The Arguments on Appeal
7 The appellant was represented on the appeal by Mr Morfuni, SC, who elaborated on a number of the grounds of appeal.
8 The first ground of appeal alleged that:
The learned Federal Magistrate erred in deciding that there was no jurisdictional error by the Migration Review Tribunal.
9 Reg 1A requires the Tribunal to assess at the time of decision whether the relationship is genuine and continuing. The first ground of appeal alleges that the Tribunal applied the wrong test by requiring proof that the relationship had existed, endured and been maintained over the period from the date of grant of the temporary visa until the date of hearing. Some examples of the use of language by the Tribunal were referred to by the Federal Magistrate. For instance, the Tribunal said at [32]:
It is required that the visa applicant continue to be the spouse of the nominator, and that the visa applicant continues to be nominated by the nominating spouse, and that the parties to the spousal relationship have not changed.
10 At [37] the Tribunal found that the visa appellant was in a spousal relationship with the nominator at the time of the visa application. However, the Tribunal also found:
...that the visa applicant does not continue to be the spouse of the nominator.
11 The Federal Magistrate also drew attention to the reference at [35] of the Tribunal decision where the Tribunal said:
The visa applicant arrived in Australia 3 years ago, however, no independent evidence has been provided that they have lived together or maintained their relationship for the duration of her residence in Australia.
And later at [35] the Tribunal said:
There is little independent evidence that the relationship has continued for the duration of the visa applicant's stay in Australia or continues today.
12 The Federal Magistrate apparently regarded some of the use of language by the Tribunal as 'unfortunate'. However, it is clear from the decision of the Tribunal that the Tribunal understood that it was required to view the facts as at the date of the decision and that it needed to determine whether the relationship was, as at that date, continuing and was genuine. So much can be seen from that part of [8] extracted at [5] of these reasons, and indeed from a number of the paragraphs referred to above. Perhaps the high point of the appellant's case is the reference in [35] to the passage concerning the duration of the appellant's residence in Australia.
13 These and other similar references must be seen against the task that the Tribunal was performing. It was perfectly legitimate for the Tribunal to take account of the evidence presented to it by the appellant of the nature of the relationship preceding the date of decision in order to come to a conclusion about the genuineness and even the continuance of the relationship. The passages do not demonstrate the adoption of a wrong test by the Tribunal. Rather, the Tribunal made an assessment of the relationship prior to the date of decision in order to inform the decision concerning the relationship as at that date.
14 The second ground of appeal asserted that the Federal Magistrate erred in deciding that the Tribunal did not apply the wrong test in determining whether the appellant fulfilled the criteria for the grant of the visa. Mr Morfuni explained that this ground related to the application of Reg 1.15A(5). The appellant argued that the regulation created a statutory presumption in favour of the existence of a spousal relationship, unless there is evidence to the contrary, where cohabitation of six months was shown.
15 It can hardly be said that the learned Federal Magistrate erred in relation to this argument, because the argument was not raised before him. Consequently, the appellant sought leave to raise the argument for the first time on appeal. Leave will be given in circumstances where it is in the interests of justice for an argument to be raised for the first time at the appellate stage. One of the relevant factors in determining whether such leave will be granted is whether there is a reasonable prospect of success on the argument: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[25].
16 In my view, there is no such prospect for success on this ground, and leave should be refused. The Tribunal appreciated that Reg 1.15A(5) existed and understood how it should be applied. When considering whether there was a mutual commitment to a shared life as husband and wife, the Tribunal said at [35]:
While the evidence suggests that the nominator is currently residing at Jocelyn St, Lalor, the Tribunal considers the information provided and the explanations given do not support the fact that there is a genuine married relationship and long-term commitment to a married relationship between the parties, although the Tribunal acknowledges that sub-regulation 1.15(A)(5) provides that living together at the same address for 6 months or longer is to be taken to be strong evidence that a relationship is genuine and continuing.
17 It is obvious from this passage that the Tribunal took into account the operation of the Reg 1.15A(5), but regarded the strong evidence of cohabitation as being outweighed by the other evidence that had been led by the appellant, and that had been evaluated by the Tribunal.
18 Mr Morfuni contended in oral argument on the appeal, however, that the analysis of that other evidence had been inadequate and that the Tribunal merely paid lip-service to the regulation.
19 He submitted very persuasively that the relationship which was presented to the Tribunal was of a loving couple who not only shared a business relationship but also a social and family relationship. That approach, however, involves a quarrel with the Tribunal's fact-finding exercise. It was for the Tribunal to determine the weight to be given to the evidence which had been led before it. The Tribunal did not regard that evidence as strong enough to establish the necessary relationship. The Tribunal was entitled to come to that view, even if it was a view which might not be shared by another decision-maker. Consequently, this proposed ground of appeal is bound to fail, and leave to raise it for the first time on appeal is refused.
20 Ground three of the notice of appeal contended that the Tribunal failed to assess the evidence cumulatively, but rather had looked at each individual mandatory consideration separately. In the course of the oral hearing Mr Morfuni indicated that this ground was not pursued. He was correct to take that course.
21 Ground four of the notice of the appeal stated:
The Learned Federal Magistrate erred in deciding that the Migration Review Tribunal had complied with the requirements of section 359(A) of the Act.
22 Whilst this ground was pursued, it was not pursued with much vigour, and understandably so. Section 359(A) provides:
Subject to sub-section (2), the Tribunal must:
(a) give to the applicant, in the way the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; […]
It is unnecessary to set out any further part of the section. It was submitted that the Tribunal did not comply with s359(A) because it failed to provide the appellant with a copy of a minute from a case officer to the presiding member. This document attached a first draft of a proposed decision in the case, and certain advice about whether pursuant to s359A the appellant should be invited to comment on certain matters.
23 Mr Morfuni argued that the draft decision from the case officer amounted to a view concerning the credit of the appellant and that the case officer's view of the appellant's credit was information within the meaning of s 359(A). Consequently, s359A required that information to be conveyed to the appellant. Mr Morfuni rightly conceded his difficulty in arguing that a document of this nature amounts to information at all: Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087; (2001) 113 FCR 456. But even if the minute and the draft decision amounted to information within the meaning of s 359A, that information was not the reason or part of the reason for affirming the decision under review, and hence the operation of the section was not attracted. If, as Mr Morfuni submitted, the Tribunal relied upon an adverse credit finding to affirm the decision under review, the draft decision of the case officer did not itself go to the question. It did not constitute evidence relating to the credit of the appellant, but rather was a commentary on that issue. I doubt that the approach of either the case officer or the Tribunal can be described as having rejected the appellant's case on the grounds of an adverse credit finding, but even if it were so, the draft decision is not evidence on that issue. At the highest, it is information about the view of the Tribunal member concerning the question of credit. But that way it is clear that the Tribunal did not rely on the case officer's view as a reason for affirming, or part of the reason for affirming, the decision under review. It was completely immaterial, on the face of the Tribunal's decision, what view the case officer formed about the credit or the case of the appellant.
24 The final ground of appeal alleged that:
The Learned Federal Magistrate erred in deciding that the Migration Review Tribunal had not breached the rules of procedural fairness in relation to the hearing on 18 August 2003.
25 There were a number of strands to this part of the argument. It was argued that the Tribunal had come to a view that the relationship between the appellant and her husband was in essence a business relationship and not a marital relationship. Mr Morfuni argued that, having come to that preliminary view, the Tribunal was obliged to explain to the appellant that this was the view which it had formed. It was a denial of procedural fairness to withhold such an explanation.
26 Mr Morfuni put the argument slightly differently by arguing that to fail to disclose this characterisation of the case to the appellant, the Tribunal misled her into a false sense of security and prevented her providing an answer to that view of the case.
27 Then again, Mr Morfuni contended that when the Tribunal raised, in the s 359A letter, the question of the place of residence of the husband by reference to an address on his driver's licence, the Tribunal misled the appellant into thinking that this was the only issue which stood in the way of her success in the application.
28 And finally, Mr Morfuni argued that the Tribunal never raised with the appellant the problem, as he put it, with her credit. There are a number of answers to these propositions. The Tribunal is not obliged to disclose to the claimant its subjective mental process: Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. Neither was the Tribunal obliged to make a case for the appellant.
29 The appellant was given a full opportunity at the hearing to explain the circumstances of her relationship. She was asked open-ended questions on a whole variety of issues going to the relationship. She was asked about the financial aspects of her relationship, and about the social aspects. It was for the appellant to present the evidence necessary to satisfy the regulations. It was not necessary for the Tribunal to forecast its view on the evidence prior to judgment being given. Whilst the transcript of the proceeding before the Tribunal shows that the Tribunal did not indicate any preliminary views it might have about the evidence, there was no unfairness or procedural irregularity in the way the hearing was conducted.
30 Finally, Mr Morfuni raised an allegation of ostensible bias. This argument was put on the basis that the failure to accept the evidence of the appellant or to draw inferences favourable to the appellant indicated that the Tribunal approached the case with a closed mind.
31 Mr Morfuni relied on the case of Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228, (2001) 60 ALD 145. In that case, an adverse finding of credit was said to infect the whole of the assessment of the remaining evidence in the case. This is a very different situation. Indeed the basis upon which this application failed before the Tribunal was not by reason of a rejection of evidence given by the appellant and her witnesses, but rather by the characterisation of that evidence. The evidence was accepted, but did not prove the type of relationship contemplated by the regulations. The decision itself demonstrates a weighing of the evidence in a case which was made difficult for the Tribunal by the paucity of the material put before the Tribunal. The Tribunal comments on this. For instance, in relation to the nature of the relationship, evidence was led by way of statutory declaration from a cousin of the husband. This was in such brief and unelaborated terms, and was several years out of date at the time of the hearing, that it is not surprising that the Tribunal found itself without sufficient evidence to establish the relationship.
32 One is, however, left with a sense that the result of the Tribunal hearing may well have been caused by a failure to provide evidence which might have been available, rather than from the fact that such evidence did not exist. However, the factual analysis of the case is a matter for the Tribunal. It is not for the Court to interfere in that function. In relation to the matters upon which I am able to rule upon the Tribunal did not commit any jurisdictional error.
33 I therefore agree with the Federal Magistrate that the challenge to the Tribunal's decision cannot be maintained, and as a result the appeal must be dismissed with costs.
I certify that the preceding thirty-five (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North J.