Duong v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1291
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duong v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1291
File number(s): BRG 487 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 29 November 2024 Catchwords: MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered all of the circumstances of the parties’ relationship, including all the matters set out in r 1.15A(3) of the Migration Regulations 1994 (Cth) – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5F, 5F(2),5CB,
Migration Regulations (Cth) cl 820.211; 820.221 reg 1.15A(3)
Cases cited: He v Minister for Immigration and Border Protection [2017] 255 FCR 41
Singh v Minister for Immigration and Border Protection [2017] FCA 1298
Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 18 November 2024 Date of hearing: 18 November 2024 Place: Brisbane Solicitor for the Applicant: The applicant appeared in person. Solicitor for the Applicant: Ms Helsdon appeared on behalf of the First Respondent - Sparke Helmore. Submitting appearance for the Second Respondent, subject to costs. ORDERS
BRG 487 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOAI THU DUONG
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6500.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Vietnam. On 21 March 2018, the applicant made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa (“the visa”) and a Partner (Residence) (Class BC) (Subclass 801) visa on the basis of her relationship with an Australian citizen (“the sponsor”) (Court Book (“CB”) 1-33).
The delegate was satisfied that the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of the Migration Act 1958 (Cth) (“the Act”) however, was not satisfied that the applicant met the criteria in cl 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate was not satisfied that the applicant and the sponsor were in a married relationship within the meaning
subs 5F(2) of the Act having regard to the factors in reg 1.15A(3) of the Regulations. Accordingly, the delegate refused to grant the visa.
Application for review to the Administrative Appeals Tribunal
On 3 December 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 130-131). The applicant appointed a registered migration agent to act as her representative (CB 130-131). The applicant subsequently (on 9 November 2021) appointed a different registered migration agent to act as her representative and authorised recipient (CB 138-139).
On 3 December 2018, the Tribunal acknowledged receipt of the application and advised the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 133-135).
On 24 June 2022, the Tribunal invited the applicant to attend a hearing on 11 July 2022 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 173-174).
On 6 July 2022, the applicant’s migration agent provided a written submission and documentation to the Tribunal in support of the applicant’s application for review (CB 178-231).
On 11 July 2022, the applicant attended the hearing with her sponsor (CB 232-233). The applicant and sponsor gave evidence. The applicant was assisted by her migration agent and an interpreter in the Vietnamese and English languages.
After the hearing, on 25 July 2022, the Tribunal wrote to the applicant requesting that she provide any further information to the Tribunal that the applicant believed might assist her case, including documents about the financial aspect of the applicant’s relationship with the sponsor. The Tribunal requested bank account information including but not limited to, statements and transaction listings of accounts held by the applicant and the sponsor jointly and in their own names for the period between 12 November 2016 and 25 July 2022 (CB 235-237).
On 1 August 2022, the applicant’s migration agent provided the Tribunal with a written submission and various bank statements for the applicant’s bank account, the sponsor’s bank accounts and a bank account in the joint names of the applicant and the sponsor (CB 238-606).
On 28 September 2022, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 614-621).
THE TRIBUNAL’S DECISION
The Tribunal identified that the determinative issue was whether at the time the visa application was made and at the time of the Tribunal’s decision, the applicant satisfied the criteria in
cl 820.211 and 820.221 in Schedule 2 of the Regulations which required that the applicant is the spouse or de facto partner of the sponsor who is an Australian citizen ([9]-[10]).
The Tribunal referred to the definition of spouse in s 5F of the Act which provides that a person is the spouse of another if the two persons are in a married relationship which requires that they are married to each other under a marriage that is valid for the purposes of the Act; they have a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship between them is genuine and continuing; and, they live together or do not live separately and apart on a permanent basis. The Tribunal stated that in forming an opinion about those matters, regard must be had to all the circumstances of the relationship and referred to
reg 1.15A(3) of the Regulations ([11]). The Tribunal further stated ([11]) that each of the specific matters set out in reg 1.15A(3) of the Regulations are questions that must be answered by the Tribunal and in that regard, referred to the authority of He v Minister for Immigration and Border Protection [2017] 255 FCR 41 (“He”).
Based on the Australian marriage certificate that the applicant had provided to the delegate, the Tribunal found that the applicant and the sponsor were married to each other under a marriage that is valid for the purposes of s 5F(2)(a) of the Act [12].
The Tribunal then went on to consider whether the other requirements of a married relationship were met having regard to the factors in reg 1.15A(3)(a)-(d) ([13]-[35]).
As to the financial aspects of the relationship, including joint ownership of assets, joint liabilities, extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses the Tribunal summarised the evidence as follows:
(a)The applicant said that the parties had agreed not to use each other’s money but to keep their finances independent and separate and had separate bank accounts. They had opened a joint account on the advice of a migration agent, but used it only occasionally for shopping purposes ([13]);
(b)The applicant said that her salary as a full-time nail technician is paid into her sole account from which she pays her share of household expenses including food and grocery items ([13]);
(c)The applicant said that the sponsor pays rent and utility expenses ([13]);
(d)The applicant said that she and the sponsor had resided at a number of residences over a period of five years ([14]). In that time, the applicant and the sponsor had not been the principal tenants of any property in which they had lived, except for a period of three months in respect of which they had a tenancy agreement. Otherwise, the applicant’s evidence was that they only rented a room in each residence ([16]);
(e)The sponsor’s evidence was that they intended to purchase their own home in the future ([15]);
(f)The applicant and sponsor each have their own motor vehicle which they purchased independently, and which are registered in each of their own names. All motor vehicles expenses are kept separate ([17]);
(g)The applicant gave evidence and provided documentation that she had taken out a life insurance policy to the benefit of the sponsor in the amount of $500,000.00 ([18]);
(h)The sponsor’s evidence was that he had approximately $85,000.00 in superannuation. The documentation showed that the applicant was a non-binding beneficiary. The sponsor’s evidence was that that he intended to make the applicant a binding beneficiary. The Tribunal observed that the sponsor had not made that change in over 4.5 years of marriage. The sponsor’s evidence was that he had an insurance and TPD policy connected to his superannuation policy of approximately $150,000.00. There was no documentation from the superannuation provider to corroborate the amount of superannuation or the extent of insurance claimed by the sponsor ([19]);
(i)The applicant provided statements for the bank account in her name and for the bank account in the joint names of the applicant and the sponsor ([20]);
(j)The sponsor provided filtered bank account statements for bank accounts in his name purporting to show payments from his bank account for rent and utilities on behalf of himself and the applicant ([21]).
The Tribunal made the following findings on the evidence as to the financial aspects of the relationship ([21]-[22]):
(a)There was no evidence provided to confirm that the amounts paid from the sponsor’s bank account related to the parties rent and utility expenses. There were no details of whom the payments were made to, either by reference to the recipient or their bank account details or evidence of the source of funds received into the sponsor’s account;
(b)There were no invoices, receipts or statements relating to the expenses;
(c)The statements for the joint account disclosed only minor usage;
(d)The applicant and the sponsor do not pool their financial resources and have kept their financial matters independent and separate;
(e)It was not satisfied that the parties share household expenses;
(f)There was no documentary evidence to support the claim that the applicant and sponsor resided together and continue to reside together at the addresses supplied other than a three-month period in 2018 as referred to in the general tenancy agreement for the Coyne Street address;
(g)There had been no corroborative evidence that the parties have joint ownership of any real estate or other major assets or liabilities;
(h)It accepted that each party owes an obligation to the other, in respect of insurance and superannuation benefits.
The Tribunal concluded that it placed little weight on the financial information provided by the applicant ([22]).
As to the nature of the household including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework, the Tribunal summarised the evidence as follows ([23]):
(a)The applicant and sponsor share housework with the applicant performing more of the kitchen and laundry work;
(b)Save for a three-month period in 2018, the parties do not appear to have lived in a residence alone together but have only been share tenants renting a single bedroom in a property of other people;
(c)The applicant and sponsor do not have any children.
The Tribunal concluded that, in the circumstances, it placed limited weight on the evidence of the applicant and the sponsor concerning the nature of their household ([24]).
As to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities the Tribunal summarised the evidence as follows:
(a)The applicant and sponsor do not regularly go on social outings ([25]);
(b)The applicant and sponsor may attend a meal as an outing with close friends who were described as Peter and David and their families ([25]);
(c)There was no reference to social outings other than a small circle of Vietnamese-speaking people who were known to the applicant ([25]);
(d)There were photographs of the civil marriage ceremony which was of the applicant, the sponsor, the celebrant and two other gentlemen; of the applicant and sponsor alone having a meal or in a motor vehicle; of a dinner attended by the applicant, the sponsor and a number of other people; of the applicant and the sponsor in Vietnam including dining out and sightseeing; of the applicant and sponsor with what appear to be family members and at an airport; of the wedding of the applicant and sponsor in Vietnam in the company of family and friends ([26]);
(e)A statutory declaration of a person who states that the applicant is the friend of a friend and that they sometimes go out with the applicant and sponsor ([27]);
(f)That the sponsor said the applicant had met his sister, brother-in-law and their children ([27]).
The Tribunal made the following findings on the evidence as to the social aspects of the relationship ([28]):
(a)Whilst the photographs indicated some recognition by family and friends of their relationship, it was not satisfied that the evidence demonstrated recognition of a genuine and continuing relationship;
(b)It appeared from the evidence that the only people to whom the parties represented themselves as married, are their friends named Peter and David and their families.
The Tribunal concluded that it placed limited weight on the social aspects of the relationship ([28]).
As to the nature of the applicant’s and sponsor’s commitment to each other, including the duration of the relationship, the length of time they have lived together, the degree of emotional support they draw from each other and whether they see their relationship as long term the Tribunal summarised the evidence as follows:
(a)The applicant told the delegate in a telephone interview that she met the sponsor when he collected her, as an Uber driver, from the airport on her arrival in Australia and that they met again a few weeks later at the home of a mutual friend ([30]);
(b)The applicant told the Tribunal at the hearing that her father had arranged for a friend in Australia, Peter Tran, to meet her at the airport and that as he was unavailable, he arranged for the sponsor to collect her because the sponsor was an Uber driver and lived with Peter Tran. The sponsor drove the applicant from the airport to Varsity Lakes ([31]);
(c)The applicant told the Tribunal at the hearing that there was no discussion during the trip from the airport about the fact that the sponsor knew Peter Tran or that he lived with him but said that she could not remember and maybe the sponsor had mentioned it ([32]);
(d)When asked why she had not told the delegate that the sponsor knew Peter Tran and lived with him, the applicant told the Tribunal that she had told the delegate this ([32]);
(e)The transcript of the conversation between the applicant and the delegate indicated that the applicant had not told the delegate that the sponsor told her that he knew Peter Tran and lived with him ([32]);
(f)The sponsor told the Tribunal that he was asked by Peter Tran to pick up a friend from the airport, that he attended the airport holding up a sign with the applicant’s name on it and then drove her to the residence of a friend at Varsity Lakes ([32]);
(g)The sponsor said that he did not mention to the applicant that he knew Peter Tran or that he lived with him ([33]);
(h)The sponsor recalled the function at Peter Tran’s apartment a few weeks later and recalled the applicant attending and that there were some other people there but he could not recall who they were ([33]);
(i)The applicant was unable to name the business at which her husband was employed. She said that he had been employed there for almost a year and had worked at other agencies in a similar role but had no recollection of their names either ([34]).
The Tribunal made the following findings on the evidence as to the nature of the applicant’s and sponsors commitment to each other:
(a)The applicant’s responses to the Tribunal’s questions about her meeting the applicant were inconsistent and vague and in that regard the Tribunal found that she was not a credible witness ([32]);
(b)The sponsor’s evidence about meeting the applicant at Peter Tran’s apartment were inconsistent and vague ([33]);
(c)There was no corroborative evidence of the duration of the relationship or the length of time they lived together other than the tenancy agreement for the three months in 2018 ([33]);
(d)There was no evidence of the degree of companionship and emotional support the parties draw from each other ([33]).
The Tribunal concluded that it was not satisfied that the applicant and sponsor see their relationship as a long term one and it placed little weight on the nature of the commitment of the parties ([35]).
The Tribunal concluded overall that having considered all of the evidence and having regard to the matters required to be considered in reg 1.15A(3) of the Regulations it found that at the time of the visa application, the parties did not satisfy the definition of a married relationship, as it was not satisfied that the requirements of s 5(F)(2) of the Act were met ([36]-[37]) and was therefore not satisfied that the applicant satisfied the criteria in
cl 820.211(2)(a) of the Regulations ([38]-[39]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 2 November 2022. The applicant also filed an affidavit affirmed on 2 November 2022. The affidavit annexes the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that she had these documents in Court with her. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Vietnamese and English languages. The applicant was given the opportunity to make oral submissions in support of her application for judicial review and in reply to the first respondent’s oral submissions.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
The applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
The Tribunal has made an error of law.
Particular:
The Tribunal did not properly consider all circumstances of the relationship, including all the matters set out in the Migration Regulation 1.15A(3).
Ground One: The Tribunal did not properly consider all circumstances of the relationship including all the matters set out in Migration Regulation 1.15A
For the purposes of s 5F(2) of the Act , persons are in a married relationship if they are married to each other under a marriage that is valid for the purposes of the Act; have a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship between them is genuine and continuing; and they live together or do not live separately and apart on a permanent basis. Regulation 1.15A(2) requires that when the Minister considers whether the conditions in s 5F(2) of the Act exist, the Minister must consider all of the circumstances of the relationship including the matters set out in reg 1.15A(3).
Regulation 1.15A(3) sets out four principal matters in sub-paragraphs (a)-(d). They are 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. Regulation 1.15A(3) then sets out specific matters in respect of each of the four principal matters that the Minister is required to consider. The Minister is required to consider each of those matters and any other relevant circumstances of the relationship.
Each of the matters set out in reg 1.15A(3) are relevant considerations which the decision maker is bound to consider (He at [52]). In He, the Full Court of the Federal Court in considering whether the Minister (or Tribunal) is required to make findings on each of the circumstances in reg 1.15A(3) said, in summary:
(a)The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances (at [74]);
(b)The requirement to ‘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 (set out under each principal matter) which requires that these questions will be answered not merely thought about (at [76]);
(c)They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a married relationship (at [76]);
(d)A finding must be made on each of the four principal matters. In many cases, the requirements to make findings on the principal matters will be satisfied in the course of making findings on the specific matters (at [77]);
(e)The written statement (of the Tribunal) functions as a record of the Tribunal’s reasons for making its decision and is evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to ‘consider’ all the circumstances of the relationship, including all the matters set out in reg 1.15A(3) (at [79]);
(f)The Tribunal’s reasons do not need to be structured in a manner that formulaically addresses each of the relevant matters in turn (at [82] citing Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20] per Moore, Mansfield & Dowsett JJ);
(g)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 (at [82] citing Singh v Minister for Immigration and Border Protection [2017] FCA 1298 at [20] per Charlesworth J).
The application does not provide any particulars of how the applicant contends that the Tribunal did not properly consider all the circumstances of the relationship, including all the matters set out in reg 1.15A(3). The applicant did not file any written submissions in which such particulars might have been provided.
In oral submissions, the applicant particularised her complaint by stating that there are four matters in the Tribunal’s reasons that are “not correct”. The Court deals in turn with the applicant’s submissions on each of these matters and the submissions of the first respondent.
First, the applicant submitted that the Tribunal was incorrect in finding that she only had photographs of herself with Vietnamese people. The applicant said this is not correct because there were photographs before the Tribunal taken with the Vietnamese family, her husband’s sister’s family, and people in her workplace which included Japanese, French and Italian people.
The applicant’s migration agent provided a number of photographs to the Tribunal (CB 192-196; 203-204; 206-208, 213; 217-218; 225; 229-231). The Court observes that there was no description or information accompanying each of the photographs.
The Tribunal made a number of observations about the photographs in its reasons for decision when considering the principal matter of the social aspects of the relationship and the particular matters of whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities ([26]). The Tribunal did not make the finding for which the applicant contends. The Tribunal did not find that the applicant only had photographs of herself with Vietnamese people. The Court put this to the applicant and the applicant directed the Court’s attention to the Tribunal’s remark at the end of [25] of the Tribunal’s decision. There the Tribunal said that there was no reference in the applicant’s evidence to social outings other than a small circle of Vietnamese speaking people who were known to the applicant. That preceded the paragraph in which the Tribunal referred to the photographs.
The first respondent’s solicitor submitted that the sentence at the end of [25] in the Tribunal’s reasons for decision was just a summary by the Tribunal of the evidence that was given to the applicant by the Tribunal. The Court agrees. In the paragraph that followed about the photographs, the first respondent submitted that the Tribunal does not expressly mention or limit those photographs to only Vietnamese people. The Court agrees.
The first respondent’s solicitor then went on to submit that the Tribunal’s finding was that there was some recognition by family and friends of the relationship between the applicant and the sponsor ([28]). The Court agrees. The Tribunal’s reasons demonstrate that it gave proper, genuine and realistic consideration to each of the prescribed circumstances in respect of the social aspects of the relationship between the applicant and the sponsor and made a finding on those matters that was open to it on the evidence.
Secondly, the applicant submitted that the Tribunal was incorrect in finding that there was no evidence to prove that she and the sponsor lived together for a long time when there was evidence before the Tribunal including bills in their names and packages sent to them at the same address. The applicant directed the Court to the following documents in the Court Book:
(a)A certificate of insurance dated 18 September 2019 for a motor vehicle where the insured are listed as the applicant and the sponsor and stating that the address at which the car is left overnight is unit 211, 1-25 Parnell Bvd, Robina (CB 202);
(b)A letter from BUPA dated 20 September 2019 addressed to the sponsor at Unit 211, 1-25 Parnell Bvd, Robina (CB 228);
(c)A letter dated 24 June 2020 from the Department of Transport being a driver licence delivery notice addressed to the to the applicant at Unit 211 1-25 Parnell Bvd, Robina (CB 216);
(d)A letter dated 27 July 2020 from BUPA addressed to the applicant and the sponsor at Unit 211, 1-25 Parnell Bvd, Robina (CB 215);
(e)A letter dated 27 July 2020 from BUPA addressed to the applicant and the sponsor at Unit 211, 1-25 Parnell Bvd, Robina (CB 227). The Court observes that this is the same letter as at CB 215;
(f)A notice of assessment dated 11 September 2020 from the Australian Taxation Office for the year ended 2020 addressed to the applicant at 211, 1-25 Parnell Bvd, Robina (CB 214);
(g)Payment receipts dated 16 March 2021 & 19 November 2021 from Aussie Broadband addressed to the applicant and the sponsor at Unit 211, 1-25 Parnell Bvd, Robina (CB 220-222);
(h)A letter dated 30 July 2021 from Suncorp about CTP insurance addressed to the applicant at Unit 211, 1-25 Parnell Bvd, Robina (CB 219);
(i)An invoice from iiNet dated 10 June 2022 addressed to the applicant and the sponsor at unit 320, 29-49 Varsity Parade, Varsity Lakes (CB 226);
(j)An undated Express Post label addressed to the applicant and the sponsor at Unit 211, 1 Parnell Bvd, Robina (CB 203);
(k)An undated and unaddressed statement of cover information from Nobleoak Insurance addressed to the applicant providing details of insurance cover including that the sponsor is the 100% beneficiary (CB 222).
As can be seen, some of the above documents are addressed to the applicant or sponsor alone but others are addressed to both the applicant and the sponsor at the address Unit 211, 1-25 Parnell Boulevard, Robina. One document is addressed to the applicant and the sponsor at an address in Varsity Lakes.
The Tribunal recorded in its decision that the applicant had given evidence that she and the sponsor resided at a number of residences including at a Parnell Boulevard, Robina and Varsity Lakes ([14]). The Tribunal did not reject that evidence. Its finding was that the evidence of the parties was that they have not been the principal tenant, nor entered into any tenancy agreement for any property in which they lived, with the exception of a period of three months at a unit at Coyne Street, Coolangatta and that their evidence was that they only rented a room at each of the other residences ([16]).
As the first respondent’s solicitor observed, what the applicant perhaps takes issue with is the Tribunal’s statement in the last sentence of [16] of its decision. There the Tribunal says - “Therefore, other than for a period of three months at the unit at Coyne Street, the Tribunal has no corroborative evidence that the parties have resided together in the last five years”.
The Court understands the applicant’s submission to be that the above documents did go to corroborating that the applicant and the sponsor lived together at the address in Parnell Boulevard, Robina during the period from 18 September 2019 to November 2021 and at the address in Varsity Lakes in July 2022 and that the Tribunal had ignored that evidence in concluding as it did in [16].
The Tribunal’s finding in the last sentence of [16] suggests that the Tribunal was making a finding that the parties had not lived together other than in the unit in Coyne Street.
The first respondent’s solicitor submitted that the statement at the end of [16] should be considered having regard to what circumstance in reg 1.15A(3) of the Tribunal was addressing at that point in its reasons. The Tribunal was addressing the financial aspects of the relationship and whether the applicant and the sponsor were liable to pay rental in respect of the residences in which they had lived and is referring to what evidence the applicant had given to corroborate that financial aspect of the relationship.
Although there is some lack of precision in what the Tribunal was saying at [16], the first respondent’s submission is consistent with what the Tribunal said at [23] of its decision in which it referred to the applicant and sponsor only having ever lived in a residence alone together for a three month period in 2018 apart from which they had only been share tenants renting a single bedroom in the property of other people. The Tribunal makes a finding consistent with that in its overall conclusions at [36]. Accordingly, the Tribunal did not make the finding for which the applicant contends. The Tribunal accepted the applicant’s evidence that she had lived with the sponsor at shared properties renting out a single bedroom and alone together at the Coyne Street unit for a three-month period in 2018 [23].
As to the Tribunal’s findings with respect to the financial aspects of the relationship regarding who paid the rent, submissions were also made as to the bank statements the applicant and sponsor provided to the Tribunal after the hearing (CB 238-606). As noted, the applicant’s evidence was that the sponsor paid rent and utilities. The sponsor provided to the Tribunal what he described to the migration agent as statements he had “filtered to show that I pay the rent and utilities for me and Thu...” (CB 242). The statements show entries for the period 4 July 2019 to 23 December 2021 (CB 243-260) of payments to a Cecilia Geddes. Against those payments is the description “Unit 211 – Phil” or “Unit 211 – electricity”. The statements also show entries for the period 1 February 2022 to 14 June 2022 (CB 260-267) of payments to a R Kong. Against some of those entries is the description “Unit 320 Phil”, “Phil-Rent” or “U320-Bond-Phil”.
In referring to those bank statements, the Tribunal first said - “However, there was no evidence to confirm that the amounts paid related to rental and utilities expenses of the parties. There are no details of to whom the payments are made, either by reference to the recipient or their bank account details” [21]. In making that finding, the Tribunal does not refer to the fact that the entries in the sponsor’s bank statements did provide the name of the person to whom the payments were made (that is, Cecilia Geddes and R Kong) or, that in relation to the payments to Cecilia Geddes the entry in the statements was to “Unit 211” which appears to correlate to the address the applicant said that she and the sponsor lived at in Parnell Boulevard, Robina.
However, the Tribunal went on to say – “There are no invoices, receipts or statements relating to the expenses” [21]. The applicant confirmed that to the Court that there were no such invoices, receipts or statements in the Court Book. Accordingly, what the Tribunal was concerned with in its reasons at [21] was what evidence there was to satisfy it that the payments the sponsor made were for rent and utilities at residences in which the applicant and sponsor said they had lived together during their relationship. The Tribunal was not so satisfied.
The Court would engage in impermissible merits review if it were to consider whether it might have reached a different conclusion on that evidence and the Court is not making any such finding.
The Tribunal was required to give proper, genuine and realistic consideration to each of the prescribed circumstances in respect of the financial aspects of the relationship between the applicant and the sponsor and made a finding on those matters. The Tribunal’s reasons demonstrate that it did so and reached a conclusion that was open to it on the evidence about those matters.
Thirdly, the applicant made a submission about the fact that the Tribunal had mentioned that her husband had not nominated her as a binding beneficiary in respect of his superannuation. The applicant said this was not reasonable (to expect him to do so) given her husband’s good health and that he is still working. At [19], the Tribunal referred to the sponsor’s evidence that he intends to make the applicant a binding beneficiary. The Tribunal then observed (at [19]) – “it is noted that the sponsor has not made a change in over 4.5 years of marriage”. At this point in its reasons the Tribunal was considering the financial aspects of the relationship.
The first respondent submitted that the applicant’s submission was in effect to ask the Court to draw a different observation on the evidence. That would be an invitation to engage in impermissible merits review. In any event, as the first respondent submitted, the Tribunal made a finding that each of the parties owed each other an obligation regarding superannuation and insurance benefits ([22] and [36]).
The applicant’s fourth submission was that the Tribunal was incorrect in finding that the applicant and sponsor did not give each other emotional support. The applicant did not draw the Court to the specific parts of the Tribunal’s decision with which she was concerned. However, at [29] onwards the Tribunal considers the nature of the applicant’s and sponsor’s commitment to each other including the degree of emotional support they draw from each other. The Tribunal addressed the evidence of the applicant and sponsor as to how they first met and their meeting at the residence of Peter Tran some few weeks later ([30]-[33]). The Tribunal explained its reservations about the credibility of the applicant and the sponsor regarding that evidence.
The Tribunal then went on to find that there was no corroborative evidence of the duration of their relationship or the length of time they lived together and no evidence of their degree of companionship and emotional support they draw from each other ([35]). The Tribunal’s reason demonstrate that it gave proper, genuine and realistic consideration to each of the prescribed circumstances in respect of the applicant’s sponsor’s commitment to each other and reached a conclusion that was open to it on the evidence.
In the end, the applicant may disagree with the conclusions that the Tribunal reached in respect of each of the principal matters and specific matters it was required to consider and make findings on in arriving at a conclusion as to whether she and the sponsor were in a married relationship. However, for the reasons set out above, the Court finds that the Tribunal’s reasons demonstrate that it gave proper, genuine and realistic consideration to the principal matters and the specific matters and made findings about those matters that were open to it on the evidence.
No jurisdictional error is established.
CONCLUSION
Accordingly, for the reasons given above, the application is dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.
Associate:
Dated: 29 November 2024
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