Diep v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 1145
•21 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Diep v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1145
File number(s): PEG 281 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 21 July 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – where the Tribunal was not satisfied that the applicant was the spouse of the sponsor – whether the Tribunal failed to consider each of the mandatory considerations in reg 1.15A of the Migration Regulations 1994 (Cth) – whether the Tribunal overlooked evidence led in support of the applicant’s claims and failed to make findings about relevant matters – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 5F(2), 5F(3)
Migration Regulations 1994 (Cth) regs 1.15A, 1.15A(3), 1.15A(3)(b)(iii), 1.15A(3)(c)
Cases cited: Applicant WAEEv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Campos v Minister for Immigration and Border Protection [2019] FCA 1791
He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206
Kuburoski v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 92
Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Vuong v Minister for Home Affairs [2019] FCCA 827; 345 FLR 130
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 30 January 2025 Place: Heard in Perth, delivered in Darwin Counsel for the Applicant: Mr Honnery Solicitor for the Applicant: Migration Law Firm Counsel for the First Respondent: Mr Lettenmaier Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 281 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUU CHAU DIEP
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
21 JULY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 3 July 2024.
2.A writ of mandamus issue, directed to the Administrative Appeals Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Vietnam. She first travelled to Australia in 2007 on a tourist visa. She returned in 2015 on a visitor visa. She visited Australia again in May 2018.
On 3 June 2018, the applicant married Mr To Ha Lieu, an Australian citizen. Mr Lieu was married to the applicant’s sister between 16 April 1984 and 29 December 2017. They have two adult children.
On 28 July 2018, the applicant applied for a partner (temporary) (class UK) (subclass 820) visa. On 14 January 2020, the delegate refused to grant the applicant the visa.
On 31 January 2020, the applicant applied to review the delegate’s decision in the Administrative Appeals Tribunal. On 5 June 2024, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lieu.
On 3 July 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal was not satisfied that the applicant was the spouse of Mr Lieu were for the purposes of s 5F(3) of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).
The issue in the Application[1] is whether the Tribunal considered all of the circumstances of the applicant’s relationship with Mr Lieu as required by s 5F(3) of the Act and reg 1.15A of the Migration Regulations 1994 (Cth).
[1] Filed on 1 August 2024 and amended on 6 January 2025.
The amended application asserts that the Tribunal erred in 2 central respects in affirming the delegate’s decision not to grant the applicant the partner visa, which can be summarised as follows:
(a)That the Tribunal failed to consider and make findings about the evidence of the applicant and Mr Lieu’s volunteering, attendance at the Sydney Children’s Hospital Gala Foundation and donation of $1,000; and
(b)That the Tribunal failed to make a finding in respect of the sharing of the responsibility for housework between the applicant and Mr Lieu.
In Kuburoski v Minister for Immigration, Citizenship and Multicultural Affairs,[2] Judge Ladhams set out the legal principles that apply to the determination of the issue as follows:
[2] [2024] FedCFamC2G 92 at [25] – [31].
In reaching its decision, the Tribunal was required to consider whether the applicant was the spouse or de facto partner of the sponsor at the time of the visa application and at the time of the Tribunal decision: see cll 820.211(2)(a) and 820.221 in Schedule 2 to the Regulations.
The term ‘spouse’ is defined in s 5F of the Migration Act, which provides:
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
In considering whether the requirements of s 5F(2)(a)-(d) are met, the Tribunal was required to ‘consider all the circumstances of the relationship, including the matters set out in [subreg 1.15A(3)]’: see reg 1.15A(1) and (2) of the Regulations. Subregulation 1.15A(3) provides:
The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b)the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii)the living arrangements of the persons; and
(iii)any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long term one.
The Full Court of the Federal Court (Siopis, Kerr and Rangiah JJ) considered the Tribunal’s obligation to consider the matters referred to in reg 1.15A in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 (He). The Court held that the Minister (and, it follows, the Tribunal on review) is required to consider each of the four principle matters in reg 1.15A(3)(a)-(d), each of the 15 specific matters identified by roman numerals, and any other relevant circumstances of the relationship: He at [50].
The Court considered the requirement to ‘consider’ these matters at [76]-[77] and held:
76.In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal….
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau [v Minister for Immigration and Border Protection (2014) 219 FCR 504] at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
77.So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a) to (d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
In assessing whether the Tribunal ‘considered’ all relevant matters specified by reg 1.15A(3), I also take into account further principles identified in He (see also, Campos v Minister for Immigration and Border Protection [2019] FCA 1791 (Campos) at [35], [37]), including that:
(a)the Tribunal’s reasons did not need to be structured in a manner that formulaically addressed each of the relevant matters in turn: He at [82];
(b)the Tribunal was not required to refer to or make findings upon every piece of evidence, and was rather required to make findings about the matters prescribed by reg 1.15A(3): He at [83]; and
(c)the findings of the Tribunal may be inferred rather than express: He at [85].
In some cases, where the Tribunal’s decision ‘record indicates no rejection of the evidence advanced by a party, it is reasonable to infer that such material has been accepted’: Campos at [41].
There is no dispute about the application of the principles set out in Kuburoski.
The Minister also concedes that in the event either ground is made out, the error would be material and establish jurisdictional error.
GROUND 1 - DID THE TRIBUNAL OVERLOOK EVIDENCE AND/OR FAIL TO HAVE REGARD TO AND MAKE FINDINGS ABOUT MATTERS SET OUT IN REGULATION 1.15A(3)?
Did the Tribunal make an error?
Reg 1.15A(3)(c) provides:
The matters for subregulation (2) are:
…
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
…
In her statutory declaration dated 11 June 2023, the applicant relevantly said:
The Social aspects of the relationship
…
In addition, we both provide ongoing support not only to the young kids of our community, but also try to participate in various volunteering charity service programs. This includes volunteering for the Vinnies’ homelessness services, by helping the homeless gain access to emergency food and accommodation. We hope to make a positive real difference in the lives of others. Recently, my husband and I attended a fundraising event to support the Oncology Research at the Children’s Hospital at Westmead - an appreciation letter dated 09/05/2023 received from the Sydney Children’s Hospitals Foundation is enclosed.
Further, in his statutory declaration dated 11 June 2023, Mr Lieu relevantly said:
The Social aspects of the relationship
…
Chau and I both actively support the local community by encouraging all teenagers to be well-respected and valuable members. We also provide ongoing support to the Oncology Research at the Children’s Hospital at Westmead by making donations. We often attend many fundraising events, including a recent fundraising event that supported the Westmead Children Hospital - please refer to an appreciation letter of 09/05/2023 with a donation receipt of 11/05/2023 provided by Sydney Children’s Hospitals Foundation.
The statements made in the statutory declarations of the applicant and Mr Lieu were supplemented by a letter sent to them from the Sydney Children’s Hospital Foundation dated 9 May 2023, and a donation receipt dated 11 May 2023 in the sum of $1,000.00.
The applicant contends that the evidence of volunteering, attending the Sydney Children’s Hospital Gala Foundation and donation was relevant to the circumstances of the relationship set out in reg 1.15A(c)(i) and (iii).
It is not in dispute that the Tribunal did not make any express findings about these matters, or that the Tribunal was required to have regard to the evidence. The Minister submits that the nature of the material did not compel express findings, and it should be inferred from the decision record that the Tribunal considered and accepted the evidence.
In Vuong v Minister for Home Affairs,[3] Judge A Kelly said:
[54]Having regard to the imperative language of reg 1.15A(2), a failure to consider each of the principal and specific matters in reg 1.15A(3) would constitute error which may be characterised as jurisdictional in nature. By extension, it is necessary but not sufficient, that the decision-maker refer in broad terms to the subject matter posed by reg 1.15A(a)-(d) unless findings of fact are made, to the extent necessary, upon each of those principal subjects and each of the specific matters prescribed by reg 1.15A(3). The absence of any reference to evidence relevant to such matters may indicate that it was not taken into account.
…
[56] I also accept the applicant’s submission that a Tribunal’s consideration of the mandatory considerations prescribed by reg 1.15A need to be evaluated in the broader context of the discharge of its task of review, which requires it to form for itself, on the material before it, the requisite state of satisfaction under s 65 whether the criteria for the grant or refusal of a Partner visa have been satisfied. I further accept that this requires a consciousness of the submissions, evidence and material advanced by the visa applicant.
[3] [2019] FCCA 827; 345 FLR 130 (citations omitted).
The Tribunal considered regulation 1.15A(3)(c) under a subheading of the social aspects of the relationship. In overview, the Tribunal found:
(a)The applicant and Mr Lieu were married in 2018. Mr Lieu’s children attended the wedding. The applicant’s sister did not attend the wedding because she was still upset by the relationship between the applicant and Mr Lieu. They each said it would have been embarrassing to have her there. The details of the wedding celebration and the evidence given by the parties was corroborated through photographs.
(b)That the applicant and Mr Lieu travelled together to Vietnam a number of times since they were married, and have socialised with family and friends there. The details of their travel to Vietnam were corroborated through photographs. The applicant and Mr Lieu attended a wedding in Vietnam in late-2018. They have also travelled to South Australia, Canberra, Kiama, and Nowra together since they were married. This travel was also corroborated through photographs.
(c)The Tribunal accepted that there is some social recognition of the relationship by 2 friends that provided statutory declarations, Ms Cuu Muoi Phung, and Ms Alice Kew, as well as Mr Lieu’s son, Thieu Ban Lieu.
(d)The Tribunal accepted that Mr Lieu has declared his relationship with the applicant to the Australian Taxation Office, and to a solicitor acting on his behalf in relation to real estate investments.
(e)Having earlier set out that it had regard to the statutory declarations and statements from witnesses, and found that those documents to not outweigh the other evidence before it, the Tribunal considered there to be limited evidence that the applicant and Mr Lieu represent themselves more broadly in the community as being married to each other.
The applicant contends that the appropriate inference to draw is that the Tribunal overlooked evidence relevant to reg 1.15A(3)(c)(i) and (iii) and proceeded without a consciousness and consideration of the submissions, evidence and material advanced by the applicant that was most likely going to give the Tribunal an accurate picture of her circumstances.[4]
[4] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [38].
The Minister submits that the court should be slow to infer that the Tribunal overlooked the evidence, effectively somehow missing parts of the statutory declarations, where it clearly had regard to other parts. The Tribunal is not obliged to refute, line by line, the relevant material,[5] nor is it required to expressly refer to each and every individual piece of evidence provided by an applicant, or make findings regarding each of those pieces of evidence.[6]
[5] Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
[6] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [67]–[68], [73]–[74], [77], [89] and [91].
In circumstances where the Tribunal specifically referred to and made findings about the statutory declarations, including for example to not accept the applicant’s evidence given about the social aspects of the relationship that Ms Kew’s statutory declaration contained a typographical error about the year they met, the Minister submits that the appropriate inference to be drawn is that the Tribunal considered the evidence, accepted it, and did not consider it to be of such significance that it required any express finding.
In Campos v Minister for Immigration and Border Protection,[7] observing that a check-list approach to the matters set out in the Act is not required, McKerracher J said that:
… if it is obvious that the nature and expression of findings on one matter will extend to other topics requiring consideration (which is not at all uncommon), a finding on the second or subsidiary matter may properly be inferred.
[7] [2019] FCA 1791 at [36].
Further, in Applicant WAEEv Minister for Immigration and Multicultural and Indigenous Affairs,[8] the Full Court of the Federal Court said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[8] [2003] FCAFC 184 at [47].
The Member emphasises the Tribunal’s finding:
There is limited evidence that the parties represent themselves more broadly in the community as being married to each other.[9]
[9] Tribunal Decision Record at [40].
It is submitted that although the Tribunal did not refer to or make findings about the applicant and Mr Lieu’s volunteering, attending the Sydney Children’s Hospital Gala Foundation and donation, the finding under reg 1.15A(3)(c)(i) overlaps with reg 1.15A(3)(c)(iii).
I do not accept that the Minister’s submission that the Tribunal’s comment about the evidence directed to reg 1.15A(3)(c)(i) extends to reg 1.15A(3)(c)(iii), because the Tribunal did not refer to or identify the evidence submitted by the applicant at all. In my opinion, it is not possible to infer from that portion of the Tribunal’s reasons, or the reasons more broadly, that it considered and accepted the evidence about the volunteering, attending the Sydney Children’s Hospital Gala Foundation and donation. I do not consider that the nature and expression of any of the Tribunal’s findings are such as to obviously extend to reg 1.15A(3)(c)(iii) and could thus enable a proper inference to be drawn that the Tribunal considered and made findings about those matters.
I accept the Minister’s submission that the Tribunal’s reasons clearly demonstrate that this is not a case where the evidence has “fallen off the desk”. As I have set out, regard was obviously had to the statutory declarations. However, in my opinion this does not provide a complete answer to the inference that the Tribunal failed to consider the evidence that was led in support of joint social activities. In my opinion there is nothing in the decision record that enables any inference to be drawn that the Tribunal considered the evidence and clearly accepted it or, for that matter, rejected it,[10] because the Tribunal’s reasons are not otherwise comprehensive on the issue of the evidence led in support of that criterion.
[10] Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354 at [27].
I, of course, accept as established propositions that the Tribunal’s reasons are not required to be structured formulaically, and:
the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.[11]
[11] He at [82], citing Singh v Minister for Immigration and Border Protection [2017] FCA 1298.
However, even to the extent that the applicant and Mr Lieu eating out at restaurants and socialising with friends, their travel to Vietnam and socialising with friends there and their international travel more broadly can be seen as a basis for them planning and undertaking joint social activities, in my opinion that does not absolve the Tribunal of the requirement to consider the evidence submitted in support of this criterion in volunteering, attending the Sydney Children’s Hospital Gala Foundation and donation.
The Tribunal failed to have regard to this material, which was directly relevant to the applicant’s case. The Tribunal’s reasons show that it made clear and discrete findings about whether the applicant and Mr Lieu represent themselves to other people as being married to each other, and the opinion about their friends and acquaintances about the nature of the relationship. The Tribunal set out in detail the basis upon which it considered and assessed that evidence.
It did not discretely do so for the any basis on which they plan and undertake joint social activities, and while it is not required to formulaically do so, in my view the only consideration of reg 1.15A(3)(iii) took place where there was express overlap with other criteria. When weighing up the range of possibilities that the omission to refer to the evidence gives rise to,[12] I do not consider that it is open to construe the Tribunal’s reasons in any way other than it overlooked the evidence of volunteering, attending the Sydney Children’s Hospital Gala Foundation and donation, even though that evidence was contained within statutory declarations that the Tribunal took into account.
[12] Li at [24] – [25].
In my opinion, the Tribunal fell into error because it was required to consider and make a finding about these matters advanced by the applicant in giving consideration to all of the circumstances of the relationship, however it failed to do so, expressly or implicitly.
Is the error material?
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[13] the High Court said:
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.
[13] (2024) 98 ALJR 610; [2024] HCA 12 at [14] (footnotes omitted).
In this case, the Minister has submitted that if the Court finds that either ground disclose an error, it is accepted by the Minister that it would be material to establish jurisdictional error.
In my opinion, that concession is properly made. In In LPDT, the plurality said:
[29] Having found the Tribunal so erred, the Full Court then identified other aspects of the Tribunal's reasons as bases for assuming that the Tribunal would have adopted a different process of reasoning to the same end and, on that basis, concluded that the error was not material. By way of example, the Full Court reasoned that, ‘even if the Tribunal had concluded that subparagraph (a) was entirely irrelevant and moved on’, the Full Court did not consider that there was a ‘realistic possibility’ that the Tribunal could have found the appellant's conduct to be merely ‘serious’ in considering the nature and seriousness of his conduct under paras 8.1(2)(a) and 8.1.1(1), or that the weighing exercise under para 8.1.1(1) could have had a ‘favourable outcome’ for the appellant even if the Tribunal did assess his conduct to be ‘serious’. Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.”[14]
…
[14] Emphasis added; footnotes omitted.
In my opinion, Ground 1 is made out.
GROUND 2 - DID THE TRIBUNAL FAIL TO MAKE FINDINGS IN RESPECT OF RELEVANT MATTERS, AND DID IT CONSTRUCTIVELY FAIL TO EXERCISE JURISDICTION?
Did the Tribunal make an error?
This ground focuses on regulation 1.15A(3)(b)(iii) and alleges that the Tribunal failed to make findings about the nature of the household, and in particular about any sharing of the responsibility for housework as set out in that provision.
In its reasons, the Tribunal said:
… The parties gave oral evidence that they share household chores, including cooking, cleaning and gardening.[15]
…
There was no evidence to contradict the parties’ claims regarding their shared living arrangements. Despite my concerns outlined elsewhere about the parties’ relationship, I accepted on the basis of the evidence before me that they have been living in the same household since 2018.[16]
[15] At [33].
[16] At [35].
The applicant submits that the Tribunal acknowledged the oral evidence that was given about the sharing of the responsibility for housework, but failed to evaluate or make any findings about that evidence.
Against that, the Minister has contended the inference that should be drawn is that the Tribunal made the requisite findings, and that the conclusion that there was no evidence to contradict the parties’ claims reflects that the Tribunal considered reg 1.15A(3)(b)(iii) and accepted the parties’ evidence about these matters.
I have set out in my consideration of the first ground the established propositions that the reasons of the decision-maker are to be read fairly,[17] however in my view the difficulty with the Minister’s submissions is that the finding made by the Tribunal is directly relatable to the requirement to make findings about the living arrangements for the persons, pursuant to reg 1.15A(3)(b)(ii).
[17] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.
In her statutory declaration, the applicant relevantly said:
The nature of the household
As husband and wife, my husband and I have always supported each other in our domestic responsibilities. However, as I do not work, I am responsible for all the domestic aspects of our day-to-day life. We share our housework and regularly go grocery shopping, while I cook meals for my husband and step-daughter, and do the household chores as needed.
We both look after our front and back gardening work together, and I enjoy helping my husband cut our lawn.
In his statutory declaration, Mr Lieu said:
The nature of the household
…
Most of the household chores including clearing, vacuuming, floor mopping, lawn mowing and emptying bins, would be my propriety tasks.
Daily cooking is always done by [the applicant] at home. We often cook together, especially when we have friends coming to our place for social lunches or dinners. [The applicant] sometimes helps me sweep the front and back yards after I mow the lawn.
In its reasons, the Tribunal referred to the oral evidence given by the applicant and Mr Lieu about the sharing of the responsibility for housework, however it did not make any findings about this matter.
I do not accept that the Tribunal’s reasons are capable of inferring that it accepted the evidence given by the applicant and Mr Lieu. As was set out in He, reg 1.15A(3) poses questions to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. Those questions must be answered, not merely thought about.
I consider that in this instance, having stated the oral evidence given, the Tribunal erred by failing to make the findings of fact that were necessary for it to give proper, genuine and realistic consideration to this aspect of the relationship.
Is the error material?
As has been acknowledged by the Minister, I also find that the error was material in the circumstances.
In my opinion, Ground 2 is made out.
CONCLUSION
I have found that both of the applicant’s grounds establish jurisdictional error in the Tribunal’s decision.
I will allow the judicial review application, and will issue writs of certiorari to quash the Tribunal’s decision, and mandamus to require the Tribunal to reconsider the application for review of the delegate’s decision.
I will hear the parties as to costs if required.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 21 July 2025
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