Duong v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 546
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duong v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 546
File number(s): SYG 1565 of 2018 Judgment of: JUDGE EGAN Date of judgment: 27 June 2023 Catchwords: MIGRATION LAW – Where Tribunal was required to consider each of the matters as set out under r. 1.15A(3) of the Migration Regulations for the purpose of making findings as to whether the applicant and his sponsor were in a spousal relationship – where Tribunal failed to engage in an active intellectual consideration of the evidence before it – where the Tribunal had failed to demonstrate in its reasons that it had made findings on relevant issues – application granted – decision quashed. Legislation: Migration Act 1958 (Cth) ss. 5F, 65.
Migration Regulations rr. 1.15 and cls 820.211(2)(a) and 820.221 of Schedule 2.
Cases cited: He v Minister for Immigration and Border Protection [2017] FCAFC 206. Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 22 December 2022 Date of hearing: The matter was decided on the papers. Place: Brisbane Counsel for the Applicant: Mr L Karp Solicitor for the Applicant: MY.T.Nguyen Solicitors Counsel for the First Respondent: Mr J Byrnes Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1565 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THANH DUC DUONG
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
27 June 2023
IT IS ORDERED THAT
1.The Amended Application for Review filed on 26 April 2022 be granted.
2.The decision of the Administrative Appeals Tribunal made on 18 April 2018 be quashed.
3.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
4.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 18 April 2018.
5.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.00.
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 EGAN
Introduction
The applicant is a citizen of Vietnam who applied for a Partner (Temporary) (Class UK) visa on 21 May 2015 pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant relied upon what was asserted by him to be his relationship with his sponsor. A delegate of the Minister refused such application.
The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’). The applicant appeared before the Tribunal on 18 April 2018, at which time he gave evidence and presented arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s uncle, the sponsor’s father, and a friend of the applicant.
Clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations1994 (‘the Regulations’) required that at the time the visa application was made, and at the time of the decision, the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident. The applicant claimed to be the spouse of his sponsor who was an Australian citizen.
The word ‘spouse’ was defined in s. 5F of the Act, and relevantly provided as follows:
“5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person 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 husband and wife 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.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”
Regulation 1.15A of the Regulations was a regulation made pursuant to the provisions of s. 5F(3) of the Act. A mandatory obligation was imposed upon the Minister to consider certain matters. Such regulation provided as follows:
“1.15A
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) 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.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).”
At [9] of its reasons, the Tribunal accepted that the applicant and his sponsor were married to each other under a marriage that was valid for the purposes of s. 5F(2)(a) of the Act.
On 30 April 2018, the Tribunal affirmed the decision of the delegate.
Grounds of Review
At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 26 April 2022, the grounds of which were as follows:
“Grounds of the Application
1.The Tribunal failed to make a finding that it was required by law to make on;
(a)The extent of pooling of financial resources, that being an aspect of the financial aspects of the marital relationship of which the Tribunal was required to make a finding (Migration Regulation 1.15A(3)(a)(iii);
(b)The nature of the marital household (Reg 1.15A(3)(b)), and, in that respect it also failed to make findings on the matters in Reg 1.15A(3)(b)(ii) and (iii), being
(i) The living arrangements of the parties and
(ii) Any sharing of responsibility for housework.
those being matters of which it was required by law to make findings.
(c)All matters under the heading, “Social aspects of the relationship (reg 1.15A(3)(c)(i) (ii) and (iii), being.
(i)Whether the parties represent themselves to others as being married to each other.
(ii)The opinions of friends and acquaintances as to the nature of the relationship, and,
(iii)The basis upon which the parties undertake joint social activities.
Those being matters of which it was required by law to make findings.
(d)The duration of the relationship, the length of time that the parties had lived together and whether they saw the relationship as being long term (Reg 1.15A(3)(d)(i), (ii) and (iv)), those being matters required to be considered and to be the subject of findings under the heading, “The nature of the persons’ commitment to each other”.”
(Underlining Omitted).
It was submitted on behalf of the applicant that the Tribunal had failed to make findings as to the following:
(a)The extent of any pooling of financial resources as required by Reg. 1.15A(3)(a)(iii);
(b)The nature of the household and specifically, the living arrangements of the parties and any sharing of responsibility for housework as required by Reg 1.15A(3)(b)(ii) and (iii);
(c)The social aspects of the relationship and specifically, whether the parties represented themselves to other people as being married to each other and the opinion of the persons friends and acquaintances about the nature of the relationship and any basis on which the parties planned and undertook social activities as required by Reg. 1.15A(3)(c)(i),(ii) and (iii);
(d)The nature of the commitment of the applicant and his sponsor to each other and specifically, the duration of the relationship and the length of time that they had lived together and whether they saw the relationship as being long-term as required by Reg.1.15A(3)(d)(i),(ii) and (iv).
Counsel for the applicant relied upon the decision of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206, and particularly at [48] – [50], [52], [76] – [79] and [86] – [87] which relevantly provided as follows:
“[48]Regulation 1.15A(2) requires that when the Minister determines 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 subregulation (3)”.
[49]Regulation 1.15A(3) then sets out four principal matters in paragraphs (a) to (d): 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) also sets out various specific matters, fifteen in total, identified within paragraphs (a) to (d) and numbered with Roman numerals.
[50]The Minister is required to consider each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3), and any other relevant circumstances of the relationship.
…
[52]The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider: see Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 at [51]. This requires a decision-maker to bring an active intellectual process to each of those matters: Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at [462], [476], [495]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45] (and the authorities cited therein). In other words, the decision-maker must actively think about each such matter. Further, the term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant matters: Bondelmonte v Bondelmonte (2017) 341 ALR 179; [2017] HCA 8 at [43]. The requirement to give proper, genuine and realistic consideration to a matter necessarily incorporates the application of an active intellectual process. These authorities do not suggest that a requirement to “consider” a matter may not require a decision-maker to do more in an appropriate statutory context.
…
[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. For example, in respect of “the nature of the household”, the Tribunal must ask: (i) whether there are children and whether there is any joint responsibility for their care and support; (ii)what the living arrangements of the persons are; and (iii) whether and to what extent there is sharing of the responsibility for housework.
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 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)-(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.
[78]The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.
[79]The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs[1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide 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) in Roman numerals, 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 of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).
...
[86]Regulation 1.15A(3)(c)(ii) requires the Tribunal to consider “the opinion of the persons’ friends and acquaintances about the nature of the relationship”. The Tribunal noted that Ms He and Mr Xu had provided evidence from family members and others attesting to their relationship. The Tribunal referred to evidence from Mr Xu’s ex-wife and his son. The Tribunal’s reasons reveal no specific findings as to whether it accepted or rejected that evidence, or whether it was unable to reach a conclusion upon that evidence. However, this is not a case in which it should be inferred that the Tribunal failed to make a finding upon the matter as part of its mental process involved in making its ultimate decision. The Tribunal stated that it was not prepared to accept the evidence of Ms He and Mr Xu as credible. It follows from that finding that the Tribunal was not prepared to accept the evidence of the witnesses as reliable. When the reasons are read as whole, it should not be inferred that the Tribunal failed to make a finding upon the relevant matter.
[87]For these reasons, the appellants’ first ground of appeal must be rejected. That is not to say that we endorse the Tribunal’s written statement as a model of well-written reasons. As was said in Salahuddin at [23] and [31], where a statute requires that consideration be given to specified matters, it is preferable for a decision-maker to expressly refer to such matters.”
It has been held that each of the matters as set out in r. 1.15A(3) were mandatory relevant considerations about which the Court was required to make findings.[1]
[1] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485 per Button J at [32].
As to Ground 1(a), the Tribunal dealt with such matters at [10] – [14] of its reasons as follows:
“[10]The Tribunal has considered the financial aspects of the relationship including joint ownership of real estate and of major assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and the basis of any sharing of day-to-day household expenses.
[11]The applicant submitted copies of bank statements of the parties' joint bank account for the period 23 -January 2015 to 13 August 2016 and from 16 November to 23 July 2017and for the sponsor's personal account from 23 March 2017 to 22 June 2017.
[12]The Tribunal heard evidence that the applicant works part-time as an assistant to a tiler. The sponsor works as a freelance videographer/photographer once or twice a month and works approximately four days per month. The Tribunal heard that the parties pool and share their income. The applicant gets paid in cash. They have no assets aside from a car that is registered in the applicant's name. The Tribunal heard that although they have a joint bank account, they mainly use cash although they do sometimes pay for household and other items, such as private health insurance, from the joint account. The sponsor also has two savings accounts, one of which is a business account.
[13]The applicant submitted Vodaphone invoices for his mobile phone service, a copy of the registration certificate in respect of his car and some utility statements in the name of his father-in-law at the address the applicant claims to live with the sponsor and her family. The Tribunal did not give these any weight because they do not provide evidentiary support to the genuineness of the relationship between the parties.
[14]The applicant submitted a copy of the private health insurance accounts that refers to both parties at the same residential address and a copy of his taxation return for the financial year ending June 2017 which lists the sponsor as his spouse. The Tribunal gave these documents some weight.”
It was submitted on behalf of the first respondent that the Tribunal had fulfilled its duty by expressly referring to matters covered by r. 1.15A(3)(a). The Court does not accept such submission. The fact that the Tribunal recorded aspects of the financial relationship between the applicant and his sponsor did not constitute evidence of the Tribunal having considered the import of such matters. The reasons of the Tribunal do not disclose that it intellectually engaged upon a consideration of the combined effect and totality of such matters. That the Tribunal merely recited the fact of the evidence before it did not enable this Court to infer that it relevantly considered such evidence in any meaningful way, that being particularly so in circumstances where no finding one way or the other was made by the Tribunal in respect of such evidence, and how it affected the Tribunal’s decision making processes. The reasons of the Tribunal at [37] again largely recited the evidence before it without the descending to the making of a finding. Ground 1(a) has been made out.
As to Ground 1(b), the Tribunal dealt with such matters at [15] – [17] of its reasons as follows:
“[15]The Tribunal considered the nature of the household including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
[16]The Tribunal heard consistent evidence that the parties live with the sponsor's father, his wife and their other children in their three bedroom townhouse. The parties gave consistent evidence about the use of space within the home and the sharing of household tasks.
[17]The applicant provided receipts for the purchase of a number of household items from May 2016 and March 2015. The Tribunal did not give these receipts significant weight as they only demonstrate that the particular items have been purchased from those stores, not that the items have been used in their relationship.”
Nowhere in the Tribunal’s reasons at [15] – [17] did the Tribunal relevantly make any finding based upon the evidence before it. There was no demonstrated analysis by the Tribunal of the effect that such evidence had upon its decision making processes. The reasons were formulaic. There was no relevant consideration of the matters under r. 1.15A(3)(b)(ii) and (iii) under the heading ‘Findings’ at [36] – [40] of the Tribunal’s reasons. The Court finds that the Tribunal merely recited the fact of the evidence before it, and that by doing so, the Court was unable to infer that the Tribunal had relevantly considered such evidence in any meaningful way, that being particularly so in circumstances where no finding one way or the other had been made by the Tribunal in respect of such evidence. There was no analysis by the Tribunal as to how it affected the Tribunal’s decision making processes. Ground 1(b) has been made out.
As to Ground 1(c), the Tribunal dealt with such matters at [18] – [29] of its reasons. The Tribunal did there set out with particularity how it was dissatisfied with the evidence of the applicant, his sponsor and other witnesses, specifically referring to inconsistencies about matters which it found would not have occurred had the evidence not been either rehearsed or manufactured. The Tribunal appropriately set out the reasons why it was not satisfied that the applicant had fulfilled the requirements of r. 1.15A(3)(c)(i),(ii) and (iii) of the Regulations. The reasons of the Tribunal at [38] and [39] are supportive of the Tribunal’s adverse findings. Ground 1(c) has not been made out. Though that was the case, the averse findings of the Tribunal about inconsistencies in the evidence was confined to this ground, and were unable to be accepted as applying to the other grounds so as to found a basis for the rejection of the applicant’s relevant claims in those respects.
As to Ground 1(d), the Tribunal dealt with such matters at [30] – [35] of its reasons as follows:
“[30]The Tribunal has considered the nature of persons' commitment to each other including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
[31]The Tribunal is satisfied that the parties met in Christmas 2013 and married in May 2014.
[32]The Tribunal asked both the applicant and the sponsor about their plans for the future. The applicant responded by firstly stating that when his migration status is settled, he plans to visit his family in Hanoi as he has not had an opportunity to visit them since he came to Australia. He stated that he would like to have an official marriage at his parent's home. The Tribunal prompted him to talk further about their joint plans. He stated that he wants to obtain a stable job, but first of all he hopes that status is regularised.
[33]The Tribunal asked the applicant if he and the sponsor had talked about having children. He stated they had talked about having children but not about timing. The applicant stated that they had not used contraception since they married. The Tribunal found it difficult to reconcile these statements. The applicant stated that they wanted a maximum of two children and he was indifferent as to whether they were boys or girls.
[34]In discussing what plans they had made together, the sponsor referred to her wanting to obtain a full-time job and to lift the financial burden off her family. She stated that she would like two children but that the applicant doesn't mind how many children they have.
[35]Both parties referred to some specific but limited aspects of emotional support and companionship they provide each other. The applicant stated that he supported then sponsor while she was studying and that he understood the depths of her grief after her mother when she was 13 years of age. He stated that when he was sick, she prepared some special traditional food and medicine for him. The sponsor stated that the applicant listens to her and helps her deal with her stresses and referred to his concerns about his mother.”
The Court finds that at [30] – [35] of its reasons the Tribunal failed to set out how it had intellectually engaged with the matters required to be addressed under r. 1.15A(3)(d)(i), (ii) and (iv). Again, the Tribunal merely referred to the evidence before it without descending to an analysis of such evidence. Its reasons at [39] did not constitute a basis for the Court inferring that the Tribunal had forensically considered and weighed up the inconsistencies said to be constituted by each of the applicant and sponsor. The Court finds that though the Tribunal had put some weight upon how the applicant and the sponsor had individually stated how they each wanted their future to unfold, as opposed to their having recited what they had each agreed to be their future path, the Tribunal had failed to analyse why the evidence was slightly different, or otherwise address evidence about issues which was supportive of the applicant’s claims. The Court finds that Ground 1(d) has been made out.
Having found that Grounds 1(a), (b) and (d) have been made out, jurisdictional error has been established on the part of the Tribunal.
The decision of the Tribunal must accordingly be quashed and it is so ordered.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 27 June 2023
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