Pharikan v Minister for Home Affairs

Background to appeal 2 The appellant is a national of Thailand, born in 1961. He came to Australia on a visa granted on the basis of a sponsorship by the appellant's former wife. 3 The relationship between the appellant and his former wife ended and, on 10 March 2011, the appellant applied for the visa on the basis of his relationship with a different sponsor. 4 On 18 December 2014, the delegate refused the appellant's visa application because she was not satisfied that the appellant was the de facto spouse of the sponsor. 5 The Tribunal conducted a hearing on 14 January 2016, at which the appellant (represented by his lawyer, Mr Ray Turner) gave evidence and made arguments. The Tribunal also received oral evidence from the sponsor and the appellant's daughter. The hearing was conducted with the assistance of an interpreter in the Thai and English languages. 6 At the hearing, the Tribunal questioned the appellant about when he had separated from his former wife. The appellant gave evidence to the effect that the separation was effected by a telephone call made by his former wife to the Department. That is, his evidence was that he did not consider them to have separated until he was informed by the Department of his former wife's call. Although the appellant acknowledged that he had moved out of his former wife's house to live with a friend and his daughter, the appellant claimed that he had been asked to do so to enable the former wife's relatives to stay with her and that he expected that he would return to live with the former wife after the relatives had left. 7 The Tribunal questioned the veracity of this evidence, on the basis of the appellant's statutory declaration which had accompanied his visa application. 8 The Tribunal then questioned the appellant about why he had not informed the Department about matters set out in the statutory declaration, to the effect that the relationship with the former wife had broken down. The relevant passage of the transcript is as follows: [Tribunal]: According to your written statement your relationship wasn't good for a long time before you came - after you came to Australia. You hadn't shared the bedroom. She hasn't give you access to the house, she didn't (indecipherable), she kicked you out of the house and threw our [sic] clothes. Who didn't you inform the Immigration Department about any of this? [Appellant]: I told that to a lawyer once um [sic] I said (indecipherable) the lawyer requested $1,700. I paid him half and then he just closed the office and ran away. Mr (indecipherable) and I tried to contact him but I couldn't and at the time I didn't even know what visa I was - [Tribunal]: Well, I suppose my concern is how truthful is your evidence. You have now given me a very different picture of your relationship with your ex-wife than what is written in your (indecipherable) declaration and it seems to me that when that relationship wasn't going well, when that relationship broke down you didn't inform the Immigration Department which you could have done yourself without paying $1,700 to someone. But you waited for the Immigration Department to call you and tell you that your ex-wife had (indecipherable) sponsorship. I don't really understand how you could not have known what visa you are holding given that you have applied for a (indecipherable) visa then you must … documents to show you are in a relationship with your ex-wife before you were granted the (indecipherable) visa. [Appellant]: After I contacted the lawyer I did not know visa [sic] I was on because his office was closed and I got my other daughter to contact Immigration. [Tribunal]: So you told the Immigration officer of your relationship with you ex-wife broke down? [Appellant]: The Immigration officer gave me a form to write a letter and so I wrote the letter. I got this girl to help me write it. [Tribunal]: Before or after the Immigration Department contacted you? [Appellant]: After. [Tribunal]: So my question was why did you not inform the Immigration Department that your relationship broke down if that was the basis on which you were being in Australia, why did no not do the right thing and tell them what was going on in your relationship? [Appellant]: I didn't know how to inform the Immigration Department. [Tribunal]: So did you think you were able to stay in Australia if you came here on the basis of the relationship with your ex-wife and that relationship wasn't going well, why did it not occur to you that you had to inform the Immigration Department? [Appellant]: I just didn't (indecipherable). [Tribunal]: Did you have contact with your ex-girlfriend while you were in the relationship with your ex-wife? [Appellant]: Sometimes. [Tribunal]: Right so I understand your relationship with your ex-wife broke down around May 2008, early 2008 you say? [Appellant]: Yes.

Tribunal decision 9 The issue for decision by the Tribunal was whether, at the time of its decision, the appellant was the spouse or de facto partner of the sponsoring partner within the meaning of cl 801.221(2)(c) of Sch 2 to the Migration Regulations 1994 (Cth) ("Regulations"). The Tribunal was satisfied that the sponsor was "the sponsoring partner" for the purpose of cl 801.221(2)(c). 10 The Tribunal set out the relevant statutory provisions, as follows: "De facto partner" is defined in s 5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2). In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in r.1.09A(3) [of the Regulations]. 11 The Tribunal acknowledged that the relationship between the appellant and that sponsor had been in existence for a number of years. However, the Tribunal was not satisfied that the requirements of s 5CB(2) of the Migration Act 1958 (Cth) ("Act") were met at the time of its decision. It followed that the appellant did not meet the requirements of cl 801.221(2)(c) and did not meet the criteria for the grant of the visa. 12 The Tribunal's decision record sets out a detailed assessment of the evidence, covering the following subjects: (1) the appellant's previous relationship (paras 10-12); (2) the appellant's relationship with the sponsor (para 13); (3) the children of the appellant and the sponsor, and the relationship of each of them with the other's children (para 14); (4) the financial arrangements of the appellant and the sponsor (paras 15-18); (5) the social aspects of the relationship between the appellant and the sponsor (para 19); and (6) the appellant and the sponsor's living arrangements (paras 20-21). 13 In summary, the Tribunal found that: (1) The appellant had not been truthful in describing his previous relationship to the Tribunal and had deliberately withheld information from the then Department of Immigration and Border Protection ("Department") as to the breakdown of that relationship (paras 10 and 11 of decision record). In particular, the Tribunal found that the appellant gave inconsistent information in his visa application and his evidence to the Tribunal, concerning the relationship between his former wife and its breakdown. (2) The appellant's evidence about his present relationship was very vague and uninformative (para 13 of decision record). (3) The appellant and the sponsor showed little interest in each other's children and had little knowledge about each other's relationships with their children. The Tribunal expressed the view that, given the apparent significance of the relationships to the parents, the lack of interest suggested a lack of commitment to the relationship (para 14 of decision record). (4) The documentary evidence relating to finances was not probative (para 15 of decision record). (5) It was "odd" that the appellant did not know that the sponsor had increased her mortgage repayments from $1,200 to $1,600 (para 16 of decision record). (6) The Tribunal was not satisfied that a joint account was being used to pool the couple's financial resources, and that the parties had adequate knowledge of each other's financial circumstances (para 17 of decision record). (7) While it accepted that there was some degree of financial interdependence, and that the appellant helps with the sponsor's mortgage repayments, the Tribunal was not satisfied that couple had pooled their resources or that they had joint ownership of assets or joint liabilities, or that they owed legal obligations towards each other. Given their lack of knowledge about each other's financial arrangements, there was only limited sharing of day to day household expenses (para 18 of decision record). (8) The relationship of the appellant and the sponsor was known to others and they presented themselves to others as being in a married relationship, however, such recognition was "somewhat limited" (para 19 of decision record). (9) There were several inconsistencies in the evidence of the appellant and the sponsor about their living arrangements, and both were "very vague in their responses" to the Tribunal's questions (para 20 of decision record). (10) Although the appellant and sponsor claimed to have lived together for several years, and the sponsor's two children resided with them, they should have had better knowledge of matters concerning their respective living arrangements (para 21 of decision record). (11) Although the Tribunal accepted that the appellant and the sponsor resided together, it was not satisfied that they had established a joint household and that they viewed the relationship as a long term one. The Tribunal was not satisfied that they had sufficient interest in each other and that they provided emotional support and companionship to one another; or that there was a mutual commitment to the relationship (para 21 of decision record). 14 As earlier noted, at para 22 of its decision record, the Tribunal accepted that the relationship between the appellant and the sponsor had been in existence for a number of years and that there were several documents concerning the relationship. However, having regard to the Tribunal's assessment of the evidence, the Tribunal was not satisfied that the appellant and the sponsor had formed a committed relationship; or that the appellant and the sponsor had a mutual commitment to a shared life to the exclusion of all others; or that the relationship between them was genuine or continuing.

FCCA proceeding 15 The FCCA proceeding was commenced by an application pursuant to s 476 of the Act, which was amended at the hearing of the application on 12 April 2018. The appellant was represented at the hearing by the same lawyer who had appeared for the appellant before the Tribunal. 16 As the appellant's proposed amended notice of appeal does not seek to engage with the reasons of the FCCA judge, it is unnecessary to address them in any detail. In brief, the appellant's case in the FCCA was that the Tribunal's decision was affected by apprehended bias; that the Tribunal had applied the wrong test by addressing principally whether the appellant and sponsor were in a genuine and continuing relationship at the time of the visa application; and that the Tribunal failed to consider all of the relevant consideration set out in reg 1.15A of the Regulations.

Proposed grounds of appeal 17 As originally filed, the notice of appeal set out two grounds of appeal. The appellant now seeks to rely on an amended notice of appeal which raises two different grounds of appeal, considered below.

Legal framework for considering application for leave to rely on new grounds 18 In SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145, a Full Court comprising Besanko and Burley JJ and myself considered the relevant principles and said (at [28]-[29]): [28] The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows: [46] ... Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. [47] In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. The statement of principle in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] is to similar effect. [29] In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented and put on no submissions at all. The Full Court said (at [66] to [68]): [66] In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time. [67] However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance. [68] All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance. 19 Counsel for the appellant, Ms Baw, contended that the Court should grant leave to rely on the amended notice of appeal for the following reasons: (1) the proposed grounds of appeal have clear merit and there is no real prejudice to the Minister in permitting them to be agitated; (2) although legally represented before the FCCA, the appellant was not represented by counsel, and (3) it is expedient in the interests of justice to permit the appellant to rely on the proposed grounds.

First proposed ground 20 The first proposed ground is that the Tribunal "fell into jurisdictional error by irrational or illogical reasoning leading to a finding by the Tribunal that the [appellant] was not a credible or honest witness". The proposed amended notice of appeal sets out the following five particulars of this proposed ground (citations omitted): 1. The Tribunal expected the appellant to be aware of his obligation to inform the Department if his circumstances changed, pursuant to s 104(1) of the Migration Act 1958 (Cth). 2. The appellant gave evidence to the Tribunal that he had told his lawyer, at the time, of the breakdown of his prior marriage. However, his lawyer requested $1,700 of which he paid half and then the lawyer closed down his office and ran away. At the time, the appellant did not even know what visa he was on. The Tribunal merely found the evidence "unconvincing", without any explanation for disbelieving the appellant. 3. The Tribunal found that the appellant "could have easily contacted Immigration himself". However, the Tribunal failed to take into account that the appellant spoke limited English; he regularly had to seek the assistance of his daughters to communicate with the Department; and he said that he did not know how to inform the Department. 4. In the circumstances, the Tribunal's reasoning was unreasonable and failed to take into account all of the evidence, or rejected it without any rational basis. 5. The Tribunal reached adverse credibility findings that the appellant "deliberately withheld that information from the Department" and was "untruthful when seeking a visa" without any logical or probative basis. 21 The challenged findings, all of which appear in para 11 of the Tribunal's decision record, were: (1) That the Tribunal found "unconvincing" the appellant's evidence that he paid a migration agent who disappeared and that he did not even know what visa he held. (2) That "the applicant could have easily contacted Immigration himself". (3) That the appellant "deliberately withheld that information from the Department" and that his "willingness to do so causes concerns about his overall credibility and his willingness to be untruthful when seeking a visa". 22 These findings were relevant only to the Tribunal's assessment of the appellant's credibility; they were not relevant to the critical issue of whether the appellant was the de facto spouse of the sponsor. The findings were made in the context of the Tribunal's evaluation of the evidence concerning the appellant's previous relationship, as follows: 9. The Tribunal has had regard to the written evidence submitted with the primary application, additional material submitted to the Tribunal and the oral evidence of the parties. The Tribunal has found the parties' oral evidence problematic, for the reasons set out below. 10. The Tribunal questioned the [appellant] about his previous relationship. In oral evidence to the Tribunal the [appellant] stated that he did not separate with his former wife until she asked him to move out for a time to leave room for her relatives. He claims that he only learned about the separation after the ex-wife informed the Department of the separation and prior to that he and the ex-wife had a good relationship, even though they had arguments. The [appellant] stated that when the ex-wife's relative came, she asked him to move out for a short time. The [appellant] specifically confirmed that he and the ex-wife shared the bedroom until he moved out. This information is entirely inconsistent with the information the [appellant] gave in his statutory declaration which was provided with the application. In that declaration the [appellant] stated that since he entered Australia, he and his ex-wife did not have a good relationship, never shared the bedroom and that the ex-wife threw out his clothes and asked him to move out of the house because she suspected he had another girlfriend. The Tribunal has formed the view that the [appellant] has not been truthful in his evidence when describing his previous relationship to the Tribunal. 11. The [appellant's] written evidence suggests that his relationship with the ex-wife was not going well, that they did not share a bedroom, he had no access to the house and that at some point she asked him to leave the family home. Yet, the [appellant] claims the only time he learned of the withdrawal of the sponsorship was when he received the call from Immigration and only after that phone call he wrote a letter to Immigration, that is, the [appellant] failed to inform Immigration of the breakdown of the relationship even though that was the very basis on which he was seeking the visa. The [appellant] informed the Tribunal that he paid a migration agent who disappeared and he did not even know what visa he held. The Tribunal finds that evidence unconvincing. The [appellant] could have easily contacted Immigration himself, without the help of any agent, to inform of the breakdown of the relationship. It was his obligation to do so. The [appellant] must have realised, having gone through the visa application process, that his presence in Australia was at least related to having a relationship with the ex-wife who was his sponsor. In the Tribunal's view, the [appellant] would have known, or should have known, that he was obliged to inform the Department of his change in circumstances. The Tribunal has formed the view that the [appellant] deliberately withheld that information from the Department and his willingness to do so causes concerns about his overall credibility and his willingness to be untruthful when seeking a visa. 12. The [appellant's] evidence to the tribunal is that his relationship with the former wife broke down in early 2008 and in May 2008 he received the phone call from Immigration. The [appellant] claims that by August 2008 he was already in a committed relationship with the sponsor. The Tribunal is concerned about the haste with which such relationship developed following the breakdown of the previous one. It appears that, having realised that he was unable to get the Partner visa on the basis of the first relationship, the [appellant] immediately sought to establish another relationship. The Tribunal is concerned that his motivations in doing so was to obtain the Australia visa. 23 As appears from the passage set out above, the Tribunal identified three bases on which it found that the appellant's evidence concerning the previous relationship lacked credibility. Those bases were: (1) Inconsistency between the appellant's evidence to the Tribunal and in a statutory declaration accompanying his visa application. The Tribunal's findings about this are not challenged. (2) The appellant's failure to inform the Department of the breakdown in the relationship. (3) The apparent "haste" with which the appellant formed the relationship with the sponsor after the breakdown of the previous relationship. The Tribunal's findings about this are also not challenged.

Legal principles 24 In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], the Full Court summarised the relevant principles concerning legal unreasonableness as follows: (1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at 83). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J). (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at 83). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that: 135. ... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (Emphasis added) (3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] … "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54]." Equally jurisdictional error may be established by "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37]. (4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that: 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny... (citations omitted) (5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61]. (Emphasis in original) 25 The appellant noted the following observations of Tamberlin and RD Nicholson JJ in W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [67]: Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant. 26 The appellant referred to the requirement of procedural fairness that the Tribunal give "proper, genuine and real consideration" to an applicant's claims of persecution (see, for example, SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [59]-[60]), and the need for a Tribunal to disclose a reasoning process that leads to its ultimate conclusion: see, for example Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 at [17]-[21]. 27 Next, the appellant referred to the following statement of the role of the Tribunal in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [21]-[24]: [21] ... To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: [Australian Broadcasting Corporation v Bond [1990] HCA 33; (1990) 170 CLR 321] per Deane J at 366-367). [22] ... The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72)). A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result ... … [24] The importance of the Tribunal's function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal … 28 Next, the appellant referred to the decision in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, in which, at [16], Gordon J held that the Tribunal did not act "judicially in the sense described in WAIJ as "[i]ts decision is based on irrational findings and is not supported by reason". Her Honour cited relevant parts of the Tribunal decision in which it repeatedly concluded that "[t]he Tribunal is not convinced", and stated: [20] Rather than focusing on the use of particular words (i.e. 'convinced' or 'persuaded' as opposed to 'satisfied'), a better way of approaching the question is to ask whether the Tribunal's reasons for decision otherwise fully and carefully expressed reasons which betray no misunderstanding by the Tribunal of its primary jurisdictional task under s 36(2) of the Act: WADE of 2001 [2002] FCAFC 214 at [18]. Bearing in mind the injunction that a Tribunal's reasons for decision "are not to be construed minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (internal quotation marks and citation omitted), in my view the decision of the Tribunal nevertheless discloses no "jurisdictional" foundation. … [25] Notwithstanding the breadth of the Tribunal's discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations "judicially" imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal's adverse credibility finding to survive appellate scrutiny, there must be a "legitimate articulable basis" for the Tribunal's finding and the Tribunal "must offer a specific, cogent reason for any stated disbelief': Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). 29 The disputed findings also raise a question about whether the appellant could reasonably have been expected to realise that the Tribunal might make those findings. In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 ("Alphaone") at 591‑592 , the Full Court said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 30 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, after citing this passage at [29], at [32] the High Court affirmed the further statement from 590-591 in Alphaone that: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. 31 In SZBEL, the High Court found that procedural fairness had been denied where the appellant would not have understood, either from the decision of the delegate that was under review, or from anything the Tribunal said or did, that there were live issues apart from the central and determinative question of the nature and extent of his Christian commitment. However, the Court made the following general point (at [47]): 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, as here, 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. 32 In determining whether procedural fairness has been denied, it may be relevant to note the distinction between an adverse assessment of a witness's credit and a positive finding of fact on an issue about which the witness's evidence is tested. Thus, for example, as Barwick CJ observed in Gauci v Federal Commissioner of Taxation [1975] HCA 54; (1975) 135 CLR 81 at 87, "[d]isbelief does not amount to positive evidence of the opposite of what is disbelieved".

Particulars (1) to (4) 33 I am not satisfied that the Tribunal's decision record reveals jurisdictional error of the kind identified in the first four of the five particulars to the first proposed ground of appeal. 34 First, particular (1) implicitly acknowledges that the appellant had an obligation under s 104(1) of the Act "if his circumstances change[d]". There is nothing illogical or irrational in an expectation that the appellant would be aware of his legal obligations. It is a separate question whether the appellant was, in fact, so aware. 35 Second, the Tribunal's finding that the appellant's evidence was "unconvincing" was nothing more than an observation or side comment. Accepting, as was said in the passage from W148/00A set out above, that it is not sufficient to make passing comments where the issue is important or significant, the appellant's evidence on this point was not such an issue. That is demonstrated by the fact that the Tribunal did not make findings as to the truthfulness of the evidence. 36 Third, it was open to the Tribunal to form the view that the evidence was unconvincing. The appellant's evidence was that he had paid a lawyer who had disappeared, rather than a migration agent. On its face, it is surprising that a lawyer or a migration agent might have disappeared given that both occupations are regulated and it is also surprising that the appellant claimed not to know what visa he held given the significance of the visa to his legal status in Australia. At the hearing of the appeal, it was submitted that the Tribunal had an obligation to quiz the appellant about his evidence, apparently in order to determine whether he might have been able to substantiate it with more detail. The Tribunal did not have such an obligation as a matter of procedural fairness. It was a matter for the appellant to put forward such evidence as he considered would support his application: see SZBEL at [40] and [48]; Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57]-[58] per Gummow and Heydon JJ (Gleeson CJ agreeing at [1]). 37 Fourth, the Tribunal's decision record does not reveal the evidentiary basis for its finding that the appellant "could have easily contacted Immigration himself" notwithstanding the appellant's evidence that he did not know how to inform the Department of the breakdown of his previous relationship. However, the appellant did give evidence that, after the Department had initiated contact with him, his daughter assisted him to contact the Department. That evidence provides a basis (albeit thin) for the Tribunal's finding. In my view, the Tribunal's reasons should not be construed as meaning that the appellant could have contacted the Department without the assistance of his daughter but, rather, without the assistance of a migration agent. The other matters identified by the appellant, being his lack of English speaking skills and his statement that he did not know how to inform the Department, did not require the Tribunal to refrain from making the finding.

Particular (5) 38 As expressed, the appellant's complaint was that the Tribunal made two findings adverse to his credit without any logical or probative basis. The two findings were said to be: (1) the appellant deliberately withheld from the Department the information that his relationship with his former sponsor had ended; and (2) the appellant was untruthful when seeking a visa. 39 As to (2), such a finding was not made explicitly. I do not accept that the Tribunal found the appellant to be untruthful when seeking a visa. The relevant finding was that the Tribunal had cause for concern about the appellant's willingness to be untruthful when seeking a visa. Accordingly, this aspect of the proposed ground of appeal does not reveal jurisdictional error. 40 As to (1), the appellant acknowledged his obligation under s 104 of the Act. That acknowledgement did not extend to the precise scope of the obligation and it is not self-evident that the appellant was obliged to inform the Department "of the breakdown of the relationship", as the Tribunal found. The obligation under s 104(1) was as follows: If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. 41 The Minister's submissions noted that the relevant application form was not in evidence, but argued that "it would be reasonably expected to have contained information regarding the appellant's residence as well as his relationship with his previous sponsor (which formed the basis of the application). Changes to this information was required to be notified to the Department under s 104." 42 On the Minister's argument, whether the appellant was obliged to inform the Department "of the breakdown of the relationship" would seem to depend upon whether an answer on an application form was incorrect by reason of the breakdown of the relationship between the appellant and his former partner. The Tribunal's reasons did not address whether circumstances had changed so that a question on a relevant application form was incorrect with the consequence that the appellant had an obligation to inform the Department of particular "new circumstances" under s 104(1). Rather, the Tribunal proceeded on an assumption, not demonstrated, that the Tribunal had an obligation "to inform the Department of the change in his circumstances". 43 The Tribunal's finding that the appellant deliberately withheld information from the Department is a serious one and could not have been made only upon the basis of findings that the appellant could easily have contacted the Department and that he "would have known, or should have known" of the amorphously expressed obligation to inform the Department if his circumstances changed. Rather, the finding entailed a conscious choice on the part of the appellant, at or from a particular point in time, not to provide the Department with certain information. 44 At paras 10 and 11 of its decision record, the Tribunal recorded the appellant's evidence that the appellant only learned about the separation after his ex-wife had informed the Department. At para 12 of the decision record, the Tribunal recorded the appellant's evidence as that the relationship broke down in early 2008 and that in May 2008 he received the phone call from the Department. The Tribunal's reasons do not reveal an attempt to make findings concerning any perceived inconsistency in that evidence. In any event, the latter statement appears to be based on the appellant's answer to the following question: Right so I understand your relationship with your ex-wife broke down around May 2008, early 2008 you say? Yes. 45 Particularly in the light of the appellant's earlier evidence, this evidence did not amount to an acknowledgement by the appellant that any time elapsed between the relationship breakdown and the call from the Department. These elements of the Tribunal's decision record reveal that the finding of deliberate withholding of information was not underpinned by a clear identification of when the appellant made a choice, said to indicate a willingness to be untruthful, to withhold information. 46 The Tribunal did not make findings as to: (1) when the breakdown of the relationship occurred; (2) if and when the appellant turned his mind to the question of whether he should inform the Department of that fact; or (3) if and when the appellant made a decision to withhold that information from the Department. 47 In the absence of direct evidence that the information was deliberately withheld or facts from which an inference to that effect could be drawn, the Tribunal did not have a probative basis (or, as the appellant contended, a logical or rational basis) for its finding that the appellant deliberately withheld information from the Department. 48 In this respect, the Tribunal made an error in its findings on the appellant's credit. Applying the analysis in DAO16 above, the error is one which may amount to jurisdictional error. 49 There is a further question as to whether the Tribunal denied the appellant procedural fairness in connection with the finding. As appears from the transcript set out above, the Tribunal asked the appellant to explain why he had not informed the Department of particular facts, for example, that the ex-wife had kicked the appellant out of the house and threw out his clothes. The Minister did not suggest that there was any reason why the appellant should have informed the Department of those particular facts. It was unfair of the Tribunal to ask the appellant to explain himself in that way, because it suggested impropriety that had not been demonstrated or conceded. The Tribunal also asserted to the appellant that he "waited" for the Department to call him, without identifying any period during which the appellant was alleged to have waited. That was an unfair and confusing question because it did not identify when the appellant had waited. The appellant's answer, which related to the period after the appellant was called by the Department, suggests that he was confused by the question. 50 The unfairness of the Tribunal's line of questioning was not cured by the further question asking why the appellant had not informed the Department, and why he did not do "the right thing", in the absence of any identification of when it was suggested that the appellant ought to have done so, or any clear identification of "the right thing". Finally, it was unfair to find that the appellant had deliberately withheld information when he was asked only why it did not occur to him that he had to inform the Department. 51 Although the Tribunal expressly articulated its concern about the truthfulness of the appellant's evidence, a finding that the appellant's evidence was not truthful was insufficient to support a finding that the appellant had deliberately withheld information from the Department. 52 Thus, I conclude that the Tribunal's finding that the appellant deliberately withheld information involved a denial of procedural fairness and was not made on probative grounds. 53 While the finding was not directly relevant to the issue of whether he was in a de facto relationship with the sponsor, the determination of that issue depended significantly upon the Tribunal's assessment of the appellant's credibility. The Tribunal stated that the finding caused it concerns about the appellant's overall credibility and his willingness to be untruthful when seeking a visa. 54 On a fair reading of the Tribunal's decision record, the finding had a significant impact on the Tribunal's assessment of the appellant's evidence on the substantive question of the existence of the claimed de facto relationship. In those circumstances, in my view, jurisdictional error is established because the Tribunal's negative assessment of the appellant's credibility was materially affected by a serious adverse finding of fact, made without affording the appellant procedural fairness and in the absence of a probative basis. In the absence of any prejudice to the Minister, the seriousness of the error renders it expedient in the interests of justice to permit the appellant to rely on this ground of appeal. 55 Accordingly, I will grant leave to the appellant to file an amended notice of appeal including the following ground: The Tribunal made a jurisdictional error by finding that the appellant deliberately withheld information from the Department which finding affected the Tribunal's assessment of the appellant's case that he was in a de facto relationship with his sponsor. 56 Further, for the reasons above, the appeal on this ground must succeed.

Second proposed new ground of appeal 57 The second proposed ground is that the Tribunal "fell into jurisdictional error by forming an adverse credibility finding that was critical to the decision of the decision-maker that was based on minor or trivial inconsistencies, and that largely resulted from an oversimplification or mischaracterisation of the evidence". 58 The following eight particulars of the ground of appeal are set out in the proposed amended notice of appeal: 1. The Tribunal was critical of the appellant for not knowing the name of the shops that the parties do their shopping. But it failed to take into account the applicant's evidence that they shopped in several different shops in Cabramatta that were owned by Lebanese and Chinese people and unlike a shopping centre, they did not have well-known names like "Woolworths". 2. The Tribunal was critical of the appellant for merely not knowing that the sponsor had increased the monthly mortgage repayments from $1,200 to $1,600, despite accepting that the appellant is helping to pay off the mortgage, especially as the sponsor had not been working for the past year. 3. The Tribunal was critical that neither of the parties knew the amount in their joint bank account, but that was contrary to the actual evidence. 4. The Tribunal was critical of the appellant for not knowing the actual name of the Centrelink payments the sponsor receives, despite him stating that it related to disability and unemployment. 5. The Tribunal was critical of the sponsor for not knowing the exact ages of the appellant's adult daughters, notwithstanding she knew their approximate ages. 6. The Tribunal was critical of the appellant for not knowing the TV program that the sponsor watched, notwithstanding that the appellant said she watched it before he came home from work. 7. The Tribunal was critical that the appellant said that when he was not working that he helped at the farm and the sponsor said that he only helped once a month. However, that is an oversimplification or mischaracterisation of the evidence. 8. There are other numerous nit-picking alleged inconsistencies identified by the Tribunal that may be elaborated upon in the appellant's written submissions.

Legal principles 59 The appellant referred to the proposition stated by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78] and referred to by the Full Court in DAO16 above, that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. 60 This proposition is not relevant to the present case. The Tribunal did not make a general adverse credit finding in relation to either the appellant or the sponsor beyond the finding, identified earlier, that the Tribunal had concerns about the appellant's "overall credibility and his willingness to be untruthful when seeking a visa". Rather, the findings particularised above were relied upon to determine, adversely to the appellant, the factual question whether he was in a de facto relationship with the sponsor.

Consideration 61 The Tribunal was required to evaluate the available evidence to determine whether the appellant and the sponsor were in a de facto relationship within the meaning of the Act. The fact that the Tribunal identified inconsistencies that might be described as minor or trivial does not, without more, indicate error. 62 Further, whether an inconsistency is material or immaterial is generally a question of fact for the Tribunal. The appellant criticised the Tribunal's negative evaluation of his evidence concerning joint activities of himself and the sponsor. However, when requested, the appellant had identified their joint activities as shopping and attending parties and functions. In that context, it was open to the Tribunal find that the appellant's evidence about those issues was "very vague and uninformative". The mere fact that the Tribunal did not explicitly refer to the appellant's evidence concerning shopping does not indicate that it did not take that evidence into account. Nor is the finding that the appellant "had difficulties recalling where they do shopping" an unfair characterisation of the appellant's evidence. Nor is it necessarily "petty" or indicative of error that the Tribunal found that the appellant could not recall when they last attended a party, particularly where the appellant had identified this as a joint activity that he engaged in with his sponsor. 63 Similarly, it was a question of fact for the Tribunal whether it was significant that the appellant did not know that the sponsor had increased the monthly mortgage repayments from $1,200 to $1,600, based on the Tribunal's observation that a significant increase in repayments may be something that parties in a de facto relationship may be expected to have discussed. That latter observation is not unreasonable and did not require an evidentiary foundation: it is nothing more than a statement as to the Tribunal's understanding of the kinds of things that parties in a de facto relationship may do. 64 The appellant contended that the Tribunal's finding that a bank account was not being used as a joint account was an "oversimplification" of the evidence. I do not agree but, in any event, the finding does not reveal error. It was not necessary for the Tribunal to refer to every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. 65 The appellant contended that the Tribunal had made an error of fact in finding that neither the appellant nor the sponsor were aware of how much money they had in a joint bank account. The appellant's relevant evidence was: [Tribunal]: … [H]ow much money is in the account? [Appellant]: I don't know how much is in it. [Tribunal]: How much is in the joint account? [Appellant]: It varies week to week. [Tribunal]: So at the moment how much money is there in your joint account? [Appellant]: I have taken out the whole lot because I had had to pay lawyer and everything else. A lot of money. [Tribunal]: So there is no money in your joint account? [Appellant]: Forty dollars. 66 The sponsor's relevant evidence was: [Tribunal]: How much money do you presently have in your joint account? [Sponsor]: Very little. [Tribunal]: How much is very little? [Sponsor]: Very little. I haven't checked but I know that it is very little. [Tribunal]: … I don't know what you mean by very little. [Sponsor]: Under $1,000. [Tribunal]: So you really don't know how much is in the account? [Sponsor]: No, because I took out some money but I didn't check. [Tribunal]: So your husband suggested you are not really using that account; you told me that you are using this account to pay bills. If you are using that account for your regular payments presumably you should know how much money is in it. [Sponsor]: Because I would take out cash and I would use that to pay things and he doesn't really know what I use it for. [Tribunal]: Well that is fine. So you presumably know what you use the money, how you use the money, so I don't understand why you wouldn't know how much money you have in that account? [Sponsor]: No, because I didn't check. I usually just go to the bank and I ask them can I take out $1,000 and if they say yes, then I take it out. 67 Based on that evidence, it was plainly open to the Tribunal to conclude that the sponsor was not aware of the balance of the joint account. It was not necessary to accept the appellant's evidence that the account held $40, following his previous responses. I do not accept that the Tribunal made an error of fact on this point. 68 The appellant referred to the Tribunal's finding (at para 17 of its decision record) that the appellant "could not state what Centrelink payment the sponsor receives". The appellant contended that this was a "mischaracterisation" based on the following evidence: [Tribunal]: … Is she getting some kind of Centrelink benefit at the moment? [Appellant]: Yes she is on a payment but that depends on my income as well. If I get a lot of income she doesn't get anything. [Tribunal]: What kind of payment is she getting? [Appellant]: I don't know. I don't know what it is called. [Tribunal]: Is it related to her health condition? Does it relate to her being unemployed? Does it relate to her being a parent - or (indecipherable) [Appellant]: Yes disability and unemployment. [Tribunal]: It is either one or the other, why would you be guessing? Why would you not know? [Appellant]: I don't know because she always me for my papers - I am not too sure they payments she got. 69 Based on the transcript set out above, I do not accept that the Tribunal's finding involved any mischaracterisation of the appellant's evidence. 70 The appellant complained that the Tribunal's finding that the appellant and the sponsor have little interest in each other's children (para 14 of the decision record) was based on "minor" and "trivial" matters including: (1) that the sponsor did not know the exact ages of the appellant's adult daughters, notwithstanding she knew their approximate ages; (2) the appellant knew that the sponsor's older son used to work for a tissue factory and then as a delivery driver, but did not know that he was presently unemployed; and (3) the appellant did not know for how long the sponsor's younger son went to TAFE. 71 This complaint does not reveal any jurisdictional error: it goes no further than disagreement with the Tribunal's finding of fact which was open on the evidence. 72 Similarly, it was open to the Tribunal to rely on the appellant's unawareness that the sponsor regularly watches Chinese dating programs as an indicator of a lack of communication, lack of interest in the sponsor's affairs and a lack of commitment to the relationship between them. The Tribunal noted the appellant's evidence that he was at work when the program started; it was not obliged to accept that as rendering his lack of knowledge irrelevant. 73 The appellant contended that the Tribunal had oversimplified or mischaracterised the evidence concerning the appellant's work at the farm but did not demonstrate any relevant oversimplification or mischaracterisation. Accordingly, I am not satisfied that there was any relevant error in relation to the Tribunal's findings on that subject. 74 Finally, the appellant referred to the Tribunal's findings that it was "not satisfied they owe legal obligations towards each other" and "given their lack of knowledge about each other's financial arrangements, that there is only limited sharing of day to day household expenses". Although the appellant submitted that these conclusions lacked any probative foundation, he did not identify any relevant legal obligations between the appellant and the sponsor. The Tribunal did not find that the appellant and sponsor had no knowledge of each other's financial arrangements, but had a basis for concluding that they did not have "adequate" knowledge of each other's financial circumstances, and for concluding that there was only limited sharing of day to day household expenses. Accordingly, the appellant has not identified any jurisdictional error in connection with these findings. 75 For these reasons, I am not satisfied that proposed ground 2 has sufficient merit such that it is expedient in the interests of justice to permit the appellant leave to rely on that ground. 76 Accordingly, that leave is refused.

Conclusion 77 The appeal must be allowed. The matter should be remitted to the Tribunal for determination according to law. The Minister should pay the appellant's costs of the appeal and of the proceeding in the FCCA. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.