Migration appeal dismissed by Perry J, 2nd Apr

Original Word Document (102.5 KB) Federal Court of Australia

Dao v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 378

| Appeal from: | Dao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 605 |
| | |
| File number: | NSD 713 of 2022 |
| | |
| Judgment of: | PERRY J |
| | |
| Date of judgment: | 2 April 2026 |
| | |
| Catchwords: | MIGRATION – whether primary judge erred in finding that Tribunal overlooked adverse material in letter from appellant’s sponsor – whether primary judge erred in finding that the breach of s 362A of the Migration Act 1958 (Cth) did not have any material effect on the decision under review – whether primary judge ought to have found that the Tribunal had regard to the letter from the sponsor – where failure by the Tribunal to disclose letter to appellant was not material – appeal dismissed |
| | |
| Legislation: | Migration Act 1958 (Cth), ss 101, 107, 109, 362A

Privacy Act 1988 (Cth), Sch 1 |
| | |
| Cases cited: | LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591

Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 269 FCR 536

Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 |
| | |
| Division: | General Division |
| | |
| Registry: | New South Wales |
| | |
| Number of paragraphs: | 45 |
| | |
| Date of hearing: | 23 March 2026 |
| | |
| Counsel for the Appellant: | Ms I Kallinosis |
| | |
| Solicitor for the Appellant: | JLE Lawyers |
| | |
| Counsel for the First Respondent: | Mr T Reilly |
| | |
| Solicitor for the First Respondent: | HWLE Lawyers |
ORDERS

| | | NSD 713 of 2022 |
| | | |
| BETWEEN: | DUY BAO DAO

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | PERRY J |
| DATE OF ORDER: | 2 Apri L 2026 |
THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the first respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

| 1 INTRODUCTION | [1] |
| 2 BACKGROUND | [5] |
| 2.1 Appellant’s visa application | [5] |
| 2.2 The Delegate’s decision | [7] |
| 2.3 The Tribunal’s decision | [13] |
| 2.4 Primary Judgment | [19] |
| 3 GROUNDS 1 AND 2 | [25] |
| 3.1 The issue | [25] |
| 3.2 Legal principles | [26] |
| 3.3 Determination | [32] |
| 4 CONCLUSION | [45] |
1. INTRODUCTION

1 The appellant is a citizen of Vietnam who arrived in Australia in 2009 as the holder of a student visa. The appellant appeals against a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) dismissing his application for judicial review of a decision of the (then) Administrative Appeals Tribunal.

2 By its decision (the Tribunal’s decision or TD), the Tribunal affirmed the decision made by a delegate of the Minister to cancel the appellant’s Subclass 801 (Spouse) visa under s 109 of the Migration Act 1958 (Cth) because the appellant had provided false information in his visa application that he had not previously been married and did not have a child at the time of his application for visa and, in all of the circumstances, the grounds for cancelling the visa outweigh the reasons not to cancel the visa.

3 The appellant’s appeal to the Circuit Court was dismissed: Dao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 605 (primary judgment or PJ). The appellant appeals from the primary judgment on two grounds (having advised that he did not wish to press ground 3 of his notice of appeal):

(1) The primary judge erred in finding at PJ [51]-[52] that the Tribunal overlooked the “ additional adverse material ” contained in the letter from the appellant’s sponsor dated 24 February 2014 and that the breach of s 362A of the Migration Act did not have any material effect on the decision under review (ground 1).

(2) The primary judge ought to have found that the Tribunal more likely than not had regard to the letter and the breach of s 362A of the Migration Act was material (ground 2).

4 For the reasons set out below, the appeal should be dismissed.

1. BACKGROUND

2.1 Appellant’s visa application

5 The appellant is a citizen of Vietnam who arrived in Australia in 2009 as the holder of a student visa. On 24 September 2012, the appellant was granted a Subclass 820 Partner (Temporary) visa. This visa was sponsored by an Australian citizen to whom the appellant claimed to be married (Sponsor). On 17 September 2013, the appellant was granted a Subclass 801 (Spouse) visa.

6 During the application process, the appellant provided information that he had never been married or in a de facto relationship, he was not legally married to another person and he had no children. He also provided a marriage certificate showing that he married the Sponsor on 11 October 2010.

2.2 The Delegate’s decision

7 On 24 February 2014, the Sponsor sent a 48-page hand-written letter to the Department (the Sponsor’s Letter). Among other things, the Sponsor’s Letter contains allegations regarding the appellant’s alleged prolonged mistreatment of the Sponsor and allegations that the appellant used her to obtain permanent residence in Australia.

8 On 21 March 2018, the appellant was issued a Notice of Intention to Consider Cancellation under s 109 of the Migration Act. The Notice of Intention relevantly stated:

• The Department conducted further checks and the Vietnamese authorities confirmed that you are married to a person other than your sponsor and that this marriage took place on 9 October 2005 at People’s Committee of Cu Bi Hamlet, Chau Duc District, Ba Ria – Vung Tau province, Vietnam. The Department has also received information that you have a daughter from this marriage who was born on [redacted].

• The Department received information that you and your wife in Vietnam are not divorced and remain married.

• The Department received information, which suggests that you obtained a fraudulent single status certificate for your Partner (820/801) visa application and you will be sponsoring your real wife to Australia possibly 12 months after your separation with your sponsor, as you need to arrange a divorce from your sponsor.

9 The Notice of Intention also provided the appellant an opportunity to respond within 14 days.

10 On 29 March 2018, the appellant’s representative responded to the Notice of Intention, enclosing a number of forms and supporting documents including a statutory declaration made by the appellant, also dated 29 March 2018. In that statutory declaration, the appellant claimed among other things that his relationship with the Sponsor was exclusive and genuine. He also stated that he had filed for a sole divorce in Vietnam in 2009 and assumed that it had been finalised, he could provide a divorce certificate if afforded an extension of time of 8 weeks, and he had formally separated from the Sponsor following the breakdown in their relationship in December 2013.

11 On 15 May 2018, the appellant provided further evidence including a statutory declaration in which he acknowledged errors within his application for the visa. In that statutory declaration, the appellant stated that he had not filed an application for divorce regarding his wife, but rather, that he had paid a friend to do so. The appellant also stated that he was in a relationship with a non-Australian citizen (his Partner), with whom he had an Australian citizen child. The appellant expressed concern regarding the impact of his visa cancellation on his child.

12 On 20 July 2018, the Delegate cancelled the appellant’s visa pursuant to s 109 of the Migration Act (d elegate’s decision).

2.3 The Tribunal’s decision

13 The appellant appealed to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 29 May 2019. Importantly for present purposes, prior to delivering its decision, on 18 March 2019 the Tribunal refused to provide the Sponsor’s Letter, among other documents, to the appellant pursuant to Principle 6 of the Australian Privacy Principles (APP) set out in Schedule 1 of the Privacy Act 1988 (Cth).

14 The Tribunal found that the delegate had reached the necessary state of mind to engage s 107 of the Migration Act, that the Notice of Intention complied with the statutory requirements, and that there was non-compliance with s 101 of the Migration Act by the appellant in the way described in the Notice of Intention: TD [50] and [55]. Section 107 of the Migration Act provides that, if the Minister considers that a visa holder has not complied relevantly with s 101, the Minister may give the visa holder a written notice which, among other things, gives particulars of the alleged non-compliance, affords the holder an opportunity to respond, and advises that the Minister will consider cancelling the visa. Section 101 in turn provides that:

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions on it are answered; and

(b)    no incorrect answers are given or provided.

15 The Tribunal then considered whether the appellant’s visa should be cancelled pursuant to s 109(1) of the Migration Act. The Tribunal noted at TD [56] that the decision to cancel a visa in the context of s 109 is discretionary as there are no mandatory cancellation circumstances prescribed by the provision. The Tribunal stated at TD [57]-[58]:

In exercising this power, the Tribunal must consider the [appellant’s] response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. The Tribunal has considered these prescribed circumstances and other issues when considering whether to exercise the discretion to cancel the [appellant’s] visa.

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

16 The Tribunal considered a number of factors in making this assessment, including the following findings.

(1) The correct information was that the appellant was married at the time of the application and had not made any application to divorce his wife. The appellant also had a child from this marriage who he had not disclosed in the application: TD [59]

(2) The marriage certificate of the appellant and the Sponsor, which was provided by the appellant in support of his visa application, is a “ bogus document ” because the appellant falsely claimed that he was not married and was free to marry under Australian law when the true position was that he was still married to his wife in Vietnam and had not taken any legal steps to divorce her: TD [61]

(3) Although the appellant may have been assessed as meeting the criteria for the grant of a Partner visa on the basis of being in a de facto relationship with the sponsor, the fact that he did not provide the correct information prevented the Department from carrying out further investigations to properly assess the application on the claims made by the appellant and the Sponsor in support of that application: TD [67]

(4) The Tribunal was satisfied that the appellant had deliberately provided false information to the Department in support of his visa so as to avoid providing information that could have led the Department to conduct further investigations into the genuineness of his relationship with the Sponsor: TD [80]

(5) The appellant has a child who lives in Vietnam with his wife. While it is claimed that the appellant is now providing support to the child, there is little independent or credible information which indicates the appellant has provided the child with any emotional or financial support since he left Vietnam in 2009: TD [91]

(6) The Tribunal accepted that the appellant wishes to remain in Australia and has attempted to establish ties in Australia: TD [92]

(7) The Tribunal did not place any weight in favour of the appellant in relation to the admissions made by him about providing false information given that these admissions were made only after incontrovertible evidence was put before him and he continued to provide incorrect information as to steps he had taken to divorce his wife in Vietnam: TD [95]

(8) The Tribunal placed some weight in favour of the appellant on his contribution to the community by way of his involvement with the Buddhist temple at Bankstown. However, it found that the contribution appears minimal and to be aimed at advancing the appellant’s own social interests rather than providing any long-lasting benefit to the community: TD [99]-[100]

(9) The Tribunal placed some weight on the consideration that if the appellant, the appellant’s Partner and their child were allowed to remain in Australia they may face greater opportunities than if they were required to return to Vietnam: TD [108]

(10) The fact that the appellant did not refer to his relationship with his Partner until after his Partner’s own visa application was refused indicates that the appellant has been complicit with his Partner in providing false and misleading information to the Department in support of her application, which must be given weight when considering whether to exercise the discretion not to cancel the appellant’s visa: TD [120].

17 However, while the Tribunal considered that the appellant’s credibility is “ questionable ” in light of the false information given by him about the steps he took to divorce his wife in Vietnam, the Tribunal expressly declined to make any assessment as to whether he was in a genuine relationship with the Sponsor until December 2013: TD [81]. As such, this was not a matter taken into account by the Tribunal.

18 The Tribunal found at TD [121] to [124]:

[121]    The Tribunal has considered all the circumstances of the [appellant] and his family both individually and cumulatively. The most significant reason for not cancelling the [appellant’s] visa is how the cancellation of the visa would affect his daughter…. [The appellant’s child] is an Australian citizen based on an application brought by her parents even though at the time she was officially confirmed as an Australian citizen the Department had cancelled the [appellant’s] Partner visa and both he and [his Partner] only held Bridging visas. As set out above, the Tribunal finds that if the [appellant’s] visa is cancelled it is likely that the [appellant], [his Partner] and [their child] will all return to Vietnam to live together. The Tribunal acknowledges that the opportunities that are available to [the child] in Vietnam are likely to be less than the opportunities and advantages she would have if living in Australia.

[122]    Against this, however, is the deliberate and intentional action by the [appellant] to provide false and misleading information to the Department. The Tribunal finds that the [appellant] was complicit in [his Partner’s] providing false and misleading information in respect of her Partner visa application. The Tribunal finds that both the [appellant] and [his Partner] have arranged for their friends to provide false and misleading information to the Department. The fact that the [appellant] has repeatedly provided false and misleading information in respect of his relationship with his wife in Vietnam, his attempts to obtain a divorce from his wife in Vietnam, his relationship with his sponsor and [his Partner’s] relationship with Mr Vuong must be given considerable weight when considering whether the [appellant’s] visa should be cancelled.

[123]    Having considered all the information before the Tribunal as set out above, the Tribunal finds the grounds for cancelling the visa outweigh the reasons not to cancel the visa.

[124]    The Tribunal has decided that there was non-compliance by the [appellant] in the way described in the notice given under s. 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

2.4 Primary Judgment

19 The appellant applied to the Circuit Court for judicial review of the Tribunal’s decision, raising three grounds of review:

(1) Ground 1: the Tribunal made an unstated assumption, without evidence, that the appellant’s and his Partner’s child had an existing legal right to enter and reside in Vietnam.

(2) Ground 2: the Tribunal’s findings were made in breach of the appellant’s entitlement under s 362A of the Migration Act to access written material given or produced to the Tribunal for the purposes of the review, being the Sponsor’s Letter.

(3) Ground 3: the Tribunal breached s 359A of the Migration Act by failing to give evidence from Dr Lowie and an invitation to comment to the appellant.

20 The Circuit Court dismissed the application on 3 August 2022.

21 The appeal challenges only the primary judge’s decision in rejecting ground 2. Her Honour’s reasons for so holding can be summarised as follows.

22 First, given the decision in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525, the Minister correctly accepted before the primary judge (and on the appeal) that the Tribunal erred in refusing to grant the appellant access to the Sponsor’s Letter relying on APP 6 in Schedule 1 to the Privacy Act.

23 Secondly, the primary judge held at PJ [42] that the Sponsor’s Letter:

…was potentially quite prejudicial to the [appellant]. It was not disclosed to him. If I was persuaded that the letter had any material affect [sic] upon the Tribunal’s decision, I would have little difficulty in finding that this resulted in jurisdictional error. This is in circumstances where the [appellant] had no opportunity to attempt to negate any adverse effect from the letter.

24 Thirdly, however, the primary judge held at PJ [51] that “ the most likely inference is that the Tribunal member overlooked the additional adverse material contained within the letter ” given, among other things, the “ complete lack ” of any reference to the letter within the Tribunal’s decision. As a consequence, the primary judge was unable to be satisfied on the evidence that the failure to disclose the Sponsor’s Letter had any material effect upon the decision under review: PJ [52]. No jurisdictional error was therefore established.

1. GROUNDS 1 AND 2

3.1 The issue

25 As mentioned above, the Minister rightly accepted at trial and on the appeal that the Tribunal had breached s 362A of the Migration Act in refusing to provide the Sponsor’s Letter to the appellant pursuant to APP 6. Grounds 1 and 2 of the notice of appeal challenge the primary judge’s finding that the Tribunal’s breach of s 362A was not material on the ground that her Honour wrongly inferred that the Sponsor’s Letter was not taken into account by the Tribunal. It follows that this is the only issue on the appeal.

3.2 Legal principles

26 The applicable legal principles were not in issue and can be shortly summarised.

27 First, in order to sound in jurisdictional error, the breach must be material. Save where the nature of the error is such that it necessarily satisfies the requirement of materiality, the onus lies upon an applicant to establish that the alleged breach was material to the impugned decision on the basis of inferences drawn from the evidence: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [41] and 46; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2]-3; Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at 32(5); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6] and 13. In this regard, the plurality in LPDT held at [14]–[16] that:

The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(Emphasis in the original.)

28 Secondly, at the time of the Tribunal’s decision, s 430(1)(c) of the Migration Act imposed an obligation on the Tribunal only to set out “ the findings on any material questions of fact ”. Thus, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], Gleeson CJ explained that:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.

(Emphasis added; see also Yusuf at 69)

29 Conversely, Gleeson CJ held at [10] that “ [b]y setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. ” It follows that the mere failure to make a finding on a particular issue does not necessarily mean that the Tribunal overlooked the issue or misunderstood the nature of the task which it was required to undertake.

30 In the third place, the inference that the Tribunal has not mentioned a matter because it did not regard it as material may be displaced by other considerations. As Perram J explained in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at 19:

The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.

31 Finally, reasons must be read understanding that they record the decision-maker’s subjective reasoning processes and therefore what the decision-maker considered to be material, i.e., relevant and afforded some weight. As the five-member Full Court held in Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 269 FCR 536 at [103]:

… the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker… It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality… It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:

76    The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that [has] not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

(Italic emphasis in the original; bold emphasis added.)

3.3 Determination

32 First, the appellant submits that the primary judge erred in holding that the Tribunal overlooked the “ additional adverse material ” contained in the Sponsor’s Letter and that, therefore, the breach of s 362A of the Migration Act did not have any material effect on the Tribunal’s decision having regard to certain findings made by the Tribunal in its reasons and the contents of the Notice of Intention. Secondly, the appellant contends that, if he had been given an opportunity by the Tribunal to respond to the Sponsor’s Letter, he could have refuted the suggestion that he was not in a genuine relationship with the Sponsor until it ended in December 2013, with additional evidence and submissions as to the history of his relationship with the Sponsor, including the nature of its demise. The appellant submits that this could have led to a different characterisation by the Tribunal of the nature of his relationship with the Sponsor. Thirdly, and relatedly, the appellant submits that, by not disclosing the Sponsor’s Letter, he was denied an opportunity to put on evidence relevant to the assessment of his credibility. In turn, he submits that this could have impacted on the Tribunal’s conclusions at TD [62]-[70] as to the likely effect on the original decision to grant the visa if correct information had been provided by the appellant and as to the circumstances in which the appellant’s failure to disclose his marriage in Vietnam and the existence of the child of that marriage contrary to s 101 of the Migration Act occurred.

33 Respectfully, however, I agree with the primary judge that the appellant has failed to establish that the Tribunal’s error in not disclosing the Sponsor’s Letter contrary to s 362A of the Migration Act was a material one by reason of the Tribunal having considered the letter in reaching the Tribunal’s decision.

34 F irst, the Tribunal does not expressly refer to the Sponsor’s Letter and take it into account. In line with the principles set out above, the absence of any reference to the letter may indicate that the Tribunal did not consider the matter to be material. The question is therefore whether that inference has been displaced as the appellant contends, having regard to the considerations on which the appellant relies.

35 Secondly, at [81] of its reasons, the Tribunal observed that the credibility of the appellant’s claims to have been in a genuine relationship with his Sponsor was “ questionable ” given that he had previously given false information to the Department and the Tribunal. Nonetheless, the Tribunal then explained that it “ has not … made any assessment as to whether the [appellant] was in a genuine relationship with the sponsor until December 2013. ” As such, to the extent that the appellant contends that disclosure of the Sponsor’s Letter might have afforded him an opportunity to rebut the suggestion that he was not in a genuine relationship with his Sponsor, the breach is not material as no finding adverse to the appellant was made by the Tribunal that this relationship was not genuine.

36 Thirdly, the appellant relies upon the Tribunal’s reasons at TD [69] as a basis for inferring that the Tribunal considered the Sponsor’s Letter and did not overlook it. At TD [69], the Tribunal gave reasons for rejecting at TD [68] the appellant’s claimed reason for not disclosing to his Sponsor that he had a wife and child in Vietnam, namely, he was afraid that she may be jealous and he may have lost his relationship with his Sponsor. In rejecting that explanation, the appellant contends that the Tribunal accepted the “ underlying fact ” that the Sponsor was not aware of the appellant’s first marriage in Vietnam because he did not disclose it to her during their relationship and this, in turn, is said to be evidence that the Tribunal considered the Sponsor’s Letter which disclosed that fact. However, as the primary judge held at PJ [46], it is more likely that the Tribunal’s findings were based on its reasons at TD [69] that the Sponsor was unlikely to have been jealous of the fact that the appellant had previously been married with a child in circumstances where the Sponsor had been married on two previous occasions and had children from those marriages. While it might well be thought that this line of reasoning is not particularly compelling, it does not reach (and was not alleged to reach) the standard required to establish legal unreasonableness. Furthermore, and in any event, the information that the appellant had not disclosed (being his prior marriage and child to his Sponsor) was information given by the appellant to the Tribunal. It was not simply evidence contained in the Sponsor’s Letter. As such, these aspects of the Tribunal’s reasons do not provide a basis for inferring on the balance of probabilities that the Tribunal had taken the Sponsor’s Letter into account.

37 Fourthly, the appellant submitted that the Notice of Intention appeared to have been premised on adverse information sourced from the Sponsor’s Letter from which it could be inferred that the Sponsor’s Letter was considered by the Tribunal. In particular, the appellant relies on the statements in the Notice of Intention that:

(1) “ The Department received information that you and your wife in Vietnam are not divorced and remain married ”; and

(2) “ The Department received information, which suggests that you obtained a fraudulent single status certificate for your Partner (820/801) visa application and you will be sponsoring your real wife to Australia possibly 12 months after your separation with your sponsor, as you need to arrange a divorce from your sponsor ”.

38 However, as the Minister submits, the Notice of Intention was not authored by the Tribunal member who made the Tribunal’s decision and so does not afford a basis for inferring that the Tribunal member considered the Sponsor’s Letter in making that decision. Furthermore, as the primary judge found, the adverse information in the Notice of Intention was disclosed to the appellant who, therefore, had an opportunity to respond to it. The appellant’s submission that the information provided was not sufficient for the appellant to respond to it was not, with respect, expanded upon in the appellant’s submissions and is not self-evidently correct.

39 Fifthly, the appellant submits that the letter from the Tribunal to the appellant dated 18 March 2019 (the March 2019 letter) refusing to disclose the Sponsor’s Letter among other documents indicates that some regard was had to the Sponsor’s Letter by the Tribunal member in making the Tribunal’s decision. However, I agree with the primary judge that this is not a basis on which an inference could be drawn that the Sponsor’s Letter was taken into account by the Tribunal in making that decision. This is because, as the primary judge held at PJ [48], the author of the March 2019 letter was not the Tribunal member who made the Tribunal’s decision and the letter did not refer to the claims made in the Sponsor’s Letter in any detail. Nor, contrary to the appellant’s submission, can it suffice to rely upon the mere fact that the March 2019 letter was in the Tribunal’s possession to establish that the Tribunal took the letter into account in making the Tribunal’s decision.

40 In the sixth place, the appellant contends that, prior to 18 March 2019, the Tribunal member had been actively considering material which had not been disclosed to the appellant. The appellant submits that at the Tribunal hearing on 13 March 2019, the Tribunal questioned the appellant and his Partner about information provided by third parties to both the appellant’s case and his Partner’s visa application. The appellant also refers to the following exchange between the Tribunal member and the appellant’s legal representative at the Tribunal hearing:

Tribunal member:     So, you asked for it on 8 th March and you are complaining that the tribunal hasn’t provided it to you yet, and I think the tribunal has sent you a copy of the tribunal’s file already.

Assistant Lawyer:     No, we don’t have that document though.

Tribunal Member:    No, you don’t.

Assistant Lawyer:    Well that should have been provided under section 362A.

Tribunal Member:    I have only just got this file from another document and I am putting it to your client. But you are after a postponement or an adjournment.

Assistant Lawyer:    Well we can have the matter stood down for a few minutes while I speak to my client. It may be that we seek an adjournment, but I am instructing him not to answer that questions now.

Tribunal Member:     There are more documents.

Assistant Lawyer:     Well can I have all the documents then.

Tribunal Member:    I’ll put it to, I’ll do a formal 395A letter, and I will put all the information to them.

41 In the appellant’s submission, the above exchange demonstrates that the Tribunal had access to, and viewed, material that was not disclosed to the appellant, but was later held, as conceded by the Minister, to be material that ought to have been disclosed pursuant to s 362A of the Migration Act. The appellant also contends that the Tribunal member’s reference to there being “ more documents ” cannot be interpreted as excluding the Sponsor’s Letter. However, I agree with the Minister’s submission that the Tribunal member’s reference to there being “ more documents ” cannot by itself indicate that the Tribunal subsequently took the Sponsor’s Letter into account in making the Tribunal’s decision.

42 Finally, the appellant relied on the very serious nature of the allegations against the appellant in the Sponsor’s Letter to submit that it was not a letter which would have been ignored or disregarded but was critical evidence relevant to the consideration of the genuineness of the appellant’s relationship with the Sponsor. At PJ [49], the primary judge expressed the view that there was some force in this submission and found that “ [i ]f the details contained in the letter were readily apparent, I might have been more favourably disposed to this submission. ” However, the primary judge held at PJ [50] that:

…this does not reflect the nature of the document. The [Sponsor’s] letter is 48 pages of handwritten material containing limited punctuation. It is not immediately apparent when one begins reading it that the letter contains adverse content at all. The initial pages (and some subsequent ones) make the letter appear as if it may be a letter echoing the [appellant’s] claims regarding the genuineness of his relationship with the Sponsor. The Minister’s written submissions initially mistook the letter for such a document, having been mislead by those earlier pages.

43 The appellant submits, however, that the adverse nature of the letter is unequivocal. In his submission, the adverse quality of the letter becomes apparent from page seven where the Sponsor recounts her questioning the appellant as to why, during a trip to Vietnam in 2012, he stayed at a hotel and not with his mother. The fact that the Minister may have initially mistaken the letter as being supportive of the appellant is, in the appellant’s submission, not a proper basis to infer that the Tribunal may have overlooked it. The appellant argues that by that reasoning the Tribunal, by continuing to read the letter as it may be inferred the Minister did, would have understood the true nature of its contents and considered the adverse information contained therein. The appellant also argues that, having regard to the information on the first page of the letter, one would expect the Tribunal to persevere to at least page seven of the letter, particularly considering the gravity of the consequences of the decision being made.

44 However, I agree with the Minister that, in circumstances where the letter contains serious allegations against the appellant, the Tribunal’s lack of reference to the letter simply underlines that it was not taken into account by the Tribunal. Furthermore, as the Minister submits, while the allegations in the Sponsor’s Letter were serious, they were not obviously cogent and need to be understood in their context. As to the latter, by the time that the matter was before the Tribunal, the appellant was divorced from the Sponsor and in a relationship with, and had a child by, a third person.

1. CONCLUSION

45 It follows for these reasons that I do not consider that the factors on which the appellant relied are sufficient, either individually or cumulatively, to displace the inference that the Tribunal did not refer to the Sponsor’s Letter in its reasons because it did not consider the letter to be material to the Tribunal’s decision. As a result, the appellant has failed to establish that the error made by the Tribunal in not disclosing the Sponsor’s Letter to the appellant and affording him an opportunity to respond to it was material. As a result, no error has been shown in the primary judge’s decision, and the appeal must be dismissed. As the Minister has successfully defended the appeal, the appellant should pay the Minister’s costs of the appeal in accordance with the ordinary rule as to costs.

| I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
Associate:

Dated: 2 April 2026

Top