MIGRATION – appeal from Federal Circuit Court of Australia – whether primary judge erred in finding that the Tribunal considered all relevant circumstances – whether Tribunal must make findings upon all matters in reg 1.15A(3) of the Migration Regulations 1994 (Cth) – whether Tribunal failed to make necessary findings – appeal dismissed
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
91
Counsel for the Appellants:
Mr LJ Karp
Solicitor for the Appellants:
Parish Patience Immigration Lawyers
Counsel for the First Respondent:
Mr P Knowles
Solicitor for the First Respondent:
DLA Piper Australia
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
He v MIBP [2017] FCAFC 206
Case
[2017] FCAFC 206
Decision Date
CaseChat Overview and Summary
The case of He v MIBP involves an appeal by the appellants against the decision of the Federal Circuit Court of Australia. The primary issue at hand was whether the Tribunal had erred in determining that it had considered all relevant circumstances and whether it was necessary for the Tribunal to make findings on all matters stipulated in regulation 1.15A(3) of the Migration Regulations 1994 (Cth). The central question for the court was whether the Tribunal's failure to make certain findings constituted an error, specifically in relation to the pooling of financial resources, living arrangements, and evidence attesting to the relationship.
The court examined the statutory framework and regulatory requirements, particularly focusing on the obligations under regulation 1.15A. The Tribunal's role, as the court interpreted it, was to assess the genuineness of the relationship and the satisfaction of specific criteria under the Act. The court noted that while the Tribunal was required to consider all relevant circumstances, it was not mandated to make explicit findings on each regulatory matter. The court held that the Tribunal's approach was consistent with the legislative intent, and that the absence of specific findings did not necessarily indicate an omission to consider the relevant matters. The court also dismissed the argument that the Tribunal had to make findings on all regulatory matters, emphasizing that not every regulatory consideration necessitates a distinct finding.
Ultimately, the court found that there was no error on the part of the primary judge in concluding that the Tribunal had considered all relevant circumstances. The court affirmed that the Tribunal's decision was well-reasoned and did not suffer from the alleged deficiencies in findings. The appeal was thus dismissed, and the appellants were ordered to pay the costs of the first respondent.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 26 February 2013, the Minister’s delegate made a decision to refuse to grant the Residence Partner Visas on the basis that the delegate was not satisfied that the relationship was genuine and continuing. The appellants then filed an application for review of the delegate’s decision with the Tribunal. The Tribunal’s decision In its reasons, the Tribunal summarised the evidence and other material before it. The Tribunal then noted that cl 801.221(2)(c) of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations) requires that, at the time of the decision, the applicant must be the “spouse” of the sponsoring partner. The Tribunal referred to the definition of “spouse” in s 5F of the Act and reg 1.15A of the Regulations and noted that it was required to have regard to all the circumstances of the relationship. The Tribunal went onto say:56.Ms He’s and Mr Xu’s evidence, if accepted at face value, supports a finding that they are in a spousal relationship. They claim to have an intertwining of financial affairs, they have a joint bank account, they claim to cohabitate, they have provided evidence from family and others attesting to the relationship and that both claim that they provide each other with companionship and emotional support and both indicate that the relationship is a long term [one].57.However, as is evident from the history of the application, the tribunal has serious concerns about the credibility of Ms He and Mr Xu when it comes to evidence about their commitment to the relationship. The Tribunal then discussed the concerns it had about the evidence of Ms He and Mr Xu. First, in the course of her application for a protection visa, Ms He had demonstrated that she was prepared to provide false and misleading information to a Tribunal in order to achieve a “migration outcome”. The Tribunal indicated it would take a cautious approach to her evidence. Second, when departmental officers conducted the home visit, the owner of the house appeared not to know Mr Xu and there appeared to be little evidence that Mr Xu resided at that address. The Tribunal noted that the owner had now provided a statutory declaration to the effect that he misunderstood who the departmental officers were looking for and that Ms He and Mr Xu did in fact cohabit at that address. The Tribunal accepted that it was plausible that the owner misunderstood the departmental officers. Third, Mr Xu had travelled to China on three occasions with his ex-wife, while Ms He had travelled to China on one occasion without Mr Xu. The Tribunal said that Mr Xu’s repeated travel with his ex-wife suggested that their relationship had not ended. The Tribunal said that while repeated travel did not necessarily prove that his relationship with his ex-wife was continuing, it “stretches credulity” when looked at in conjunction with the fact that Ms He also travelled to China without Mr Xu. Fourth, the Tribunal noted that the addresses given for Mr Xu in his incoming passenger cards were different to the address nominated as the marital home. Mr Xu gave inconsistent evidence as to who had completed the passenger cards for him. The Tribunal found that even if, as Mr Xu finally claimed, the cards were completed by his ex-wife, it was implausible that, rather than simply asking Mr Xu where he lived, his ex-wife would make up an address for him.
Ratio Decidendi
Legal Principle Established
The Minister submits that the question of cohabitation could potentially be relevant to a finding regarding the genuineness of the relationship, but this does not mean that the Tribunal was required to make a specific finding as to whether the persons were cohabiting at the date of the decision. The Minister submits there was no error on the part of the primary judge in so holding.CONSIDERATIONThe first ground It is necessary to bear in mind the boundaries of the appellants’ argument. Their argument that the Tribunal must make a finding upon each of the relevant matters does not rely on s 368(1)(c) of the Act, which provides that where the Tribunal makes a decision on a review, the Tribunal must make a written statement that “sets out the findings on any material questions of fact”. That provision requires the Tribunal to set out the findings of fact which the Tribunal considered to be material to the decision it has made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [9]-[10], [34], [68]. A court may draw an inference that a matter not mentioned in the written statement was not considered by the Tribunal to be material to its decision: Yusuf at [5], [35], [69], [217]. The appellants do not argue that the absence of findings about relevant matters means that an inference should be drawn that they were not taken into account (in the sense that the Tribunal failed to apply an active mental process to them). The appellants’ argument is more fundamental. Their argument is that the requirement in reg 1.15A(2) that the Minister “consider” the matters set out in reg 1.15A(3) means that the Tribunal (standing in the shoes of the Minister) must make findings upon each of those matters. The argument continues that the Tribunal failed to comply with reg 1.15A(2) by failing to make findings upon the extent of pooling of Ms He’s and Mr Xu’s financial resources, their living arrangements and evidence of others attesting to their relationship. The appellants’ argument that the Minister must make findings upon each of the matters in reg 1.15A(3) necessarily starts with the premise that the Minister is required to take each of those matters into account, in the sense of applying an active mental process to those matters. The Minister cannot be required to make findings upon matters that he or she is not required to think about. That makes it necessary to commence by identifying what matters the Minister must consider.What matters does reg 1.15A(2) and (3) require the Minister to consider? The Tribunal was ultimately required to decide whether it was satisfied that the criteria set out in cl 801.221(2) of Sch 2 were satisfied. One criterion is that the visa applicant is the “spouse” of her sponsor at the time of the decision. This required the Tribunal to determine whether it was satisfied that Ms He and Mr Xu met the definition of “spouse” in section 5F of the Act. That definition requires the Tribunal to be satisfied that the persons are in a “married relationship”, which in turn requires satisfaction as to the existence of the four conditions specified in s 5F(2). Those conditions are: (a)that the persons are married under a marriage valid for the purposes of the Act; (b)that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; (c) that the relationship is genuine and continuing; and (d)that they live together or do not live separately and apart on a permanent basis.