Gracia v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 604
•28 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gracia v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 604
File number(s): SYG 43 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 28 April 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal required to make finding as to whether applicant and sponsor were telling the truth – whether Tribunal required to make finding as to credibility or demeanour of applicant and sponsor – no jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 5CB, 65, 476
Migration Regulations 1994 (Cth) reg 1.09A, cls 820.211(2)(a), 820.221(1)(a) of Schedule 2
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 3 April 2025 Place: Parramatta Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Adrian Joel & Co Counsel for the Respondents: Mr R Sud Solicitor for the Respondents: Mills Oakley ORDERS
SYG 43 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELMER HERNANDEZ GRACIA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
28 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the amount of $6,800.
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 ZIPSER
INTRODUCTION
On 7 January 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 December 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 820.211(2)(a) and 820.221(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) require that at the time the visa application was made, and at the time of decision, “the applicant is the spouse or de facto partner of a person who is”, among options, an Australian citizen.
“De facto partner” is defined in s 5CB of the Act which relevantly provides:
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(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 relation to the reference in s 5CB(3) to provisions in the regulations, reg 1.09A of the Regulations, titled “De facto partner and de facto relationship”, provided in part at the time of the Tribunal’s decision:
(1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(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 in a de facto relationship with 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.
FACTUAL BACKGROUND
The applicant, a citizen of the Philippines, first arrived in Australia in March 1991 on a visitor visa which ceased in June 1991.
Between July 1991 and December 2014, the applicant applied for a protection visa which was refused, and otherwise spent about 17 years in Australia as an unlawful non-citizen.
On 16 December 2014, the applicant was detained by police. His immigration status became clear and he was placed in immigration detention.
On 22 December 2014, the applicant applied for a subclass 820 partner visa based on a claimed de facto relationship with a sponsor who was an Australian citizen.
On 26 October 2016, a delegate of the first respondent refused to grant the visa.
On 8 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 20 September 2019, the Tribunal invited the applicant to attend a hearing on 31 October 2019.
On 31 October 2019 and 13 August 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and a child of the applicant and sponsor.
On 7 December 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a partner visa.
TRIBUNAL’S DECISION
The Tribunal at [16]-[22] considered the background to the relationship between the applicant and sponsor. The applicant and sponsor first married in 1979, and had two children born in 1979 and 1982. In 1983, the applicant and sponsor separated. In 1984, the sponsor married another man. In 1987, that marriage ended in divorce. In 1988, the sponsor became an Australian citizen. In 1989, the applicant and sponsor remarried. In 2007, the sponsor commenced a de facto relationship with another man, MH. In 2011, the applicant and sponsor divorced. In 2012, the sponsor and MH married. The sponsor claims that in October 2013 her relationship with MH ceased, and in December 2013 she and the applicant commenced a de facto relationship.
The Tribunal at [27]-[60] considered the four matters set out in reg 1.09A(3), being:
(a)the financial aspects of the relationship between the applicant and sponsor – at [27]-[39];
(b)the nature of the household – at [40]-[48];
(c)the social aspects of the relationship – at [49]-[53]; and
(d)the nature of the persons’ commitment to each other – at [54]-[60].
In relation to the financial aspects of the relationship, the Tribunal made various findings, including that “there appears … to be evidence countering the existence of the relationship from a financial perspective”, the applicant “had no knowledge of [the sponsor’s] banking arrangements with ING” and did not have an accurate knowledge of the sponsor’s income, “there were significant discrepancies in the financial evidence”, and “the evidence presented to the Tribunal does not permit [the Tribunal] to conclude that [the applicant and sponsor] have integrated their finances to any significant extent”.
In relation to the nature of the household, the Tribunal made various findings, including that “there is very little documentary evidence as to [the applicant and sponsor] sharing a household” save for three short statutory declarations from witnesses in 2015, and the applicant “showed only limited knowledge of [the sponsor’s] work and remuneration”.
In relation to the social aspects of the relationship, the Tribunal made various findings, including that “the absence of any recent witness material from outside the family is a considerable weakness in seeking to assert the existence of the social aspects of a de facto relationship”.
In relation to the nature of the persons’ commitment to each other, the Tribunal made various findings, including that, in relation to the degree of companionship and emotional support the applicant and sponsor claimed to draw from each other, “there are reasons to doubt the claimed degree of companionship and emotional support”, and the claim of the applicant and sponsor that they see their relationship as long-term is “not supported by any material”.
The Tribunal at [62] concluded that “taking into account the evidence on all of the circumstances of the relationship in reg 1.09A(3)(a), (b), (c) and (d), and the other circumstances of the relationship under reg 1.09A(2), [the Tribunal] cannot be satisfied that the claimed relationship is genuine”. It followed that the Tribunal at [63] was “not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made or at the time of this decision”.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 3 April 2025
On 7 January 2021, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. On 26 October 2022, the applicant filed an amended application (Amended Application) which advanced a single ground (reproduced as written):
1.The Second Respondent (Tribunal) made a jurisdictional error in finding that it was not satisfied that the Applicant’s relationship with the sponsor was genuine.
Particulars
a. The Tribunal received written evidence from the Applicant, the sponsor and their children.
b. The Tribunal received oral evidence from the Applicant, the sponsor and their daughter;
c. The written and oral evidence expressed that the Applicant and the sponsor were in a committed relationship with one another;
d. The Tribunal identified deficiencies in the other evidence as to the relationship between the Applicant and the sponsor;
e. The Tribunal did not make a finding of credibility, including based on demeanour, as to the evidence of the Applicant, the sponsor and their children;
f. While the Tribunal is not required to make a credibility finding, including one based on demeanour, in every case, it may be irrational or illogical for the Tribunal to reach its state of satisfaction without doing so: CGA15 v Minister for Immigration [2019] FCAFC 46 ; 268 FCR 362 at [58] – [59]; Minister for Immigration v WZARH [2015] HCA 40; 256 CLR 326 at [40]; ABT17 v Minister for Immigration [2020] HCA 34; 260 CLR 439 at [14], [22] and [25];
g. The Tribunal displayed such irrationality or illogicality in the present case in a manner material to the result.
On 26 October 2022, the applicant also filed a written submission (AS).
Following a period of inactivity, on 18 February 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 3 April 2025.
On 21 March 2025, the first respondent filed a written submission.
Hearing on 3 April 2025
At the hearing in this Court on 3 April 2025, Oliver Jones of counsel appeared for the applicant, and Rohit Sud of counsel appeared for the first respondent. A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Jones and Mr Sud made oral submissions which supplemented their written submissions. The submissions are addressed below.
CONSIDERATION
The nub of the applicant’s contention in the single ground in the Amended Application was explained at AS [24] and [28]-[29] as follows:
[24]It is submitted that illogicality or irrationality arises in the present case due to the absence of particular fact-finding by the Tribunal … The omission in the present case is a conclusion as to whether the applicant, the sponsor and the children were telling the truth or instead had fabricated their evidence.
[28] The present is a case where the Tribunal’s failure to make a finding of credibility, including one based on the demeanour of those that gave oral evidence, gave rise to irrationality or illogicality and thus jurisdictional error …
[29] … The Tribunal left open whether the parties and their witnesses spoke as if telling the truth and whether, as a result, their demeanour could tip the balance in their favour. Moreover, the Tribunal could realistically have chosen to believe the applicant, the sponsor and the daughter in light of their demeanour and this could have overcome the deficiencies in the other evidence it described …
During the hearing, I asked Mr Jones to identify the evidence in respect of which Mr Jones contends the Tribunal was required, in order to avoid illogical or irrational reasoning, to determine whether the applicant, sponsor and children “were telling the truth or instead had fabricated their evidence”: AS [24] Mr Jones identified the following evidence recorded in the Tribunal’s decision:
(a)“Both Mr and Mrs Gracia gave evidence as to the degree of companionship and emotional support they draw from each other” – first sentence of [56].
(b)“The parties claim that they see the relationship as long-term and gave evidence that they decided to grow old together and watch their grandchildren grow up.” – first sentence of [60].
There are a number of difficulties with the applicant’s contention. First, in relation to the evidence in the first sentence of [56], it is not possible to tell from the Tribunal’s summary of the evidence whether the evidence supports or does not support a conclusion that the relationship between the applicant and sponsor was genuine and continuing. For example, the applicant and sponsor may have given evidence that the degree of companionship and emotional support they drew from each other was limited. That the Tribunal in the first sentence of [58] doubted “the claimed degree of companionship and emotional support” does not necessarily mean that the evidence of the applicant and sponsor supported a conclusion that the relationship between the applicant and sponsor was genuine and continuing.
Second, in relation to the evidence in the first sentence of [60], the Tribunal stated in the whole of [60]:
The parties claim that they see the relationship as long-term and gave evidence that they have decided to grow old together and watch their grandchildren grow up. Those claims are not supported by any material such as evidence of the acquisition of joint assets, conferral of beneficial interests on each other, or wills.
It appears from the first sentence of [60] that the applicant and sponsor gave this evidence at the hearing in the Tribunal on 31 October 2019 or 13 August 2020, although it is unclear on which day. The Tribunal at [63] found that it was not satisfied that the requirements of s 5CB(2) were met:
(a)at the time the visa application was made in December 2014; and
(b)at the time of the Tribunal’s decision in December 2020.
Whether or not the applicant and sponsor gave the evidence in the first sentence of [60] in October 2019 or August 2020, Mr Jones did not explain how this evidence, which concerned the parties’ state of mind in October 2019 or August 2020, could affect an assessment of whether the relationship was genuine at the time the visa application was made in December 2014.
Third, Mr Jones could not identify a judgment of a federal court in a judicial review application of a decision made under the Act in which the court found that the administrative decision was infected by jurisdictional error because the decision-maker did not, in respect of evidence given by the applicant or another witness
(a)make a finding as to whether it accepted the evidence as true; or
(b)more broadly make a credibility finding in respect of the applicant or witness.
Fourth, as Mr Jones acknowledged, in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [14] the High Court stated:
Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker. That has long been recognised and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour”.
There might possibly be a case where, in the absence of “objectively established facts” or “the apparent logic of events”, it is desirable for a decision-maker to “make a credibility finding” (particular (f) of ground 1 of Amended Application) concerning the applicant, or make a finding as to whether it accepts as true some evidence given by an applicant of an observation or their state of mind. But, in the present case, the Tribunal in the second sentence of [60] relied on “objectively established facts”, being the absence of “any material such as evidence of the acquisition of joint assets, conferral of beneficial interests on each other, or wills”, to cast doubt on the evidence of the applicant and sponsor given at the hearing before the Tribunal concerning their state of mind. Subject to one qualification, I agree with the first respondent’s written submission that “it was not logically necessary for the Tribunal to make a finding in relation to credibility in order to reject the applicant and his witness’s subjective evidence by reference to objective evidence”. The qualification is that, in relation to the evidence of the applicant and sponsor concerning their state of mind in the first sentence of [60], it appears to me that the Tribunal did not reject this evidence, but merely recorded, for reasons explained in the second sentence of [60], “doubts” (see first sentence of [61]) about the evidence.
Fifth, Mr Jones’ written submission appeared to contend that the Tribunal was required to make a credibility finding concerning all oral evidence given by the applicant and other witnesses. Regulation 1.09A of the Regulations requires a decision-maker to consider a range of specified matters in determining whether the applicant and sponsor “have a mutual commitment to a shared life to the exclusion of all others” and whether “the relationship between them is genuine and continuing”. Many of the specified matters involve consideration of documentary and objective evidence. It would be odd if a decision-maker was required to assess the credibility of all oral evidence given by the applicant and other witnesses concerning these matters.
Sixth, as explained in paragraph 28 above, Mr Jones’ oral submissions appeared to narrow the contention in ground 1 to the evidence in the first sentences of [56] and [60]. By these sentences, the Tribunal considered the matters in reg 1.09A(3)(d)(iii) and (iv). There is nothing in reg 1.09A(3)(d)(iii) or (iv) which suggests the Tribunal is required to make a finding as to whether or not, in respect of oral evidence given by the applicant and other witnesses concerning the matters in reg 1.09A(3)(d)(iii) or (iv), they “were telling the truth or instead had fabricated their evidence”: AS [24].
For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal’s decision. Since ground 1 is the single ground in the Amended Application, the application must be dismissed.
COSTS
Mr Sud sought costs in the amount of $6,800 if the application was dismissed. Mr Jones did not oppose this amount. I will make an order in this amount.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 28 April 2025
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