements if she knew the street or suburb, or had the benefit of other personal identifiers redacted by the Tribunal;

(c) a document which was not provided to Ms Dang on 24 August 2018 was the Sponsor's movement details report ("Sponsor's Movement Details Report"). Dated 2 July 2015 the Sponsor's Movement Details Report records detail of the Sponsor's arrivals in and departures from Australia, amongst other things. The Tribunal's failure to disclose the Sponsor's Movement Details Report was material because it contained adverse information that the Tribunal may have taken into account and supporting evidence to which the Tribunal may not have had regard. For instance, Ms Dang claimed she married the Sponsor on 7 October 2010 whereas the Sponsor's Movement Details Report states the Sponsor flew out of Australia that day and the Tribunal proceeded on the basis of a marriage registration date of 24 May 2011: CB 746 at [78]. The Sponsor's Movement Details Report also contradicts the Tribunal's finding at CB 746 at [84], based on the dates the Sponsor was registered as living with Ms Dang in Vietnam CB 743 at [57]-[58], that Ms Dang and the Sponsor had only lived together in Vietnam for a year; and

(d) in further submissions in relation to APP 6 Ms Dang submitted as follows:

(i) in the Australian Privacy Principles guidelines ("APP Guidelines"), the Office of the Australian Information Commissioner ("OAIC") explains "primary purpose" under APP 6 in the following terms:

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(iii) an example of how these principles apply in the context of personal information collected by the Minister can be found in 'OJ' and Department of Home Affairs (Privacy) [2018] AICmr 35 at [31] where the Information Commissioner characterised information regarding the complainant's immigration status as having been collected for the primary purpose of "administration of immigration laws" and found at [36] that the disclosure of that information to a television show was not consistent with that primary purpose and therefore for a secondary purpose;

(iv) in relation to the adverse witness statements, Ms Dang submitted at hearing that the redacted personal information had been provided to the Department for the primary purpose of assessing Ms Dang's Partner Visas applications and that this was the same purpose for which disclosure was sought from the Tribunal. Disclosure of material was sought by Ms Dang under s 362A so that she could comment on and respond to adverse information as part of the process of assessing Ms Dang's Partner Visa applications. It was also submitted, in the alternative, that even if the use of the personal information by the Tribunal was for another purpose, the relevant individuals would have implicitly consented to such use (APP6 at [6.1(a)]). The witnesses who had provided statements to the Department could only have expected that their information could be used in the appeal process. In Ms Dang's submission this characterisation of the primary purpose is consistent with the APP Guidelines set out at [12(d)(i)] above;

(v) the Minister submits that the personal information in the adverse statements was collected for the purpose of "the delegate ... assess[ing] the applicants' applications for visas" and then provided to the Tribunal for the purposes of "it conducting a review of the delegate's decision under Part 5 of the Act". However such a characterisation is too narrow and asks the Court to focus on each person undertaking each step in fulfilling the function of assessing visa applications, rather than focusing on the function itself. If the Minister's characterisation of "primary purpose" were to be adopted, it would mean that the Department is required under APP 5 to notify the relevant individual of everyone who would use the information at every step in the visa application process. Further, in relation to each person taking a step in the process, the Department would have to implement procedures to ensure the accuracy and relevance of the information under APP 10 and APP 13;

(vi) in relation to the Sponsor's Movement Details Report, this again was information collected by the Tribunal for the purpose of assessing Ms Dang's Partner Visas applications and it was for this same purpose that disclosure was sought by Ms Dang under s 362A. The information was sought so that Ms Dang could make comments or submissions for consideration by the Tribunal in assessing the Permanent Partner Visa application;

(vii) contrary to the Minister's submissions the Tribunal had "collected" the information for the purposes of APP 6 because it collected the personal information "for inclusion in a record ...", namely the Tribunal file: Privacy Act, s 6(1) definitions of "collects" and "record"), and APP Guidelines at [B.29]; and

(viii) further even if, as the Minister submits, the adverse witness statements and the Sponsor's Movement Details Report were sought for the purpose of "mak[ing] submissions to the Tribunal on the application for review", this was a secondary purpose which was "reasonably expected" and "related to the primary purpose" for which they were collected: APP 6 at [6.2](a)(ii).

(e) it is not necessary for Ms Dang to adduce evidence as to what she would have said had the Tribunal provided full disclosure of the material before it: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 ("Nathanson") at [39] per Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ. It is sufficient that Ms Dang can, as an "undemanding" matter of "reasonable conjecture", say that she was denied the possibility of a favourable outcome. It is enough that Ms Dang was denied the opportunity to make submissions based on the evidence full access to which was not given: Nathanson at [11] per Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ.

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(a) ground 1 concerns the Tribunal Decision under s 362A which refused access to certain documents, or parts of documents, because it contained personal information about another person, referring to APP 6;

(b) under s 362A(1) applicants are entitled to have access to any written material given or produced to the Tribunal for the purposes of the review, subject to s 362A(2) which provides that the section does not override any requirements of the Privacy Act and is not to be taken, for the purposes of the Privacy Act, to require or authorise the disclosure of information;

(c) Ms Dang asserts that the situation here is the same as appeared in Dhillon, further asserting that:

(i) at [11]-[12] per Allsop CJ, Murphy and Pagone JJ, the Full Court of the Federal Court held that APP 6 does not apply to a request under s 362A; and

(ii) like the MR Tribunal in Dhillon, the Tribunal here proceeded on the erroneous basis that material containing personal information about another person was exempt from disclosure due to APP 6;

(d) Ms Dang's submissions misunderstand Dhillon. In Dhillon the MR Tribunal refused access to documents which contained personal information of people other than the applicant, and not personal information about the applicant. It did so purporting to rely on Information Privacy Principle 6 ("IPP" and "IPP 6" respectively), where IPP 6 was directed only to the personal information of the person seeking access to the documents: see the text of IPP 6 at Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ, as contained in s 14 of the Privacy Act (as at 18 March 2013). Ms Dang's confusion may arise from the fact that the judgment in Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ also refers to the APPs, but the APPs did not replace the IPPs until 12 March 2014. The extract from the MR Tribunal decision in Dhillon at [10] per Allsop CJ, Murphy and Pagone JJ, also plainly refers to the IPPs as set out in s 14 of the Privacy Act. In Dhillon at [11]-[12] per Allsop CJ, Murphy and Pagone JJ the Full Court of the Federal Court found that IPP 6 did not apply because it was simply not engaged in the circumstances of that case;

(e) since the decision in Dhillon and at the time of the Tribunal Decision, the IPPs have been replaced with the APPs. The content of APP 6 was not directed to the personal information of the person seeking access to the documents, it was directed to a situation where an applicant is seeking documents that contain the personal information of others: see Sch 1 - Australian Privacy Principles to the Privacy Act (compilation No. 78 dated 1 July 2018). Dhillon is plainly distinguishable;

(f) APP 6 was a relevant consideration to the Tribunal Decision under s 362A and the Tribunal did not proceed on an erroneous basis;

(g) in the alternative, in the event that an error with respect to s 362A is demonstrated, this Court will need to consider if it was a material, and therefore a jurisdictional, error;

(h) there is no need for an applicant to establish the nature of additional evidence or submissions where they were the matter of reasonable conjecture: Nathanson at [39] per Kiefel CJ, Keane and Gleeson JJ. However, where the information is only of marginal significance, it may be that it is not reasonable to conjecture that considering the information could have realistically made a difference to the decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 ("SZMTA") at [72] per Bell, Gageler and Keane JJ;

(i) Ms Dang in this case relies on two sets of documents, the redaction of which is alleged to have caused material error;

(j) the first is the redaction of the addresses (and in one instance a mobile phone number) in statutory declarations obtained by the Sponsor, as part of his withdrawal of sponsorship: Cai Affidavit, Annexure MC-1, pp 599-614. The statutory declarations essentially contain statements about observations made by the declarants about Ms Dang and the Sponsor and their relationship in Australia that are adverse to Ms Dang;

(k) on 1 November 2018 Ms Dang was invited to respond to the content of these statutory declarations: CB 685. Ms Dang responded by way of submissions, in particular regarding the weight to be given to these statutory declarations: CB 692, and a statement from Ms Dang: CB 697 at [4]-[9]. At CB 697 at [6] Ms Dang stated that:

(i) only the name of one declarant was familiar;

(ii) she did not recall meeting any of the other people;

(iii) she believes she would recall them if they spent time with the family, and

(iv) it is possible they came to the house but only spent time with the Sponsor in the garage;

(l) Ms Dang's response to the statutory declarations extended beyond this in her own statement and the related submission, addressing the veracity of the content of the statements and the weight to be given to them;

(m) Ms Dang submits that it is a matter of "reasonable conjecture" that she would have been able to identify and recall these witnesses and therefore provide a meaningful response to the allegations if she knew their street, suburb, or other personal identifiers redacted (presumably meaning the mobile number);

(n) this submission ought not be accepted. Ms Dang gave a meaningful response to the allegations and on multiple bases. Her position was further that, with one exception, she did not believe the declarants visited or spent time with her family. It is not a matter of "reasonable conjecture" that somehow knowing the addresses (or mobile number) of the declarants could have enabled her to identify or recall the witnesses and therefore provide a meaningful response. At best, it is unsupported speculation that she could have provided a further response to the allegations. The redacted information was of marginal, if any, significance;

(o) the second document Ms Dang relies on is the redacted Sponsor's Movement Details Report: SCB at 9-11. Ms Dang contends that the Sponsor's Movement Details Report contains both adverse information that may have been taken into account by the Tribunal, and supporting evidence it may not have had regard to. With respect to Ms Dang's contention that the document may contain adverse information because it shows the Sponsor flew from Australia on 7 October 2010, whereas Ms Dang said that they were married on 7 October 2010:

(i) there is no evidence the Tribunal treated that as adverse information;

(ii) Ms Dang was already aware of this information and how it conflicted with her evidence regarding the date of her marriage because it was considered in the 2015 Tribunal Decision: CB 535 at [60]-[61]; and

(iii) there was other evidence supporting that the Sponsor left Australia and/or arrived in Vietnam on 7 October 2010. For example, both Ms Dang and the Sponsor had described elsewhere that the Sponsor arrived in or travelled to Vietnam on 7 October 2010 to prepare for marriage or for the wedding, and was further recorded on the Department files: Cai Affidavit, Annexure MC-1 at pp 111-113 and 176;

(p) with respect to the contention that the travel dates "contradicted" the Tribunal's findings as to when Ms Dang and Sponsor had been living together in Vietnam, which was based on the periods the Sponsor had formally registered his residence with Vietnamese authorities at Ms Dang's address, this contention cannot be made out where it was never contended that the Sponsor stayed with Ms Dang during the whole time he was in Vietnam or in the absence of recollection of the specific periods the Sponsor resided at Ms Dang's home in Vietnam. Again, this document is of marginal significance.

(q) in relation to APP 6 the Minister submitted as follows:

(i) at hearing Ms Dang effectively abandoned ground 1 as previously cast, and instead submitted that the Tribunal erred in applying APP 6 as it did, to not provide or redact the personal information of persons who were not the applicants, in response to the Section 362A Request;

(ii) the Tribunal's decision relating to the Section 362A Request excluded or partially excluded access to certain documents, or parts of documents: CB 585:

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(iii) Ms Dang submitted that the Tribunal erred in relying on APP 6 as it did, because it would be supplying the information to Ms Dang for the "primary purpose" for which it had been collected, which does not come within the prohibition in APP 6.1;

(iv) Ms Dang's characterisation casts the primary purpose far too broadly;

(v) the statutory declarations were material collected by the Department and contained in the Department's file: Cai Affidavit, Annexure MC-1 at pp 599-614, the purpose of the collection being for the Delegate to assess Ms Dang's Partner Visa applications. This was the "primary purpose";

(vi) this material was then produced to the Tribunal as required by s 352(4) for the purpose of the Tribunal conducting a review of the Delegate's Decision under Pt 5 (disclosure to, and use by, the Tribunal was permitted by reason of s 352(4) and APP 6.2 which provides an exception for the use and disclosure of personal information where it is required or authorised by or under an Australian law);

(vii) Ms Dang sought disclosure for a different purpose again: in order to make submissions to the Tribunal about the review of the Delegate's Decision under Pt 5, and while this may arguably have constituted a secondary purpose directly related to the primary purpose, it is not for the primary purpose itself;

(viii) the Sponsor Movement Details Report does not appear on the Department file, but rather the Tribunal file, and given its date, it is open to conclude that it was obtained by the Tribunal as part of the process leading to the making of the 2015 Tribunal Decision to hear the earlier review of this matter, and was sought pursuant to s 359(1) which permits the Tribunal in conducting the review to get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. It is plain that in the 2015 Tribunal Decision the Tribunal had regard to the Sponsor Movement Details Report, and Ms Dang must have been aware of it and at least part of its contents, as it is referred to in the 2015 Tribunal Decision: CB 530 at [11]. There is no transcript of the earlier Tribunal proceeding before the Court so it is not possible to know if it was referred to in the course of the hearing;

(ix) the Sponsor Movement Details Report appears to have been obtained by the Tribunal, but was collected by the Department for its own purposes (for example, ranging from border security to law enforcement) under s 489: Gazette notice No. GN 34, 31 August 1994, declares the Movement Data Base to be a notified database for the purposes of s 489;

(x) that it is the initial collection that informs the primary purpose is consistent with APP 5 which provides that an APP entity that collects personal information about an individual must take reasonable steps either to notify the individual of certain matters or to ensure the individual is aware of those matters, including the purpose of collection. Where that information is then required by law to be disclosed to another APP entity, there is no requirement on that entity to take similar steps; and

(xi) however, the purpose of disclosure to Ms Dang would have been at Ms Dang's request in order to make submissions to the Tribunal on the application for review. This is plainly a secondary purpose.

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11.2 If:

(a) an APP entity holds personal information about an individual; and

(b) the entity no longer needs the information by any purpose for which the information may be used or disclosed by the entity under this Schedule; and

(c) the information is not contained in a Commonwealth record; and

(d) the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.

As soon as one of the exceptions found in Privacy Principle 11 is engaged, as it was in this case, the basis for the Tribunal's refusal to provide particular nominated documents in full disappears. The Tribunal also erroneously considered that folio 244 was covered by the s 375A certificate. It was not.

Thus, there were two classes of document, namely, one thought to have been excluded by a s 375A certificate and the others thought to have been excluded by Privacy Principle 11, which were not disclosed to Mr Sandhu in response to his request, as s 362A required. It has not been necessary, as it would not have been necessary for the Federal Circuit Court, to have regard to those documents in order to reach that conclusion. The conclusion flows necessarily from a true construction of s 362A and Privacy Principle 11, as set out in the passage quoted from Dhillon. To this extent, there was no utility in production pursuant to the notice to produce. Seeing the documents was not at all necessary to reach the conclusion as to a failure on the part of the Tribunal to comply with the mandatory requirements of s 362A.

It is true that in Dhillon, as result of the documents in that case having been produced, the Full Court had occasion to consider the materiality of redacted material. That though seems to have been because it was necessary in that case to decide whether the Court ought to permit to be raised on appeal the question as to compliance or otherwise by the Tribunal with s 362A. That particular issue was always one before the Federal Circuit Court and a ground that Mr Sandhu was entitled further to pursue, without any grant of leave by his notice of appeal, to this Court.

It is not necessary to determine the appeal to do other than make the observations just made in relation to the notice produce before the Federal Circuit Court. Another reason for that is that the case is not one for sending back to the Federal Circuit Court for hearing afresh. If the appeal succeeded, it would go back to the Tribunal for a hearing on the merits.

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The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.

Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture (140) and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

In the passage quoted, their Honours make particular reference to s 360. Section 360 of the Act is, as their Honours observe, central to Division 5 and the conduct of the review for which the division provides. Section 362A complements that and gives meaning to that centrality by equipping an applicant with material which will necessarily be before the Tribunal when the Tribunal comes to conduct the hearing for which s 360 provides. It is one means chosen by Parliament to afford an applicant procedural fairness.

Another is the requirement found in s 359A for the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. Section 359A performs, in respect of the Migration Review Tribunal, a like role to that which s 424A performs in relation to the Refugee Review Tribunal. As was said by Gleeson CJ and Gummow, Callinan, Heydon and Crennan in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [13] in respect of s 424A:

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There is no doubt that the addresses and mobile telephone number of a declarant of the relevant statutory declarations or statements is information about identified individuals (the individuals being identified by name in the unredacted portions of the statutory declarations) and is therefore "personal information" for the purposes of APP 6.1.
Critical to the determination of this issue is the nature of the "particular purpose" for which the personal information was collected by the Department, and ultimately also by the Tribunal.
In this case the personal information was collected by the Department in late 2013 as a result of it being provided to it by the Sponsor approximately ten months after he had withdrawn his sponsorship of Ms Dang in December 2012. The particular purpose (and therefore the primary purpose: APP 6.1) of the Department in collecting the personal information was to determine whether or not Ms Dang was the spouse of the Sponsor, or, put slightly differently, to determine if Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
The task upon which the Tribunal was engaged was a review of the Delegate's Decision, but the particular purpose of that task, and the particular purpose of the task of the Delegate also, was that identified by the Tribunal at CB 735 at [7], namely to determine whether or not Ms Dang was the spouse of the Sponsor, which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa (see the Delegate's Decision at CB 322 where the Delegate refers to having "assessed the application by" Ms Dang and its "find[ing] that the criteria for the grant of a ... [Permanent Partner Visa] are not met by the applicant").
The Department, in providing the personal information to the Tribunal, was providing the personal information for the same particular purpose for which it had collected the personal information, and the Tribunal in collecting the personal information was collecting it for the same particular purpose, namely, to determine whether or not Ms Dang was the spouse of the Sponsor which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
In the above circumstances the failure to provide the redacted addresses of the declarants (and in one instance a redacted mobile phone number) to Ms Dang was an error because that information would have been provided to her for the particular purpose of assisting the Tribunal to determine if Ms Dang was the spouse of the Sponsor which was to be determined by whether Ms Dang met the relevant criteria for grant of the Permanent Partner Visa.
In the circumstances the Tribunal committed error. The question becomes then whether this error was material.
The redaction of the details of the Sponsor's Movement Details Report could, in a similar manner to that outlined above, have affected Ms Dang's capacity to respond to relevant issues relating to when the Sponsor was in Vietnam and how much time he spent there with Ms Dang, and when. The movement details were not however collected for the purpose (primary or otherwise) of determining whether Ms Dang was the spouse of the Sponsor (or vice versa). There was therefore no error in not providing the Sponsor's Movement Details Report to Ms Dang.
The concept of materiality has developed over time, with different modes of emphasis and expression adopted by individual Justices of the High Court. More recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321; (2024) 98 ALJR 610; (2024) 418 ALR 152 ("LPDT") the High Court set out the following relevant principles:

[88]

(a) clause 100.221(4)(b) of Sch 2 required the Tribunal to ask itself whether at the time of decision Ms dang "would" meet the requirement that she continue to be the Sponsor's spouse "except that the relationship ... has ceased ... and ... the applicant ... has suffered family violence ...". It is accepted that, in order to satisfy this paragraph, Ms Dang was required to establish that she had at some point been in a genuine spousal relationship with the Sponsor: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51; (2022) 296 FCR 307 ("Gupta") at [44] per Farrell, Snaden and Abraham JJ;

(b) in determining whether a genuine relationship existed at any particular point, the Tribunal was required to make findings as to each of the subparagraphs of reg 1.15A(3): He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41; (2017) 161 ALD 17 ("He") at [76] per Siopis, Kerr and Rangiah JJ. As the Tribunal itself acknowledged at CB 740 at [34], each of the specific matters in reg 1.15A(3) are questions that need to be answered. At any point in time, each of the matters in reg 1.15A(3) had to be assessed collectively and no individual matter could be independently decisive;

(c) what the Tribunal was not permitted to do was find that Ms Dang and the Sponsor had not been in a genuine relationship based on different circumstances at different points in time. This is especially so when Ms Dang had claimed to have suffered family violence and it is possible the relationship was no longer genuine and continuing because of the violence. The underlying legislative policy is that Partner Visa applicants should not have to remain in violent domestic relationships in order to remain in Australia: Explanatory Statement to the Migration Amendment Regulations 2009 (No.12) Select Legislative Instrument 2009 No. 273, Attachment B; Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170; (2010) 114 ALD 211 at [34] per Moore J, and yet that is precisely what the Tribunal in the present case did. Ms Dang said that as soon as she arrived in Australia the relationship changed and she was subjected to violence in the second week: CB 266 at [27]. The Tribunal however asked Ms Dang at the hearing and ultimately made findings based on the circumstances of the relationship prior to and after her arrival in Australia. The Tribunal made no finding as to the date the relationship ended and no finding as to whether acts of family violence had occurred.

[109]

(ii) what the living arrangements of the persons are; and

(iii) whether and to what extent there is sharing of the responsibility for housework.

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a "married relationship". In some cases, the Tribunal's answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf [Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504; (2014) 63 AAR 164l (2014) 140 ALD 531] at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.

So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely 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. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to "consider" the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.

The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.

[119]

(a) ground 3 concerns an allegation of a reasonable apprehension of bias by the decision-maker. Uncontroversially, the relevant test is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, confirmed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352; (2006) 231 ALR 663; (2006) 70 IPR 468 and Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; (2021) 95 ALJR 824; (2021) 393 ALR 389; (2021) 64 Fam LR 94 ("Charisteas") at [11] per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ;

(b) Ms Dang's primary allegation in support is that, similar to the decision-maker in Asif, the Tribunal ignored corroborative probative material in support of a genuine spousal relationship and was not prepared to look beyond Ms Dang's testimony;

(c) in Asif the Full Court of the Federal Court held that the Tribunal approached the case on the basis that, only if it were to accept the evidence of the applicant himself that the marriage relationship was a real and genuine one at any relevant date, would it make a finding in the respondent's favour and was not prepared to consider the probative value of any other evidence put before it: Asif at [30] per Drummond, North and Madgwick JJ. In effect, it engaged in a steadfast refusal to evaluate the probative force of any of the evidence from sources other than the respondent himself that was relevant to the issue on which it based its decision and "once it became convinced that the respondent was a wholly untruthful witness the case was over": Asif at [32] per Drummond, North and Madgwick JJ;

(d) this decision is plainly distinguishable from Asif:

(i) first, in contrast to Asif, the Tribunal here engaged in a detailed analysis of the issues raised by reg 1.15A(3);

(ii) second, in so doing, the Tribunal plainly did not reduce its consideration of the issue of whether there was a genuine spousal relationship to whether it considered Ms Dang to be a credible witness. The Tribunal referred to a range of material when determining the issue. For example, when considering the financial aspects of the relationship alone, the Tribunal:

(A) referred to the difficulty in determining what occurred financially in a situation where Ms Dang gave inconsistent responses to the same question: CB 742 at [45];

(B) appeared to be willing to accept Ms Dang's evidence regarding some aspects of what occurred financially: CB 742 at [46]-[50];

(C) addressed documentary evidence produced by Ms Dang in the form of a joint bank account confirmation: CB 742 at [52]; and

(D) had before it, and considered, evidence from other sources that were adverse to a finding of the existence of a genuine spousal relationship: CB 744 at [64]-[66];

(iii) third, the Tribunal did not ignore the evidence of Ms Dang's children and Ms Dang's other witnesses nor demonstrate an unwillingness to look beyond Ms Dang's testimony. Rather it found, the evidence was not independent or impartial and that affected its consideration of the weight of that evidence: CB 739 at [28]-[29] and 745 at [74]- [75]. The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J. Further, not all evidence needs to be referred to by the Tribunal in its reasons and the fact that some evidence may not have been expressly noted, does not mean it was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 22; at per French CJ and Kiefel J; ; at per Katzmann, Griffiths and Wigney JJ;

(e) Ms Dang's submissions also raise various other matters which it says supports the inference of a reasonable apprehension of bias, and addressing each of those matters in turn:

(i) the matters raised at CB 739 at [23]-[26] were relevant considerations to the credit of Ms Dang and the witnesses she prompted;

(ii) the Tribunal's assessment of Ms Dang as a witness was not merely reduced to an acceptance of the view of the Magistrate Court, but rather was "in light of having spent considerable time hearing [the] matter" and supported by the Tribunal's observations at CB 739 at [23]-[28] and its observations regarding the inconsistency of her evidence on various issues (for example, at CB 741-742 at [40]-[45], 742 at [46]-[48] and 743-744 at [60]-[61]), lack of specificity (for example at CB 746 at [81]) and the inherent difficulty in accepting some aspects of her evidence (for example at CB 746 at [82]);

(iii) Ms Dang's speculation as to why the Tribunal requested a copy of the Magistrate's Court Judgment when a copy was presumably on the Authority file is purely speculative and the reason for the request is unknown and may have been prompted by a number of other reasons; and

(iv) the fact a submission was not expressly referred to does not mean it was overlooked and the Tribunal was not required to refer to every contention made by Ms Dang in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ, and

nor do these matters collectively suffice to give rise to a reasonable apprehension of bias.

[125]

(a) Ms Dang's oral evidence of a lack of evidence of "major purchases together ": CB 741 at [38];

(b) Ms Dang's evidence in her statutory declaration as to money sent, or given, to the Sponsor: CB 741 at [39];

(c) inconsistencies between the written evidence in the statutory declaration and Ms Dang's oral evidence to the Tribunal and her evidence recorded in the Magistrates Court Judgment as to money transfers and the availability of a rental property on arrival in Australia: CB 741-742 at [40]-[46];

(d) a lack of documentary evidence as to her alleged purchase of a ticket for the Sponsor to travel to Vietnam: CB 742 at [49];

(e) a lack of transactions in the joint bank account opened in the name of Ms Dang and the Sponsor: CB 742 at [52];

(f) there being no documentary evidence as to the payment of rent or household expenses in Australia: CB 743 at [54];

(g) the oral evidence of Ms Dang and her children as to the Sponsor's interaction with Ms Dang's adult children: CB 743 at [56];

(h) the Vietnamese household registration book which the Tribunal accepted as showing the Sponsor was registered as living with Ms Dang for certain periods in Vietnam: CB 743 at [57]-[58];

(i) in relation to the nature of the household in Vietnam and in Australia, the oral evidence of Ms Dang's children and Ms Dang (and differences in Ms Dang's oral evidence at two Tribunal hearings), a statutory declaration from Ms Dang's niece, and various witness statements provided by the Sponsor: CB 743-744 at [59]-[65];

(j) in relation to the social aspects of the relationship, to Ms Dang's statutory declaration and to six statements from Ms Dang's family and friends, a statement from a friend of the Sponsor, and oral evidence from a friend of the Sponsor: CB 745 at [70]-[74]; and

(k) in relation to the nature of the commitment between Ms Dang and the Sponsor, to a statutory declaration by the Sponsor as to when he first met Ms Dang in person and that he stayed in Vietnam before returning to Australia, and to Ms Dang's oral evidence as to the Sponsor staying with her in Vietnam, the nature of their relationship in Vietnam, and the Sponsor's consumption of alcohol: CB 745-746 at [77]-[82].

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Judgment (130 paragraphs)

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Legislation Cited (3)

Cases Cited (42)