Dim v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1676
•16 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dim v Minister for Immigration and Citizenship [2025] FedCFamC2G 1676
File number(s): SYG 1492 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 16 October 2025 Catchwords: MIGRATION – Judicial review – refusal to grant a Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Tribunal failed to give proper, genuine or realistic consideration to the opinions of the friends and acquaintances of the applicant and his visa sponsor about the nature of the relationship as stipulated by r1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth) – approach to corroborative evidence in cases where the “well is poisoned beyond redemption” – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5F, 5F(2), 5F(2)(a), 359A, 476
Migration Regulations 1994 (Cth) cll 801.221, 820.211, 820.211(2)(a), 820.221 of Schedule 2, reg 1.15A, subregs 1.15A(1), 1.15A(2), 1.15A(3), r 1.15A(3)(c), r 1.15A(3)(c)(ii)
Cases cited: BFD17 v Minister for Immigration [2023] FCA 887
M1/2021 v Minister for Home Affairs [2022] 275 CLR 582
Singh v Minister for Home Affairs [2019] FCA 1790
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 15 August 2025 Place: Sydney Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Mr M Northam of Northam Lawyers Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mr M Wong of HWL Ebsworth Lawyers Second Respondent: Submitted appearance save as to costs ORDERS
SYG 1492 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STANLEY OBIDASO DIM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
16 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs and disbursements fixed in the sum of $8,371.30.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 July 2021. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (partner visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The issue that arises for consideration is whether the Tribunal failed to give proper, genuine or realistic consideration to the opinions of the friends and acquaintances of the applicant and his visa sponsor about the nature of their relationship, as stipulated by r 1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth) (Regulations), and thereby constructively failed to exercise its jurisdiction.
For the reasons set out below, I find the applicant has not demonstrated jurisdictional error.
BACKGROUND
The applicant is a male citizen of Nigeria, who first entered Australia on 15 September 2013 as the holder of a temporary student visa (Court Book (CB) 372). The applicant and Ms Nankanja Phionah Zzimula (sponsor) met at a wedding in Sydney on 30 May 2015 before becoming engaged on 3 October 2015. They had a traditional wedding on 24 October 2015 before they were married in a civil ceremony on 7 February 2016 at Quakers Hill, NSW (CB 373).
On 3 March 2016, the applicant lodged an application for a partner visa (visa application) based on his relationship with the sponsor and was granted a bridging visa A in relation to his visa application (CB 1 to 23).
Visa application
In support of his visa application, the applicant provided the delegate with evidence, which included the following four declarations from friends and acquaintances of the applicant and his sponsor:
(a)Statement from Christian Ugwumba, which was undated (CB 75).
(b)Statement from Namusisi Mary Nakirijja, which was undated (CB 91).
(c)Statutory declaration from John Chukwuemeka Okonkwo dated 29 February 2016 (CB 72 to 74).
(d)Statutory declaration from Isaac Gitta Kasirye dated 2 March 2016 (CB 69 to 71).
Delegate’s decision
On 9 August 2017, a delegate of the Minister refused to grant the applicant a partner visa on the basis that the criteria for the grant of a partner visa were not met (CB 111 to 134). The delegate was not satisfied by the applicant’s claims that he and the sponsor shared day-to-day expenses, nor that they had the responsibilities of a shared household, or that they lived together as spouses. Further, the delegate was not satisfied that the applicant and the sponsor presented themselves to family and friends as being in a committed spousal relationship, or were regarded by others as such, or that they had a commitment to a shared life together.
Application for review to Tribunal
On 25 August 2017, the applicant’s sponsor applied to the Tribunal for review of the delegate’s decision on the applicant’s behalf (application for review) (CB 135 to 138).
The Tribunal sent the following letters to Mr Daniel Obiokolie, the applicant’s registered migration agent (applicant’s migration agent), at the email address nominated on the application for review:
(a)letter dated 28 August 2017, inviting the applicant and sponsor to provide any material or written arguments in support of the application (CB 139 to 141); and
(b)letter dated 15 February 2019, requesting amongst other things, evidence that the applicant and sponsor were socially accepted as a couple, and inviting the applicant to provide any additional evidence he may have in support of his application (CB 143 to 147).
In further support of the visa application, the applicant provided, inter alia, the following six additional declarations from friends and acquaintances of the applicant and the sponsor:
(a)Statutory declaration from Bernice Akachili dated 25 August 2017 (CB 183).
(b)Statutory declaration from Michael Ofori Kumi dated 29 August 2017 (CB 179).
(c)Statutory declaration from Christian Ugwumba Uddgadi dated 29 August 2017 (CB 181).
(d)Statutory declaration from Thelma Onyinye Fjiogu dated 27 August 2018 (CB 177).
(e)Further statutory declaration from John Okonkwo dated 30 January 2019 (CB 185).
(f)Statutory declaration from Maria Namusisi Nakirijja dated 28 February 2019 (CB 175).
On 13 May 2019, the Tribunal invited the applicant to attend a hearing in person (CB 247 to 250). The letter, sent to the applicant’s migration agent, invited the applicant to provide any additional evidence or new information he wished to in support of the application. The Tribunal hearing record noted that the applicant attended the hearing in person on 9 July 2019 with the sponsor and the applicant’s migration agent (CB 255).
On 10 July 2019, the Tribunal sent the applicant’s migration agent a copy of the recording of the hearing held on 9 July 2019, as requested by the applicant (CB 260).
On 23 July 2019, the Tribunal sent the applicant’s migration agent an invitation to comment on or respond to information sent pursuant to s 359A of the Act (Invitation Letter) (CB 268 to 277). In the Invitation Letter, the Tribunal provided particulars of omissions and inconsistencies it perceived in the applicant’s evidence and invited the applicant to respond by 6 August 2019. The applicant responded with a written statement dated 2 August 2019 (CB 278 to 282).
On 15 February 2021 and 18 February 2021, Mr Mark Northam (Mr Northam), solicitor for the applicant, provided further submissions to the Tribunal on behalf of the applicant (CB 326 to 366), including:
(a)an additional statement of the applicant dated 18 February 2020;
(b)copies of money transfers to the applicant’s late mother;
(c)medical reports and certificates about the applicant’s mother;
(d)electricity and internet bills;
(e)photographs from 2018 and late 2020;
(f)real estate letter;
(g)joint account statement and certificate; and
(h)statement of the sponsor dated 8 December 2020.
No further statutory declarations or statements from friends and acquaintances were provided as part of the further submissions.
TRIBUNAL’S DECISION
On 9 July 2019, the applicant attended the Tribunal hearing in person with the sponsor and the applicant’s migration agent (CB 255). There was a delay of about two years between the Tribunal hearing and the Tribunal’s decision dated 5 July 2021 and that explains why the Tribunal expressly noted in its reasons that it listened to the audio recording of the hearing before making its decision ([3] of its reasons).
The Tribunal stated that the primary issue for determination was whether the applicant was the spouse of his sponsor at the time of the Tribunal’s decision ([4] of its reasons). From [9] to [10] of the Tribunal’s reasons, the Tribunal set out the details of the documents the applicant provided in support of his claim.
Credibility concerns
At [11] of the Tribunal’s reasons, the Tribunal stated it had “significant concerns” as to the applicant’s credibility because it found that the applicant’s evidence was inconsistent with the sponsor’s evidence and was evasive, unreliable or implausible in important particulars. Ultimately, the Tribunal found that the applicant was “an entirely undependable witness” and the sponsor had “been untruthful in much of the key information about their relationship” (at [11] of its reasons).
The Tribunal at [11] to [89] of its reasons explained the basis on which it concluded that the applicant was not a credible witness, being as follows:
(a)Sponsor’s travels: The applicant’s evidence about the sponsor’s overseas travels were “simply incorrect and his explanations were inadequate” ([15] of its reasons). The sponsor gave evidence about several international trips she went on that the applicant had very little, if any, knowledge of. In particular, the applicant was unaware of a significant incident that occurred on a trip to China that went wrong for the sponsor and the sponsor reached out to a friend for help and not the applicant ([22] to [27] of its reasons). The applicant stated he sent money to the sponsor, but that was not the sponsor’s evidence. The applicant was also unaware that all the sponsor’s trips in 2017 were to Uganda, the result of unravelling mental health caused by the trauma of a late term miscarriage ([28] to [33] of its reasons). The Tribunal found it “unfathomable” that the applicant did not know where and why the sponsor went on those trips and found it “even more unbelievable” that the applicant would tell the Tribunal the sponsor was vacationing, on one occasion with her son, in places where the sponsor has never even visited ([29] of its reasons).
(b)Travel to Fisher property: The applicant and the sponsor were “evasive and gave misleading information” to the Tribunal about their living arrangements ([39] of its reasons). The applicant did not disclose that the sponsor was living in Penrith, NSW when he was living at the Fisher property in the ACT. The applicant claimed that the sponsor spent all the time she was not working during the week, weekends or holidays in Fisher. The sponsor admitted, after stating she spent most weekends at the Fisher property, that she spent, at most, about a day a week there ([40] of its reasons). Inconsistent evidence was also given in relation to the schedule of travel to and from the Fisher property, as the applicant omitted from his evidence that if the sponsor did not return to Fisher then he travelled to Penrith, and the applicant and the sponsor had changing responses as to whether there was a regular schedule of the sponsor’s travel to and from the Fisher property ([40] to [42] of its reasons).
(c)Fisher property household: There were inconsistences about the house at Fisher and the applicant’s and the sponsor’s routine when they were said to be together ([43] of its reasons). The sponsor described the property as having one bedroom and a study, but the applicant stated it only had one bedroom and did not mention a study. In relation to eating dinner together, the applicant gave evidence that they did not eat meals anywhere in particular, but most often at the table in the bedroom. This varied from the sponsor’s evidence that they usually had dinner together at a table that was generally situated close to the kitchen, and sometimes in the lounge room. When questioned about the difference in their evidence, the applicant admitted that they do not always eat together or in the same place, that the applicant sometimes moved the table from the bedroom to be near the kitchen, but it was usually in the bedroom ([44] to [47] of its reasons).
(d)Joint bank account: The applicant and the sponsor gave contradictory evidence in relation to the use of their joint Commonwealth Bank account ([54] of its reasons). The sponsor told the Tribunal that there was only one card attached to the account because she used her own bank account for daily expenses and did not need to use the card. She stated she did not have access to the joint account and if she needed money the applicant would transfer it to her or bring it to her, as only he used the joint account. The sponsor then told the Tribunal that she did use the joint account, but only for major joint expenses such as holidays and bills, whilst the applicant used it for day-to-day expenses ([55] of its reasons). The applicant’s evidence was that the card to the joint account stayed at the Fisher property where anyone could use it, and that the sponsor did use the card when she was at the Fisher property, including for day-to-day expenses. The applicant also said that the sponsor did have access to the account.
(e)Saving for future property: There were inconsistencies about the applicant and the sponsor saving for a house ([71] of its reasons). The sponsor told the Tribunal there was an account mainly used for saving money to buy property, however this statement changed, and she then said they were saving in the joint account and confirmed there was no other account ([72] of its reasons). The sponsor had also stated that she only contributed to the joint account for holidays and bills. The joint account statements showed no savings, and the sponsor later claimed they were saving separately with the intention of combining funds to buy a property. The applicant’s evidence was that there was no savings plan for a house ([75] of its reasons). Both the applicant and the sponsor did not know how much was in the other’s account or how much had been saved by the other towards the house.
(f)Relationship with sponsor’s son: The applicant did not know where the sponsor went on her 2018 trip, which was a trip to pick up her son and return him to Australia. The sponsor changed her account of the nature of the relationship between the applicant and her son, from it being a good one to there being friction. The rift was attributed to the sponsor’s extended period of being single and the sponsor’s son’s challenges with the attention his mother gave to the applicant. The applicant said he and the sponsor’s son were “not close” and said there was “no reason” for this ([82] of its reasons). Further, the Tribunal had concerns about the “apparent complete exclusion” of the sponsor’s son from the marriage.
The Tribunal at [88] of its reasons did note that some of the inconsistencies “are, by themselves, minor” and some of its concerns “do centre around implausibility’s rather than strictly inconsistent and contradictory information or unexplained evidence”. However, the Tribunal, in looking at the information and evidence set out as a collective rather than individually, concluded that the evidence revealed a picture of the applicant and the sponsor not knowing basic information that it was reasonable to expect they would be aware of, and had been untruthful about key aspects of their relationship, such as their finances and home.
The Tribunal accepted that the applicant and the sponsor were married to each other on 7 February 2016, under a marriage that was valid for the purposes of the Act as required by s 5F(2)(a) of the Act ([92] of its reasons).
Statutory declarations of friends and acquaintances
The applicant submitted ten statutory declarations of friends and acquaintances as evidence of the opinion of the applicant’s friends and acquaintances about the nature of the relationship in support of his visa application, identified at [6] and [10] of this judgment.
At [95], [137] and [141] of its reasons, the Tribunal expressly addressed this evidence and made a finding, given the concerns it had about the applicant’s and the sponsor’s evidence, and the numerous inconsistencies identified at [19] of this judgment, that none of the statutory declarations were sufficiently objective or useful to overcome the concerns it had about the claimed relationship ([95] of its reasons). The relevant paragraphs dealing with the evidence of the friends and acquaintances are as follows:
95.The Tribunal has put its mind to what weight it can give the corroborative statements provided, particularly in the context of its credibility finding above. The Tribunal has found that Mr Dim and Ms Zzimula thoroughly lack credibility and have misled the Tribunal on fundamental questions put forward as supporting Mr Dim’s case. It finds, therefore, that their credibility has been so weakened that the well has been poisoned beyond redemption and it cannot be satisfied with any of the corroborating evidence about the relationship that has been provided by friends. Having considered each statement, the Tribunal found nothing in any of them that is sufficiently objective or useful to overcome the concerns it has about the claimed relationship based on its independent credibility finding. While it has not viewed the statements adversely, nor has it considered the evidence in the statements as reliable support for the claims. In light of its credibility finding and the lack of any assistance to be found in overcoming those concerns, it has given no weight to the third-party statements.
…
137.Having considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(c), the Tribunal finds that there is support for there being a social aspect to Mr Dim’s and Ms Zzimula’s relationship. However, it is far from definitive that they represent themselves to other people as being married to each other, not least because the Tribunal cannot have confidence in the opinions that their friends and acquaintances provided about the nature of their relationship. The extent to which the photographs support Mr Dim’s claims must be balanced against the credibility concerns and the nature of the pictures explored above. So while there is some evidence that the social aspects of their relationship supports that they are in a genuine married relationship, it is not much, it is not strong, and it does not overcome the Tribunal’s finding that their truthfulness as witnesses is so undermined that their claims and evidence about their marriage are not to be believed. On that basis, the Tribunal finds that what reliable evidence there is of any social aspects to the relationship undoubtedly shows that Ms Zzimula and Mr Dim are close personal friends. To find any more, however, would require the Tribunal to accept their oral and written evidence as support and that evidence is just not adequately reliable to depend on.
…
141.The Tribunal has taken the photographs into account, but for the most part they are generic in nature and, while they do not undermine the existence of a married relationship, nor do they illustrate companionship that has a spousal character. For the reasons given above the Tribunal accepts that they demonstrate that there is companionship between Mr Dim and Ms Zzimula, but do not alone show companionship that would support that they are in a married relationship. Also for the reasons above, the hotel invoices, Murrays Australia receipts, and all the other evidence of companionship, although relevant and given some weight, are insufficient without the support of reliable testimony to satisfy the Tribunal that they are dependable evidence of a married relationship. The testimony of Mr Dim and Ms Zzimula, and the written statements in support by them, their friends, and acquaintances, have not been found to be reliable.
Based on the evidence before it cumulatively and at the time of its decision, the Tribunal reached the following conclusions at [151] to [152] of its reasons:
(a)The evidence from the applicant and the sponsor was unreliable due to imperfect memories, as they had not been in a relationship since at least January 2017, and likely since late 2016 before the miscarriage. The fact that the couple had not been in a relationship since that time explained why the applicant had no relationship with the sponsor’s son, who did not arrive in Australia until 2018.
(b)At the time of the Tribunal’s decision (July 2021), the applicant and the sponsor were not in a relationship and, at best, were friends.
(c)The applicant and the sponsor no longer had a mutual commitment to a shared life to the exclusion of all others, their relationship was not genuine and continuing, and they did not live together or not live separately and apart on a permanent basis.
Therefore, the Tribunal found that the requirements of s 5F(2) of the Act were not met and the applicant and the sponsor were not in a “married relationship” as defined as at July 2021. Accordingly, the applicant was not the sponsor’s spouse as defined in the Act and did not satisfy cl 801.221 of Schedule 2 of the Regulations and did not satisfy the criteria for the grant of the visa.
GROUND IN THE APPLICATION
The application by the applicant accepted for filing on 6 August 2021 contained the following single ground for judicial review (as per original and particulars omitted):
The Second Respondent (Administrative Appeals Tribunal) made a jurisdictional error in the form of a constructive failure to exercise jurisdiction by not considering the opinions of the friends and acquaintances of the Applicant and his visa sponsor about the nature of their relationship, or not giving proper, genuine or realistic consideration to those opinions, as mandated by r l.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth).
RELEVANT LAW
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 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) to (d) of the Act are met, the Tribunal was required to “consider all of the circumstances of the relationship, including the matters set out” in subreg 1.15A(3): subregs 1.15A(1) and 1.15A(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.
PROCEEDINGS BEFORE THE COURT
At the hearing before me on 15 August 2025, the applicant relied on his written submissions dated 25 July 2025 and Mr Nicholas Poynder of Counsel (Mr Poynder) appeared for the applicant and made helpful oral submissions. The Minister relied on his written submissions dated 7 August 2025 and Mr Greg Johnson of Counsel (Mr Johnson) appeared for the first respondent (Minister) and equally assisted the Court. The evidence before the Court comprised of the Court Book tendered by the Minister, which was marked “Exhibit 1”.
Applicant’s contentions
Mr Poynder did not seek to challenge the Tribunal’s findings as to the applicant’s and the sponsor’s evidence and identified the complaint as being that the Tribunal failed to analyse or engage with the corroborating witness statements identified at [6] and [10] of this judgment.
The applicant identified [95], [137] and [141] of the Tribunal’s reasons, extracted at [23] of this judgment, as the Tribunal’s express statements that it was not prepared to rely on the statutory declarations of the friends and acquaintances.
The applicant submitted that although the Tribunal at [95] of its reasons stated that the statutory declarations were “not objective or not useful”, being a reason for not giving them weight, there was no analysis or evaluation as it why the declarations were not objective or not useful. Therefore, being the engagement aspect, the Tribunal was required to engage with each of the statutory declarations, and explain what they “on their face suggest” and why “there is just not enough in them for [the Tribunal] to overcome the problem [with] the applicant’s evidence”. The applicant argued the Tribunal did not validly exercise its power because it did not actively engage with the statutory declarations.
The applicant referred me to Singh v Minister for Home Affairs [2019] FCA 1790 (Singh) (McKerracher J) where the Court found the Tribunal had not given proper, genuine and realistic consideration to the statutory test when finding a partner relationship to lack genuineness notwithstanding the presence of supporting statements from third parties. The basis for McKerracher J’s conclusion in Singh and an analysis of the Tribunal’s requirements when it comes to corroborative evidence, in poison well cases, at [114] to [117] is as follows:
114It is not explained how the premise of knowledge of Mr Singh’s imprisonment was arrived at. The Tribunal does not explore with Mr Singh why the 14 declarants would make a false statutory declaration. The Tribunal’s methodology was to question both Mr Singh and his wife, identify inconsistencies and from there, reason that his credibility was undermined. However, it went further and then, in effect, reached the same conclusion in respect of all the independent evidence.
115As noted in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 per Kenny, Kerr and Perry JJ (at [33]), the cases where the ‘well is poisoned beyond redemption’ such that corroborative evidence can be completely dismissed are very rare: see also the discussion in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165. But even in such a case, the corroborating evidence must still be considered, even if it is to be rejected: BZD17 per Perram, Perry and O’Callaghan JJ (at [45]); WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 per Lee and Moore JJ (at [27]) and APF16 v Minister for Immigration and Border Protection [2019] FCA 524 per McKerracher J (at [61]).
116No attempt has been made to treat any of the declarants separately from any other declarant. No attempt has been made to explore the length of time each declarant knew the couple nor whether the declarants were even aware of the incarceration. The Tribunal’s conclusion (at [76]), and especially its reasoning for it, was consistent only with a determination that each of the 14 declarants were prepared to complete a statutory declaration as to a state of affairs which was known to them to be untrue. Given the inadequacy of the reasoning and the deficiency in the reasoning process, this is an extreme conclusion. One would expect substantially more justification for it.
117In this instance, the Tribunal’s analysis is such that there is no explanation as to how each of the 14 declarants would know that Mr Singh had been in prison, why each and every one of the 14 declarants would give false evidence about Mr Singh’s relationship and, in any event, what falsities were given. Mr Singh is left to guess as to how this conclusion was arrived at. In my view, there is force in the complaint as to the Tribunal’s treatment of the statutory declarations of the 14 declarants.
The applicant also referred me to M1/2021 v Minister for Home Affairs [2022] 275 CLR 582 (Kiefel CJ, Keane, Gordon and Steward JJ) at [24] (citations omitted):
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
The applicant submitted that the statutory declarations included statements from very close friends, and although the evidence was brief, it was not devoid of content and required consideration, which task the Tribunal failed to undertake. The applicant submitted that the statement by the Tribunal, to the effect that it had considered the statutory declarations made, but given a lack of credibility of the applicant’s evidence the Tribunal did not give weight to the statutory declarations, is not enough to meet the meaning of “consider”. The applicant relied on BFD17 v Minister for Immigration [2023] FCA 887 (Burley J) at [61]:
It is difficult to see how it can be said that a mere reference to this evidence, without more, can demonstrate that the Tribunal did in fact consider them in making its credibility findings. It provides no description of the content of that evidence and does not say how the evidence bears on its findings. Indeed, in circumstances where two witnesses purport to give direct evidence of observing events that support the appellants’ claims, one might expect the Tribunal to provide an explanation as to why that evidence is to be rejected, particularly where such a finding is tantamount to a conclusion that the evidence of both witnesses is a fabrication; see also BHM15 at [50].
Minister’s submissions
The Minister argued that the Tribunal at [9] and [10] of its reasons identified the statutory declarations. Further and contrary to what the applicant argued, the Tribunal explained at [95], [137] and [141] of its reasons, extracted at [23] of this judgment, why it decided to give no weight to the said statutory declarations, being that it found nothing in the statements that was “sufficiently objective or useful to overcome the concerns [the Tribunal had] about the claimed relationship based on [the Tribunal’s] independent credibility finding” (emphasis added). The Minister argued that it was open and reasonable for the Tribunal to engage with and consider the material as it did, being that it acknowledged it looked at each of the statements, considered them and found nothing in them “sufficiently objective or useful” (emphasis added) to overcome the concerns it had about the claimed relationship between the applicant and sponsor, being those inconsistencies identified at [19] of this judgment.
Both the applicant and the Minister accepted that the Tribunal’s reference at [95] of its reasons, to the statements of the corroborating friends and family as not being “reliable support for the claims”, was not a finding that any of them lacked credit in the sense that they were being untruthful. This was said to be reinforced by the fact the Tribunal explicitly stated in its reasons at [95] “[w]hile it has not viewed the statements adversely…”.
CONSIDERATION
The sole issue for consideration is whether the Tribunal failed to give proper, genuine or realistic consideration to the opinions of friends and acquaintances of the applicant and sponsor about the nature of their relationship, as required by r 1.15A(3)(c)(ii) of the Regulations.
Opinions of the friends and acquaintances of the applicant and sponsor about the nature of their relationship
I accept that the statutory declarations, referred to at [6] and [10] of this judgment, were the type of evidence required to be considered by the Tribunal as mandated by r 1.15A(3)(c)(ii) of the Regulations, in that it was important evidence put forward by the applicant to support his claim that at the time of the Tribunal hearing he was the spouse of his sponsor. This is because the statutory declarations bore on the circumstances of the relationship the Tribunal needed to consider, being evidence of the social aspects of the relationship, including the opinion of the applicant’s friends and acquaintances about the nature of the relationship.
The Tribunal was required to consider the statutory declarations to fulfill its statutory obligation under r 1.15A of the Regulations. Accordingly, I accept in this case the Tribunal may fall into jurisdictional error if it failed to actively and intellectually engage in a consideration of the statutory declarations.
Turning to the statutory declarations, the contents of each are summarised as follows:
(a)Mr Christian Ugwumba stated on an unknown date that he had known the applicant since they both attended the same university in Nigeria, and that the applicant’s and the sponsor’s marriage was genuine and ongoing (CB 75).
(b)Ms Namusisi Mary Nakirijja stated on an unknown date that the applicant and the sponsor had been residing in a Merrylands property since December 2015 (CB 91).
(c)Mr John Chukwuemeka Okonkwo declared on 29 February 2016 that he and the applicant were good friends from Nigeria, having lived on the same street prior to 2008, and that the relationship between the applicant and the sponsor was genuine and true because of the love he had seen them share together, having had them visit his house a couple of times, had dinner out together, and having been confided in by the sponsor in private who stated to him how much she loved the applicant. Mr Okonkwo also declared that he was a witness to their traditional marriage and wedding and from all observations believed that “they will make a wonderful home and long relationship” (CB 72 to 74).
(d)Mr Isaac Gitta Kasirye declared on 2 March 2016 that he had known the sponsor from Uganda for eight years, being like brothers and sisters and very good friends, and that he believed the marriage of the applicant and sponsor “will be a good one” and “they will make a wonderful family” and had a very genuine relationship, having witnessed their shared love, being with the applicant a couple of times and talking with him and having been told by the sponsor how she felt about the applicant when she first introduced them (CB 69 to 71).
(e)Ms Bernice Akachili declared on 25 August 2017 that she had known the applicant since they were coworkers in the ACT in 2015, became aware of his relationship with the sponsor that same year and was aware the relationship grew stronger, they became inseparable and were married in February 2016 (CB 183).
(f)Mr Michael Ofori Kumi declared on 29 August 2017 that he had known the applicant’s and the sponsor’s relationship to be ongoing since 2015, and they had been nice people (CB 179).
(g)Mr Christian Ugwumba Uddgadi declared on 29 August 2017 that he had known the applicant back in Nigeria having attended the same university as the applicant and their relationship is genuine and ongoing (CB 181).
(h)Ms Thelma Onyinye Fjiogu declared on 27 August 2018 that she had known the applicant for about five years, met the sponsor through the applicant, and have had “several family outings and dinner eat outs on many occasions” (CB 177). Pausing there, Mr Poynder submitted that the deponent’s statement that she had several family outings and dinner eat outs on many occasions with the applicant and the sponsor, although a basic statement, says more than just that the deponent knew them and they were genuine. Despite Mr Poynder’s submission, I find it was reasonably open to the Tribunal to find this statement was not useful to overcome its concerns that the applicant and the sponsor were no more than friends, in that Ms Fjiogu’s statement did not provide any evidence or detail as to the family outings and dinner eat outs which suggested that the applicant and the sponsor represented themselves as a couple who had a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship was genuine and continuing.
(i)Mr John Okonkwo declared on 30 January 2019 that he had known the applicant’s and the sponsor’s relationship to be ongoing since 2015 and was present at their wedding in 2016 (CB 185).
(j)Ms Maria Namusisi Mary Nakirijja declared on 28 February 2019 that she had known the sponsor for over seven years and the applicant for over five years, and “since then their relationship has been going on well and genuine” (CB 175). Pausing there, Mr Poynder contended that the deponent’s statement that the relationship was “going on well” was objective and more than just stating that they were in a genuine relationship. I find that it was reasonably open to the Tribunal to find that the said statement contained no sufficient objective evidence and lacked useful detail or explanation for the conclusion expressed.
I find the Tribunal was aware of the requirement to consider the statutory declarations, as disclosed by the Tribunal’s references in its reasons to:
(a)the statutory declarations (at [9] and [10] of its reasons) being documents the applicant provided in support of the claim that he was the sponsor’s spouse; and
(b)the requirement that, in forming an opinion about whether the applicant was the sponsor’s spouse, “regard must be had to all of the circumstances of the relationship: r.1.15(2). This includes evidence of the…social aspects of the relationship…” ([91] and [93] of its reasons).
The Tribunal’s assessment of the statutory declarations of the friends and acquaintances must properly be considered in the context of the Tribunal’s reasons, being its adverse credibility findings as to the applicant’s and the sponsor’s evidence as summarised at [19] of this judgment. It was in that context that the Tribunal at [95] said that it considered the statutory declarations. The Tribunal also said at [95] of its reasons that it gave the statutory declarations no weight because the contents of the said statements were not “sufficiently objective or useful”. The Tribunal reasoned that, due to its concerns about the credibility of the applicant and the sponsor, it examined whether the statutory declarations presented any objective information regarding the social aspects of the relationship that could address those concerns. I find that approach was reasonable.
To be objective requires that the deponents of the statutory declarations identify facts and report on events, rather than on personal opinions or feelings. It can be seen from the contents of the statutory declarations set out at [42] of this judgment that it was open to the Tribunal to reasonably find that there was nothing in the statutory declarations that was sufficiently objective. The statutory declarations spoke of the applicant and the sponsor being nice people and belief that they will make a wonderful home and family and good, long relationship together that was going on well.
Further, to be useful the statutory declarations needed to identify facts as to how the applicant and the sponsor interacted with their wider social community, so the Tribunal could consider whether the couple had a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship was genuine and continuing. I find it was reasonably open to the Tribunal to find that there was nothing in the statutory declarations that was sufficiently useful because as can be seen from the summary at [42] of this judgment, the evidence was no more than general statements that the applicant and the sponsor were in a relationship that was genuine, true and ongoing relationship since 2015 and that they married in February 2016. Some of the statutory declarations deposed that the applicant’s and the sponsor’s shared love and were seen together, having invited them over to the deponents’ home or attended family outings and dinners out with them, and from conversations with the applicant and the sponsor where they stated how they felt towards each other. However, the declarations did not contain evidence detailing how the applicant and the sponsor interacted when they were together or in the community or at social events together, including the family outings and dinners with friends and acquaintances, the frequency of these events or statements explaining how they were genuine and continuing as evident from their words and actions.
Accordingly, although the Tribunal’s reasons were brief, I find the Tribunal discharged its statutory obligation in its consideration of the statutory declarations.
CONCLUSION
Given that no jurisdictional error has been disclosed, the application is dismissed.
COSTS
At the hearing before me, I heard the parties’ submissions as to costs. The Minister sought costs fixed in the “scale” amount. The applicant did not oppose the amount sought by the Minister. Given the matter was listed before me for a half-day hearing with the applicant’s Counsel and Minister’s Counsel appearing, and considering the work undertaken, I find the costs in the scale amount sum of $8,371.30 fair and reasonable and I order that the applicant pay this sum to the first respondent.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 16 October 2025
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