Tran v Minister for Home Affairs

Tran v Minister for Home Affairs - [2019] FCA 1126 - FCA 2019 case summary — Zoe

[5]

The first and second hearings before the Tribunal 7 The issues of whether there existed a genuine spousal relationship and of whether family violence had occurred were set down for the reception of evidence before the Tribunal on 2 March 2017 (the first hearing). However, when the matter came on, Ms Tran claimed to be extremely distressed as Mr Bozsity was said to be in hospital suffering heart and lung problems and close to death. She said she wished to be with him in hospital. The Tribunal adjourned the hearing given Ms Tran's circumstances and extreme distress. Somewhat surprisingly, Ms Tran resisted that course and claimed that as she had lived with the sponsor for three years she was entitled to her visa. Nevertheless, the hearing was adjourned. 8 On 3 April 2017, the Tribunal received a statutory declaration from a psychologist, Ms Ana Borges, on behalf of Ms Tran. In it, Ms Borges indicated Ms Tran was scared of Mr Bozsity and she believed it would be dangerous to attempt a relationship with him. Ms Borges identified that Ms Tran had determined to stay separated from Mr Bozsity. 9 On 5 June 2017, the Tribunal wrote to the appellants advising that the hearing of the matter would resume on 26 June 2017. This hearing, the second hearing, proceeded in the presence of the appellants and their solicitor / registered migration agent, an interpreter, and a support worker for Ms Tran in accordance with the Vulnerable Persons Guidelines. 10 Substantial evidence was received by the Tribunal at the hearing on 26 June 2017. During its course the Tribunal explained to Ms Tran and her advisors that the Department had received anonymous information about her which was subject to a s 376 certificate. The effect of the certificate was that the Tribunal had a discretion to exercise as to whether it would disclose the information to the appellants. It indicated that it considered the certificate was valid and provided a copy to Ms Tran's solicitor. It asked her if she wished to make submissions regarding the certificate. None were made. Nevertheless, pursuant to s 359AA of the Act the Tribunal put particulars of the information which was subject to the certificate to Ms Tran. It was to the effect that on two occasions the Department had received anonymous reports that the relationship between Ms Tran and Mr Bozsity was contrived, that Ms Tran had paid money for the contrived relationship to assist her to achieve permanent residency and that she had made threats to the sponsor that she would make false complaints to the police if he did not proceed with the arrangement. The appellants were asked whether they would like time to deal with this material but, instead, they chose to respond orally to it at the hearing. Other evidence was received about the alleged family violence and the present state of the relationship. On the latter topic Ms Tran gave evidence that she was not then living with Mr Bozsity and that she was afraid to go back to him because of the abuse which she had previously suffered. The hearing came to a conclusion. 11 On 28 June 2017, the Tribunal received a letter from Ms Tran which stated that she had lied to the Tribunal about her current living arrangements. She said that the truth was that she was, in fact, living with Mr Bozsity and, indeed, had been since mid-May 2017. No explanation was given as to why she had allegedly lied about not living with Mr Bozsity or why she had adduced the evidence of a psychologist that she was too scared of him to resume the relationship.

[7]

Findings of the Tribunal 15 The Tribunal concluded that the parties were validly married but that their circumstances did not meet the requirement of a "genuine and continuing spousal relationship". In reaching the latter conclusion it sequentially referred to all of the matters set out in reg 1.15A(3) of the Migration Regulations 1994 (Cth). In its reasons it stepped its way through those matters and made findings with respect to them. Ultimately, it concluded that Ms Tran's evidence was lacking in credibility and inconsistent in many respects such that it was not possible to accept her as a truthful witness. It considered the anonymous information provided to the Department was consistent with its conclusion that Ms Tran and Mr Bozsity had contrived their relationship for immigration purposes. It found that it did not consider the circumstances of the relationship to be genuine and continuing with a mutual commitment to a shared life together. 16 The use of the anonymous information given to the Tribunal formed a significant part of the appellants' submissions on appeal. The substance of what occurred is recorded in the Tribunal's reasons as follows: 25. The Tribunal explained to the primary applicant that from time to time the department receives information related to Visa application before it. In this case the department has received some such information which is subject to a s.376 certificate. The effect of a s.376 certificate is that the Tribunal is given a discretion as to whether to disclose the documents and information to the applicant. 26. The Tribunal explained that in this case it considered the certificate valid and provided a copy to the primary applicant's registered migration agent, and asked her if she wished to make submissions regarding it to the Tribunal. She did not make submissions. The Tribunal formed the view that the material was relevant, and put the gist of it to the applicant pursuant to s.359AA of the Act. The Tribunal told the primary applicant that on two occasions there had been anonymous reports that the relationship was contrived, that the primary applicant had threatened the sponsor that she would make false police complaints, and that she had paid for the relationship to achieve permanent residency. 27. The primary applicant's response was that her marriage was real, and that she and her husband loved each other. 17 As mentioned, the Tribunal proceeded to consider the several elements of reg 1.15A and determined they were not in a real spousal relationship. To an extent the anonymously received information provided some corroborative support for that conclusion. At paragraph 83 of its reasons it said: 83. Whilst ordinarily the Tribunal would not give weight to anonymous third party "dob-ins" sent to the Department, in this instance the Tribunal places some weight upon them, as the allegations contained therein are consistent with a contrived relationship for immigration purposes, which is what this relationship appears to be, based on the evidence before it. 18 In other words, the anonymous information was consistent with and corroborated the view which the Tribunal had otherwise formed from the circumstances of the case.

[8]

Application for review to the Federal Circuit Court 19 The application for review to the FCC, which contained a dozen vague grounds none of which were particularised, was heard on 9 November 2018. In that application an issue was raised as to the validity of the Secretary's s 376 certificate. The parties agreed that the certificate was invalid with the result that the information was not confidential and the document containing the record of the information ought to have been given to the appellants. The departmental documents recording the receipt of the anonymous information were disclosed to the appellants' lawyers a week prior to the hearing. The primary judge considered the scope of the information which was the subject of the invalid s 376 certificate and identified that it was of relatively brief compass being: The Applicant and the daughter currently reside at 68 Skylark Street, Inala. The Applicant has paid the sponsor some money to do a fake marriage in order for her to remain in Australia. The Applicant has tried to do paperwork with Sam Nguyen (barrister), located in Inala, to bring her two daughters who still reside in Vietnam. The Applicant has threatened the sponsor on many occasions that if she does not get her PR, she will go to the police in the Vietnamese community to accuse and allege that he has physically abused her and sexually abused the stepdaughter, the Second Applicant. This marriage was set up by the Applicant's elder sister, who was an Australian citizen. She is known by the name of Ngoc. Ngoc has arranged for another sister and brother-in-law to come over on carer's visas when her and her husband do not, in actual fact, need it. Ngoc has also arranged a fake marriage for her brother so that he and his son can stay in Australia permanently. The costs of these fake marriage are 80k. The paperwork has been done through Sam Nguyen. He has been paid handsomely. 20 It was submitted to the FCC on behalf of Ms Tran that, had the relevant information had been provided to her prior to the hearing, she would have been able to immediately refute it because she does not have a sister called Ngoc. Similarly, it was said that had the information about the Barrister called Mr Nguyen been made available, an adjournment could have been sought so that he could provide evidence to the Tribunal to demonstrate what was said about him was false. As the matter proceeded, its main focus was the manner in which the Tribunal dealt with the anonymous information provided to it. That said, the appellants did not abandon any of the other numerous grounds of review. 21 In relation to the invalid s 376 certificate, the FCC determined that the substance of any relevant information was put to the appellants and they were given an adequate opportunity to respond. The primary judge was influenced by the fact that the substance of the information was verbally provided to Ms Tran and her migration agent on 26 June 2017, being the second hearing, which was some two and a half months prior to the final hearing. Had the appellant wished to respond to the information she had more than sufficient time to do so. As a result, the primary judge held that no relevant breach occurred causing the hearing not to be fair or just.

[11]

New evidence on appeal 24 At the commencement of the appeal the appellant sought to adduce additional evidence which related to the information that had been the subject of the s 376 certificate. It had not been adduced for the hearing of the application for review before the FCC despite the fact the departmental documents recording the information which were the subject of the s 376 certificate, had, by then, been provided to the appellant's solicitors. 25 It is not in doubt that this Court may receive further evidence on appeal, including in migration matters: NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 (NASB). Generally, before any such additional evidence is received, two conditions must be satisfied. First, the party seeking to adduce the evidence must establish that it could not, with reasonable diligence, have been adduced at the trial from which the appeal is brought. Secondly, the evidence must be of such a nature that, very probably, the result would have been different had it been adduced at the hearing. In the circumstances of an appeal on a migration matter, these requirements will generally mean that it has to be shown that the fresh evidence would have a bearing on the identification in the lower court of the jurisdictional error which is alleged to exist. 26 Here the application relates to two affidavits. One from Ms Pamela Tieu, the solicitor for the appellants, and the second from Ms Thuan Thi Tran, who is one of Ms Tran's sisters. The affidavit of Ms Tieu explained the circumstances of the receipt of the information and some evidence about Mr Sam Nguyen who was referred to in the anonymous information. Ultimately, the evidence about Mr Nguyen was not relied upon which is not surprising given its lack of relevance. The affidavit of Ms Thuan Thi Tran was a refutation of some of the anonymous information to the extent to which it related to her. 27 It should be observed that very little attention was given by the appellants, either in the affidavits or by submission, to satisfying the requirements which had to be met before the fresh evidence could be received on appeal.

[12]

Whether the evidence could have been obtained previously 28 In this case the documents to which the new evidence relates were contained in an affidavit of Ms Allen filed in the FCC on Friday, 2 November 2018. A copy of that affidavit was served on the appellants' solicitor on that day. The affidavit exhibited departmental documents recording the receipt of the anonymous information and its content. The hearing before the primary judge had been set for the following Friday, 9 November 2018. It is not said that the appellants' solicitor was not aware of the affidavit filed by the Minister or of the documents which it contained. It was sent by email to the appellants' counsel on 2 November 2018, but was not opened by him until the afternoon of Monday, 5 November 2018, being after the submissions of the parties had been filed. In an affidavit of Ms Tieu it is said that neither Mr Boccabella nor herself turned their minds to whether additional evidence should be adduced by the appellants before the FCC at the hearing on the Friday. She further states that it was not until after the hearing when they showed the materials to the appellant that she informed them that the content of the materials was wrong and untrue. It is asserted in Ms Tieu's affidavit, albeit without explanation, that it would not have been possible to for the appellant to have provided a proper and considered response to the materials prior to the FCC hearing on 9 November. It is not said in Ms Thuan Thi Tran's affidavit that, had she been asked to provide an affidavit between 2 and 8 November 2018, she would not have been able to do so. 29 The initial difficulty is the absence of evidence that the material now sought to be adduced could not, with reasonable diligence, have been adduced at the hearing before the FCC. The mere assertion of Ms Tieu is of little evidentiary weight and seems improbable in the circumstances where the material had been provided to the appellants at least six days prior to the hearing. That is especially so when it is considered that the appellants could have sought an adjournment in order to afford them sufficient time to deal with the content of the documents annexed to Ms Allen's affidavit. As the Minister submits, the documents were only 10 pages in length and their substance was "succinct" (as the primary judge put it at [54] of the primary judgment). Although being ten pages, in reality, only a few pages were of significance, being that which recorded the information given to the department. Most of that information was recorded in a paragraph of about ten lines. In that respect, any information to which the appellants might have wished to respond was of relatively short compass and some realistic reason would have to be given to satisfy the Court that the responsive evidence could not, with reasonable diligence, have been obtained for the FCC hearing. 30 The Minister accepts that the affidavit of Ms Allen which was filed on his behalf was not timely. That said, it was delivered six days prior to the day of the hearing and that afforded the appellants more than sufficient time to answer it with their own material. The only apparent reason proffered as to why there was no response was that the material was not considered by the appellants' legal advisers in a timely manner and they did not discuss it with the appellants until at or after the FCC hearing. Such conduct cannot be said to be acting with reasonable diligence. 31 It must also be kept in mind that the material in question was the anonymous information provided to the Department in relation to Ms Tran's application for a visa and that its substance had been given verbally to Ms Tran at the second hearing on 26 June 2017 and again at the third hearing on 11 September 2017. Had the appellants wished to respond to the material they could have done so after the second hearing or sought time to respond to it at the third hearing. They did neither and no explanation has been provided as to why that was so. Neither Ms Thuan Thi Tran nor Ms Tieu gave any evidence that they would not have been able to produce their affidavits or affidavits in substantially the same form after the second hearing and prior to the third hearing were they asked to do so. 32 It is also relevant that Ms Thuan Thi Tran asserted that her name is not "Ngoc", being the name of the person identified in the anonymous information, but only one person called her that. It is unclear why Ms Tran, in response to the allegation at the second and third hearings that she had a sister called Ngoc, did not then deny it. Although the appellants now assert that, had they seen the documents, they would have been able to deny the allegation, no explanation is provided as to why Ms Tran could not have denied it when it was put orally to her at the Tribunal.

[13]

Alleged non-compliance with the Legal Services Directions 33 But for the fact the submissions of the Minister in reply raised the issue of the non-compliance with the Legal Services Direction, albeit in response to a submission from the appellants, it would not have been appropriate to consider the Model Litigant Rules in these reasons. Section 55ZG(3) of the Judiciary Act 1903 (Cth) provides: (3) The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth. 34 The appellants submitted the conduct of the legal representatives of the Minister was contrary to the Model Litigant Rules, being a standard of professional conduct prescribed by the Commonwealth Attorney-General, which those acting on behalf of the Commonwealth in litigation are bound to follow. The rules are issued under s 55ZF and are Appendix B to the Legal Services Directions 2017. However, nothing mentioned in those very high standards of professional conduct creates rights for other parties to the litigation. The consequences for a failure to meet those exacting standards are found in item 14.1 of the Directions and there is nothing which suggests that other parties in litigation are entitled to rely on their non-observance as a foundation for gaining some forensic advantage. Indeed, s 55ZG(2) provides that compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General. 35 In any event, in this case it has not been shown that the timing of the delivery of the affidavit of Ms Allen contravened anything contained in the Model Litigant Rules. The reasons for the timing of the delivery of the affidavit are not known and there may be many explanations as to why it was delivered when it was. It is often the case in matters involving the Commonwealth that many levels of authority must be obtained before documents are disclosed or significant and important steps are taken. In this case the affidavit containing the documents in question was delivered in a sufficiently timely manner and it was only the inadvertence by the legal representatives for the appellants which resulted in the appellants being in a position where they were unable to respond to it at the FCC hearing. There was no discernible non-compliance with the Model Litigant Rules and, even if there were, nothing flows from it. 36 Moreover, the documents contained in Ms Allen's affidavit were considered at the hearing before the FCC and, on the assumption that the appellants' legal advisers had not had sufficient time to take instructions with respect to them, no sufficient explanation has been given as to why the appellants did not seek an adjournment of the proceedings to allow them time to deal with them. One might surmise that it was because no adequate explanation could be given. If the appellants were truly taken by surprise they would have sought an adjournment at that time.

[15]

Would the result have been different if the evidence was adduced? 38 The second criterion to be satisfied in order to adduce new material on appeal involves a consideration of the probable effect of the fresh evidence on the outcome of the hearing had it been available. It must be shown that the evidence is of such a nature that, very probably, the result would have been different had it been adduced at the hearing. Again, the appellants encounter difficulties in this respect and very little was advanced by them to demonstrate exactly how the evidence would have been sufficient to demonstrate to the FCC some error on the part of the Tribunal. Presumably, the argument is that if the anonymous information had been disclosed, Ms Thuan Tri Tran could have been called to give the evidence before the Tribunal to rebut the allegations made against her and because it was not made available to her, the Tribunal proceedings were not fair and just. 39 In submissions the appellant focused attention on three matters all of which were put to Ms Tran in the course of the Tribunal hearing. 40 First, that Ms Tran's marriage was fake and that Mr Bozsity had received payment of $80,000 to assist her and the second appellant to remain in Australia. It was also said that Ms Tran had threatened Mr Bozsity that if he did not continue to assist the appellants, untrue allegations of sexual abuse would be made to the police about him. As the Minister submitted, these allegations were put to Ms Tran during the second hearing on 26 June 2017 (AB 436-439), and again at the third hearing on 11 September 2017 (AB 480-481). On each occasion she denied them. 41 Second, that Ms Tran's sister, referred to as Ngoc, had arranged a fake carer visa to assist other sister and her husband to migrate to Australia. Again, these matters were put to Ms Tran at the second hearing (AB 439) and at the third hearing (AB 483), where she denied them. 42 Third, that Ms Tran's sister, Ngoc, also arranged a fake marriage in exchange for money for her brother and so that he and his son could migrate to Australia. These allegations were put to Ms Tran at the second hearing (AB 439) and at the third hearing (AB 483) and, similarly, they were denied. 43 In her affidavit, Ms Thuan Thi Tran deposes that she believes that she is the person referred to as "Ngoc" in the anonymous information provided to the Department and she identifies the person whom she believes refers to her by that name. She also denies all the allegations made against her and she gives some contrary evidence although it is generally her statements of belief. She further says that the giving of information to the Department was motivated as a result of a loan dispute between herself and the person she identifies as probably having contacted the Department. 44 The evidence of Mr Thuan Thi Tran corroborated the evidence given by Ms Tran at the hearing. That is the denial of the allegations that the marriage was paid for and was contrived. That said, the Tribunal formed an adverse view of Ms Tran's credit from a range of matters which were outlined at paragraphs 79 to 82 of its reasons, including the lies which were told to the Tribunal which Ms Tran admitted in writing. None of those related to the issues raised in the anonymous material. It is most unlikely that anything in the further material which the appellants seek to adduce on the appeal could or would have resurrected the conclusion as to Ms Tran's credibility based upon those other considerations. So, even if the effect of the anonymous material were negated, it is apparent that the Tribunal had concluded that the relationship between Ms Tran and Mr Bozsity was not a genuine one. 45 As discussed, the purpose of Ms Thuan Thi Tran's affidavit seems to be to show that had notice of the anonymous information been given, evidence rebutting it could have been obtained. However, merely rebutting the information is not sufficient. The evidence would have to go towards establishing jurisdictional error. Subsequently in these reasons it is identified that the appellant did not demonstrate that compliance with the obligation to disclose the anonymous information could realistically have resulted in a different outcome. For the purposes of the application to admit fresh evidence on appeal, the question is whether it has been shown that such an outcome is "very probable": NASB at [42]. No real attempt was made to do that. Indeed, as these reasons subsequently show, the affidavit material sought to be relied upon would not establish any "material" non-compliance with any obligation to disclose the information earlier. Based on that conclusion, it has not been shown that, very probably, the result would have been different had the information been adduced at the hearing. 46 The appellants also relied on the affidavit of Ms Tieu which sought to adduce evidence that the barrister and migration agent, Mr Sam Nguyen, had been the subject of investigation and found guilty of professional misconduct on a number of occasions. As at the date of the affidavit it seems that Mr Nguyen did not hold a practicing certificate and he had been barred from acting a migration agent. The import of the affidavit about Mr Nguyen was not immediately apparent and Mr Boccabella, for the appellants, was not able to provide any substantive reason as to why the information in it would have disclosed a jurisdictional error in the reasons of the Tribunal.

[18]

How non-compliance with the Act may generate a jurisdictional error 50 One of the difficulties with the resolution of this issue was the confused nature of the appellants' submissions which failed to focus on any particular non-compliance with the Act but which tended to meander across a range of supposed contraventions, some of which were not contraventions at all. 51 Despite the existence of the purported certificate, the Tribunal exercised its discretion under s 376(3)(b) to disclose all of the relevant information to the appellants during the course of the hearings. In doing so it acted in accordance with s 359AA and there was no suggestion that this section was not complied with. Indeed, it also disclosed the existence of the certificate from the Secretary and gave Ms Tran and her solicitor the opportunity to comment upon it. 52 The Minister submitted that the mere fact that the internal Departmental documents recording the receipt of anonymous information were not disclosed to the appellants does not give rise to a jurisdictional error. He relied upon the observations of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599. That matter concerned the giving of certificates by the Secretary of the Department under s 438 of the Act which is similar in effect to s 376. The High Court observed that the failure to disclose documents to an applicant before the Tribunal in reliance on an invalid certificate had the consequence that the Tribunal will have breached its obligation of procedural fairness. However, in order for that breach to constitute a jurisdictional error it must give rise to some "practical injustice" in the sense that the breach must have resulted in the denial of an opportunity to make submissions and the denial was material to the Tribunal's decision. At 610 [38], the plurality, being Bell, Gageler and Keane JJ, said: [38] Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision. (footnotes omitted) 53 In this matter, it is the latter question of "practical injustice" which is most relevant. In that respect, their Honours subsequently said (at 611): Materiality [45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. 54 In ascertaining whether the breach of the obligation of procedural fairness was material, the Court identified (at 612 [50]) that it was permissible to examine the undisclosed material considered by the Tribunal. Likewise, it would be relevant to ascertain what the appellant would have done had the information been disclosed. 55 It follows that where there has been an alleged breach of the procedural fairness requirements imposed upon the Tribunal, two questions arise. First, what is the relevant non-compliance with the Act which denied the applicant an opportunity to make submissions or, perhaps, an opportunity to adequately respond? Secondly, could compliance with the obligation have realistically resulted in a different decision? It is appropriate to deal with these questions in succession.

[19]

Whether there was non-compliance with s 359A or s 359AA 56 The written submissions of the appellants failed to focus upon any particular breach of the Migration Act by the Tribunal save that they referred to the obligation in s 357A(3) mandating it to act in a way that is "fair and just". It was said that this section was not merely platitudinous and reference was made to the second reading speech introducing the amendment which inserted the section, which indicated that it required to the Tribunal, "when applying the requirements and procedures set out in relevant divisions of the act, to act in a way that is fair and just": Hansard, House of Representatives, 20 June 2007, page 176. It was said that the Tribunal did not act in a way which was fair and just by giving the information to the appellants under s 359AA and it ought to have provided the documents to them under s 359A by physically providing the documents. In support of this it was said in the appellants' written submissions: Australian standards of justice do not operate on the basis of a tribunal dribbling out adverse information orally to an applicant when there is a document which sets everything out properly. 57 There was, of course, no dribbling out of material to the appellants and, in particular, to Ms Tran. The Tribunal obviously acted under the mistaken belief that it was entitled to keep the information confidential by reason of the s 376 certificate. Despite that, it exercised its discretion under s 359AA to disclose it to Ms Tran and her solicitors during the course of the hearing. That section provided: Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 360: (a) the Tribunal may orally give to the applicant 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; and (b) if the Tribunal does so - the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. … 58 It was put to the primary judge that this section had not been complied with although the particular contravention was not articulated with any precision. No error in complying with it was identified on the appeal and, contrary to the appellants' submission, it is apparent that the Tribunal fully complied with its requirements. The Tribunal gave the s 376 certificate to Ms Tran's solicitor and they were invited to comment on it. Thereafter, the Tribunal member identified the anonymous information the Department had received about the appellants' applications for visas and, in particular: (a) that Ms Tran paid Mr Bozsity to assist her to obtain a partner visa and to enter into a fake marriage; (b) that Ms Tran made threats against Mr Bozsity that she will make false allegations of him abusing her and sexually abusing Miss Le; (c) that the marriage was set up by her older sister who is an Australian citizen and known by the name of Ngoc; (d) that Ngoc had also arranged for another sister and brother-in-law to come to Australia on a carer's visa; (e) that the sister Ngoc also arranged a fake marriage for her brother; and (f) that the fake marriages cost $80,000 and the paperwork is being done through a person called Sam Nguyen. 59 In compliance with s 359AA, the Tribunal informed Ms Tran and her solicitor and migration agent that the material identified would be the reason, or part of the reason, for affirming the decision under review. She went on to advise that the material would be relevant because it would indicate the relationship with Mr Bozsity was created for the purposes of obtaining a visa to remain in Australia. She also advised that Ms Tran was entitled to take time to comment on or respond to the information and she repeated the information and again invited Ms Tran to take time to speak to her migration agent before responding. Indeed, she offered the opportunity to consider the material on a number of occasions. However, Ms Tran indicated that she was able to answer the allegations in the course of the hearing and did so. Her solicitor did not demur to that course. Ms Tran's answer to the allegations was that her marriage was real and that she and Mr Bozsity loved each other and that is why they wanted to come together. She said that her marriage was not arranged by anyone. 60 During the course of the third hearing the Tribunal member, again, went through the information covered by the 376 certificate. The member identified each piece of information and Ms Tran was given a further opportunity to, and did, respond to it. 61 It is to be recalled that this third hearing occurred some two and a half months after the second hearing, being the occasion when the information was first disclosed to the appellants and their solicitor. As has been discussed above, there was abundant time for the appellants and or her solicitor to provide a considered response to the anonymous information. On 11 August 2017, the appellants were advised that a further hearing in relation to the application would occur on 11 September 2017. Necessarily if they wished to correct anything or adduce evidence about the matters which were the substance of the anonymous information they had sufficient time to do so. In response to this point the appellants submitted that by the time of the third hearing they were unrepresented. 62 The appellants' written submissions before this Court do not identify any piece of information which had been provided anonymously to the Department which was not identified to the appellants at the hearings. That being so, it is difficult to detect any non-compliance with s 359AA. Clear particulars of each piece of information were provided. Careful attention was paid to ensuring that the appellants understood why the information was relevant to the review as it was explained to them. They were orally invited to comment on the information and told that they may have further time to respond to it. The Tribunal was particularly careful to ensure that it complied with each of the requirements of s 359AA and the appellants have not identified any way in which that did not occur. 63 Mr Boccabella submitted that the Tribunal ought to have acted under s 359A rather than s 359AA, such that the actual documents received by the Department ought to have been provided to the appellants and their migration agent and not just the information. It was not said that there was any breach in failing to do so save that there it was not, in a general sense, "fair and just". 64 The Minister submitted that there was no requirement in s 359A for the Tribunal to provide the appellants with the Departmental internal documents which recorded the anonymous information received. It was submitted the Tribunal's compliance with s 359AA rendered s 359A inapplicable: see s 359A(3). There is force in that submission. The Tribunal has a discretion as to the manner in which information is provided. Either of ss 359A or 359AA will adequately provide sufficient details of the information to an applicant and it cannot be said one is preferable to the other. 65 The Minister made an alternative submission which appeared to be that the Tribunal had complied with 359A because the substance of the information was given to the appellants and that provided them with a meaningful opportunity to comment on it. That was a somewhat unusual submission when s 359A requires the information to be given by one of the methods in s 379A: see s 359A(2)(a). That latter section relates to the manner in which documents are physically given by the Minister to person and it is clear in this case that none of the prescribed methods was used. The Minister placed reliance on the observations of Flick J in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23], where his Honour said: [23] There may be circumstances in which the requirement to "give" information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such "information" is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the "information" in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But "information" for the purposes of s 424A cannot in all cases be clinically divorced from the context i[n] which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the "source" from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to "comment … or respond …" is meaningful. In some cases the disclosure of the "substance" of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases "clear particulars" may require more. 66 It is apparent that, in that case, his Honour was not suggesting that s 424A, which similarly required for the provision of documents, could be satisfied by the oral disclosure of the substance of the information contained in a document. That statement by his Honour could only relate to circumstances where the parts of a document given to the applicant disclosed the substance of the relevant information. 67 On the basis that the Tribunal disclosed to Ms Tran and her migration agent clear particulars of the information pursuant to s 359AA, s 359A was not applicable in the circumstances. There was no non-compliance with the latter section.

[21]

Non-compliance with s 362A 69 Although not raised in the primary written submissions it is apparent that the relevant contravention which occurred in this matter was the Tribunal's failure to comply with the requirements of s 362A. On 2 February 2016, the solicitors for the appellants wrote to the Tribunal seeking copies of the material on which had been given or produced to the Tribunal for the purposes of the review. Pursuant to s 362A(1) the appellants were entitled to that material including the records of the anonymous information. That latter information was not provided because the Tribunal mistakenly believed the s 376 certificate given to it by the Secretary was valid. Nevertheless, although not attended with any bad faith, there was a non-compliance with the requirement to provide the available information to the appellants. 70 Therefore, on an application for review, evidence would have been admissible to show what steps might have been taken to respond to the information had it been properly disclosed. In that respect, in order to pursue the arguments which they now do, the appellants ought to have adduced the evidence of Ms Thuan Thi Tran at the FCC hearing. It was not and they have not been able to satisfy the requirements for adducing the same on appeal. That being so, there is no admissible evidence as to what contradicting material might have been adduced by the appellants had the anonymous information been disclosed to them in compliance with s 362A. 71 Despite the above, and as submissions were made on the content of the affidavit of Ms Thuan Thi Tran, it is appropriate to consider what the position would have been had Ms Thuan Thi Tran's affidavit been received on appeal. It has to be assumed that had the anonymous information been disclosed in response for documents in compliance with s 362A, this affidavit would have been provided or Ms Thuan Thi Tran would have made herself available to give the evidence at the Tribunal. There is nothing to that effect in the affidavit or any other affidavit but it should be assumed in the appellants' favour that such would have been the case. In this respect, the appellants submitted Ms Tran would have been able to consult with her solicitors in a calm and private atmosphere in relation to the anonymous information rather than during the course of a hearing. It was said that proper instructions could have been taken and, after due reflection, the affidavit evidence of Ms Thuan Thi Tran could have been produced. That affidavit denied the allegations against her of arranging marriages for visa purposes in return for money and sought to give an explanation why a person might make such an allegation. It was also submitted that, for a person with no or limited English ability, the receipt of information in the course of the hearing was especially burdensome. Whilst there may be some force in submissions of this nature in some cases, they are ameliorated here where Ms Tran had the assistance of a solicitor and an interpreter. The effect of the submissions is reduced even further given Ms Tran's rejections of the opportunity to take time before responding to the allegations. 72 The possibility that Ms Thuan Thi Tran might have been called to give the evidence she set out in her affidavit, must be viewed against the fact that there were multiple hearings before the Tribunal and all of the relevant information was disclosed to Ms Tran and her solicitors at the second hearing. A third hearing was conducted some months later (of which Ms Tran had one month's notice) and the evidence of Ms Thuan Thi Tran was not sought to be adduced. Nor was any adjournment sought at either the second or third hearing to enable the appellants to have time to adduce it. That was despite the Tribunal member at the second hearing on three occasions offering Ms Tran and her solicitor time to respond to the material and making the same offer to Ms Tran at the third hearing. On each occasion the offer was rebuffed. As the Minister submitted, this strongly indicates that, had the relevant information been given in documentary form earlier, it is unlikely that Ms Tran would have sought to adduce evidence from her sister. The suggestion otherwise is contrary to Ms Tran's previous conduct. Certainly, the appellants' submission that had the information been disclosed earlier the evidence of Ms Thuan Thi Tran would have been obtained appears to be somewhat opportunistic given the events which actually transpired. 73 The Minister submitted that, in the circumstances of the two substantial hearings where the anonymous information was given to Ms Tran and that neither she nor her solicitor took the opportunities offered to take time to respond to it, Ms Tran was relevantly denied an opportunity to make submissions or to respond. Whilst that submission might be accepted, the real question is whether the non-compliance with s 362A denied the appellants any other relevant opportunity? 74 At the best for the appellants, after taking into account the content of the affidavit of Ms Thuan Thi Tran, albeit not satisfying the requirements for admission on appeal, it can be said that they lost the opportunity before the hearing to consider adducing the evidence of Ms Thuan Thi Tran in either written or oral form at the Tribunal. Whilst any such loss was greatly ameliorated by reason of the manner in which the hearings occurred which allowed the appellants to respond to the material and make submissions on it, it can be accepted that the some opportunity for reflection on the evidence and the ability to consider obtaining evidence from Ms Thuan Thi Tran was denied to the appellants.

[22]

Was the consequence of non-compliance with s 362A material? 75 On the above assumptions made in favour of the appellants, the next question is whether compliance with the obligation in s 362A could realistically have resulted in a different decision. 76 In this respect two matters need to be considered. First is the scope of the loss of an opportunity to respond to the anonymous material and to make submissions on it. Second is the qualitative nature of the anonymous information and the issue to which it went in the context of the reasons for decision. 77 The first matter is relevant to the materiality of any breach because it affects the magnitude of the impact which the loss of opportunity had on the outcome of the case. Here, as the above discussion discloses, although the appellants were not given advance notice of the anonymous material, it was eventually revealed and Ms Tran was offered the multiple opportunities to ask for time to respond to the information. She declined those opportunities. She was prepared to respond to the material and, at neither the second nor third hearing did she ask for time to obtain a statement from Ms Thuan Thi Tran. That is strongly indicative of the claimed lost opportunity having little real value to the appellants. 78 To the above it can be added that after the second hearing but prior to the third, Ms Tran wrote to the Tribunal. In that email of 28 June 2017, she explained that she had lied to the Tribunal two days previously about whether she actually lived with Mr Bozsity. However, she made no mention of the information which had been provided to her at the hearing concerning the allegations about her sister and she did not seek time to respond to it. The appellants were also given one months' notice of the third hearing and, despite that, failed to gather any evidence relevant to the content of the anonymous information. This would tend to support the proposition that she was satisfied with her response at the hearing and that she had no desire to obtain a statement from her sister. 79 It follows that the effect of the loss of opportunity to consider the anonymous information prior to the hearings ahead of trial was substantially diminished. 80 The second issue is to assess the qualitative impact on the decision of the Tribunal arising from the alleged loss of an opportunity to consider the anonymous information at an early stage. 81 Unfortunately, this was not a topic which was addressed in any detail by the appellants. Although it was said that, had the anonymous information been disclosed earlier, Ms Tran through her solicitors could have obtained better information with which to respond, the submissions did not attempt to detail how that could realistically have made a difference to the outcome of the matter. 82 The context in which the anonymous information was relied upon by the Tribunal must be understood. For the first 82 paragraphs of its reasons, the Tribunal considered the evidence it had received at the two substantive hearings and whether the requirements for a spousal relationship were met. Specific consideration was given to each of the integers of reg 1.15A. The financial aspects of Ms Tran's and Mr Bozsity's affairs did not point to a continuing spousal relationship. The evidence surrounding the nature of the household indicated that the parties were not actually living together at the relevant time although there was much inconsistency in that evidence. After the second hearing Ms Tran wrote to the Tribunal and admitted to lying to it about whether she and Mr Bozsity were living together at the time of the second hearing, but even that evidence was inconsistent. The Tribunal was specifically concerned with the evidence relating to the parties commitment to each other. The evidence of the time which they had spent together was inconsistent and, at best, the history of the relationship was chequered. Whilst at times Ms Tran insisted that she had been the subject of physical domestic violence at the hands of Mr Bozsity, she later denied any such thing had occurred. The Tribunal also noted several important inconsistencies in her evidence and concluded that Ms Tran was not a witness of credit and there were various pieces of evidence in support of that conclusion. A perusal of its consideration of those matters unequivocally shows that it did not accept that Ms Tran and Mr Bozsity were in a genuine spousal relationship. 83 From paragraph 79 of its reasons the Tribunal considered Ms Tran's credibility. It made a number of findings about Ms Tran's evidence being incomplete, inconsistent and duplicitous. It concluded that consideration at paragraph 82 where the member said: The Tribunal therefore does not consider the primary applicant to be a witness of credit. The Tribunal is not satisfied that she has told the truth or explained the many inconsistencies in her story satisfactorily. In forming this view, the Tribunal had regard to the statutory declaration of Ms Ana Borges dated 24 March 2017 referred to in paragraph 15 above. The Tribunal considers that it went out of its way to ensure that the primary applicant was appropriately supported in accordance with the Vulnerable Person's Guidelines. To that end, the Tribunal had a "soft touch" approach to questioning the primary applicant, and intended to ask the secondary applicant for further details, as requested in the statutory declaration. However, the evidence given by the secondary applicant was directly contradictory to that which was given by the primary applicant. 84 It was at paragraph 83 of the reasons, which is set out above at [17], where the Tribunal said that it placed some weight on the allegations in the anonymous information which was "consistent with a contrived relationship for immigration purposes, which is what this relationship appears to be, based on the evidence before it". It follows that the anonymous information was relied upon for corroboration of the views otherwise reached on an analysis of the integers of reg 1.15A showing that no genuine spousal relationship existed and that Ms Tran was not a witness of credit. A fair reading of the reasons shows that the Tribunal's ultimate conclusion was made, in the first instance, on the basis of the evidence concerning the incidents of their relationship without regard or reference to the anonymously received information, which merely corroborated it. 85 Even if the corroborating evidence from Ms Thuan Thi Tran would have dispelled the effect of the anonymous information, the Tribunal was nevertheless left with its initial conclusions about the lack of veracity of Ms Tran's evidence about her relationship with Mr Bozsity and its conclusion that they were not in a continuing spousal relationship. Ms Thuan Thi Tran's evidence would have done nothing to undermine that. 86 It follows that, on the assumptions that Ms Thuan Thi Tran's affidavit should be admitted on the appeal and that such evidence would have been provided had s 362A been complied with, the Court cannot be satisfied that such compliance could realistically have resulted in a different decision. Necessarily, the non-compliance with s 362A did not give rise to a jurisdictional error.

[27]

The sponsor's will 97 At [63] of its reasons the Tribunal said: In terms of legal obligations in respect of each other, the sponsor provided a copy of his will dated 22 May 2017 at the third hearing on 11 September 2017, in which he appoints his wife and son as the executors and trustees of his estate. The Tribunal considers that the date upon which the document was made indicates that it was prepared to bolster the claim of a genuine relationship, and places little weight on it as the sponsor evidence was that he rented his dwelling and the parties lived in straightened financial circumstances. There are no documents supporting any legal obligation owed by the applicant to the sponsor. 98 The appellants complain that the Tribunal's conclusion that the date on which the will was made indicates that it was prepared to bolster the claim of a genuine relationship, but that was something not put to any of the parties. It is not entirely clear what particular of which information was not allegedly put to the parties. All that is identified are the matters referred to in [63]. It can only be supposed that the relevant issue is the thought process of the Tribunal that it considered the timing of the creation of the will, being after the first hearing and shortly before the second hearing, undermined its veracity. 99 The principles relevant to the ascertainment of whether ss 359A or 359AA have been breached were usefully summarised by O'Callaghan J in Nguyen v Minister for Immigration and Border Protection [2019] FCA 159 at [28]: The relevant principles in relation to s 359A (and s 359AA and cognate provisions in other parts of the Act), may be summarised as follows: (1) The particulars that must be provided are particulars of "information", which does not extend to particulars of "subjective thought processes or determinations" or the "existence of doubts, inconsistencies or the absence of evidence" (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [23]-[28]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). (2) The information must be information that "would be the reason, or a part of the reason, for affirming the decision that is under review" (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]). (3) The information in question should in its terms involve a "rejection, denial or undermining" of the review applicant's claims relevant to the visa criteria in question: (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22]). (4) The relevant criteria depends on the Tribunal's "consideration", that is, its opinion, that certain information would be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [24]; SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [33]). (5) The section speaks of information which "would", not which "could" or "might", be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [25]). (6) The requirement to give information may not extend to a requirement to disclose the entirety of any document in which the information is contained. How much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]; referred to with approval in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [27], [32]). (7) The information that is provided must be sufficient to enable the applicant to meaningfully respond or comment to it (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]). (8) Breach of the duty to accord procedural fairness on the part of the Tribunal constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments (Hossain v Minister for Immigration and Border Protection 92 ALJR 780 at [30], [46], and [72]; Minister for Immigration and Border Protection v SZMTA and Anor; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [2]). 100 Here, the appellants obviously had the will in question and it was known to them. It appears that the gravamen of the concern is that they were not told of the inference the Tribunal might draw from the information. That would appear to be the subjective thought processes or determinations referred to in item 1 in the extract from O'Callaghan J's reasons in Nguyen. Such information does not have to be disclosed and there is no merit in this ground.

At a glance

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Source

Judgment (32 paragraphs)

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Legislation Cited (4)

Cases Cited (15)

Cited By (3)