Jiang v Minister for Immigration
[2019] FCCA 728
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIANG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 728 |
| Catchwords: MIGRATION – Refusal of application for partner visa – whether Administrative Appeals Tribunal failed to take into account relevant considerations, took into account irrelevant considerations or erred in relation to the weight it gave to particular matters or the decision was affected by legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359AA Migration Regulations 1994 (Cth), reg.1.15A, cls.820.211 and 820.211 in Sch 2 |
| Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] 2 All ER 680 |
| Applicant: | XIAN-BI JIANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1099 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 6 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Oliveri |
| Solicitors for the Applicant: | Phoenix Attorneys Lawyers |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1099 of 2016
| XIAN-BI JIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 31 March 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Partner visa.
The Applicant, Ms Jiang, a citizen of China, arrived in Australia in April 2012 as the holder of a tourist visa. She subsequently held student visas and undertook English language studies.
Ms Jiang lodged an application for a Partner visa on 14 November 2013. Her evidence, and that of her husband, Mr Staples, was that they met at his home in January 2013 after being introduced by a mutual friend. Mr Staples offered to help her to learn English and they formed a relationship. She moved in with him in August 2013. They married in Sydney on 31 October 2013.
Mr Staples and Ms Jiang provided various documents to the Department of Immigration in support of the application, including documents regarding identity and marital status, personal statements as to their relationship, joint bank account statements, photographs, her telephone records showing telephone calls to him and statutory declarations from a friend and neighbours.
On 12 January 2015, a delegate of the First Respondent refused the visa application. The delegate found that Ms Jiang did not meet the definition of spouse in s.5F of the Migration Act 1958 (Cth) (the Act) and hence did not meet the time of application criterion for a temporary partner visa in cl.820.211(2)(a) in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations). As she was not the holder of a Subclass 820 visa she did not meet the requirements for a Subclass 801 Partner (Residence) visa.
Ms Jiang sought review by the Tribunal. She and her husband attended a Tribunal hearing on 4 March 2016. Her migration agent provided additional documents to the Tribunal, including further photographs, bank account statements, telephone records correspondence between Mr Staples and Centrelink, supporting statements, statutory declarations and pre- and post-hearing submissions.
The Statutory Provisions
Under s.5F(1) of the Act a person is the spouse of another person if, under s.5F(2), the two persons are in a married relationship. Section 5F(2) provides:
2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
Section 5F(3) provides that the Regulations may make provision in relation to the determination of whether one or more of the conditions in s.5F(2)(a), (b), (c) and (d) exist.
Regulation 1.15A is relevantly as follows:
(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.
The Tribunal Decision
In its reasons for decision, the Tribunal described the personal circumstances of Ms Jiang and Mr Staples. It observed that Ms Jiang was (at the time of the decision) a 52 year old Chinese national who had had two previous marriages, that her first husband died and her second marriage ended in divorce and that she had one adult son from her first marriage who lived in China. The Tribunal recorded that Ms Jiang travelled to Australia on a tourist visa in April 2012, subsequently held student visas which ceased in November 2013 and was self-employed as a cleaner.
In describing Mr Staples, the Tribunal referred to the fact that he was 88 years old, an Australian citizen by birth who had two previous marriages, both of which had ended in divorce, three adult children who lived in Australia and that he received the age pension.
The Tribunal stated that the issue before it was whether Ms Jiang was in a genuine and continuing spousal relationship with Mr Staples at the time of the visa application and continued to be in a genuine spousal relationship at the time of decision (see cls.820.211 and 820.221 in Schedule 2 to the Regulations). It stated that it had considered all the documents in the departmental and Tribunal files and the oral evidence of the couple, as well as information provided after the hearing.
The Tribunal was of the view that there were some inconsistencies in the oral evidence given at the hearing, which it stated it had put to Ms Jiang under s.359AA of the Act. There is no transcript of the Tribunal hearing in evidence. The only evidence of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons. No issue was raised in these proceedings about the conduct of the Tribunal hearing.
The “inconsistencies” in oral evidence identified by the Tribunal were that Ms Jiang had said at the hearing that Mr Staples’ friend (who was the best man at their wedding) had died around 12 months before the hearing and that he had committed suicide, whereas Mr Staples told the Tribunal that his friend had died from melanoma; and that Ms Jiang had said that she made deposits into the couple’s joint bank account and that the money was from her income from her cleaning business, while Mr Staples had told the Tribunal that until recently they had each contributed $200 per fortnight from their income and that he had deposited the money in cash at the local Commonwealth Bank. He stated that his pension had recently been reduced due to Ms Jiang’s income so he no longer contributed to the joint account.
The Tribunal recorded that in explanation for the first inconsistency Ms Jiang had told it that she had no idea how Mr Staples’ friend had died and had asked the Tribunal how she was supposed to know. She also told the Tribunal that the friend’s death was not detected until one week after he died. In relation to the joint account, Ms Jiang was recorded as telling the Tribunal that she and Mr Staples had previously contributed $200 each to the joint account, but that then she began paying all the money.
At the request of the Applicant’s migration agent, the Tribunal allowed additional time for a further response to the information it had put to Ms Jiang at the hearing.
The Tribunal acknowledged that in a subsequent statutory declaration Ms Jiang had explained that the body of Mr Staples’ friend was found four days after his death and that before he died he was suffering from melanoma, but stated that people had told her that he committed suicide. She also claimed that before he died, the friend had told Mr Staples that he would see him the next day, so Mr Staples did not believe that his friend had committed suicide.
As the Tribunal recorded, Ms Jiang also explained in her statutory declaration that she and Mr Staples had previously each deposited $200 a fortnight into the joint account, but because Mr Staples’ income from Centrelink had decreased, she now contributed $400 a fortnight to the joint account.
Ms Jiang addressed a concern expressed by the Tribunal at the hearing as to whether photographs of the couple shopping were taken merely to create evidence. In her statutory declaration she suggested that the Tribunal had expressed the view that no “normal” people would take pictures while shopping. Ms Jiang explained that she had taken photographs in response to the delegate’s concern that there was inadequate evidence, in circumstances where they had limited social activities due to Mr Staples’ age. She claimed she had provided as much evidence as possible to indicate their life together. Ms Jiang stated that her migration agent also operated a travel agency (apparently in explanation for the fact that a cruise had been booked for the couple through the migration agent). She claimed she was extremely nervous at the hearing and that she had a bad memory problem. She expressed concern that if the application was rejected Mr Staples would be very upset.
Mr Staples also provided a post-hearing statutory declaration addressing concerns the Tribunal had raised about his evidence.
The Tribunal accepted that Ms Jiang may have been confused about the questioning at the hearing regarding the source of the deposits into the joint account, so placed no weight on that evidence. However it did not consider that Ms Jiang’s response in relation to the death of Mr Staples’ friend “adequately explained that discrepancy”. The Tribunal stated that it had placed some weight on that evidence.
The Tribunal addressed the contention that the parties had some difficulties with their memories. It accepted that Mr Staples may have some memory problems, given his age. However, in the absence of any supporting medical evidence, the Tribunal was not prepared to accept that Ms Jiang had any difficulties with her memory. It did not accept that Ms Jiang’s ability to answer questions at the hearing was impaired by nervousness.
The Tribunal considered whether it was satisfied that Ms Jiang was the spouse of Mr Staples at the time of application within cl.820.211(2)(a) in Schedule 2 to the Regulations and continued to satisfy that requirement at the time of decision (see cl.820.221(1)). The Tribunal referred to the definition of spouse in s.5F of the Act and observed that in forming an opinion as to whether the requirements of s.5F(2) were met, regard must be had to all the circumstances of the relationship, including evidence of the financial and social aspects, the nature of the parties’ household and their commitment to each other as set out in reg.1.15A(3) of the Regulations.
In the absence of any evidence to the contrary, the Tribunal accepted that the marriage between Ms Jiang and Mr Staples was a valid marriage for the purposes of the Act as required by s.5F(2)(a) of the Act.
Under the heading “Consideration of all aspects of the parties’ relationship” the Tribunal discussed the evidence in relation to each of paragraphs (a) to (d) of reg.1.15A(3).
In relation to “Financial aspects” the Tribunal stated:
24. Ms Jiang and Mr Staples do not have any joint assets or liabilities. Their accommodation is rented from the Department of Housing and the lease is in Mr Staples’ name. Ms Jiang and Mr Staples opened a joint bank account after their marriage and both parties contribute to the account. The bank account statements provided show expenditure at local supermarkets and food outlets. The vast majority of deposits are made in cash. The balance of the account is currently around $2,000. Ms Jiang gave evidence that she has around $20,000 in her personal savings account; she said she brought that money with her from China. The Tribunal asked Ms Jiang if she has another account given the ANZ savings account shows repeated transfers from her. Ms Jiang denied that she has any other bank accounts. Mr Staples gave evidence that he has around $1,000 in savings.
The Tribunal was of the view that at the hearing the parties had demonstrated a “limited understanding” of one another’s financial circumstances. It observed that Ms Jiang had said that Mr Staples was receiving more than $500 a fortnight in age pension from Centrelink, whereas he had said his pension was now $329 a fortnight. Mr Staples had initially said he did not know anything about Ms Jiang’s bank accounts or savings, but when asked about the $20,000 in her ANZ savings account, Mr Staples had said that he was aware that she had those savings, that he had no idea where the money came from, but that she brought it from China and so he regarded it as her money. He did not know how she spent her money.
The Tribunal nonetheless accepted that the parties had shared their day to day household expenditure since they began cohabiting in August 2013.
Under the heading “Nature of the household” the Tribunal accepted that the parties had lived together at Pyrmont since August 2013; that Ms Jiang did the majority of the household chores and assisted Mr Staples with some self-care tasks, including showering; that they did not have any joint responsibility for the care and support of children; and that Ms Jiang worked casually as a cleaner, while Mr Staples was retired.
The Tribunal stated that it had placed “some weight” on the establishment of a joint household.
In considering the “Social aspects of the relationship” the Tribunal referred to the parties’ evidence that some close friends had attended their wedding but that, apart from Mr Staples’ best man, the other guests were Ms Jiang’s friends. The Tribunal acknowledged that photographs of the wedding celebration had been provided to the Department. The Tribunal recorded that, other than in relation to the wedding, the vast majority of the photographs provided showed only Ms Jiang and Mr Staples. It found that Ms Jiang had been unable to name the majority of the people in the group photographs, including people she had described as their close friends. The Tribunal observed that many of the photographs showed the parties shopping together in supermarkets, but that Ms Jiang had denied they were contrived to support the application. Mr Staples was recorded as having said that it was Ms Jiang’s idea to take the photographs and that they had asked passers-by to assist. He had sometimes complained about the number of photographs she had taken of them together in supermarkets but thought she must want some photographs of them together. The Tribunal acknowledged that in her post-hearing statutory declaration Ms Jiang had said that she provided the photographs to indicate the parties’ joint life together. The Tribunal accepted, on the basis of the photographs provided, that “the parties go shopping and eat out together”.
The Tribunal also acknowledged that the parties had given “consistent evidence” that Ms Jiang had advised her family members in China of their marriage. However, the Tribunal stated that it “did not find that evidence convincing” and that it was “not prepared to accept it in the absence of any independent corroboration”.
The Tribunal accepted that Mr Staples had not had any contact with his sister or three children for many years, so that they were unaware of the parties’ relationship or marriage. It accepted that the statutory declarations from friends and neighbours indicated that the parties held themselves out to the deponents as being in a spousal relationship. It referred to the parties’ evidence that they went on a short cruise together in February 2016 which cost $900 and was paid for by Ms Jiang.
The Tribunal found that the parties had given “consistent and convincing” evidence that Mr Staples had advised the Department of Housing and Centrelink of their marriage. It found that he had done so and that his age pension had been reduced due to Ms Jiang’s income from employment. However the Tribunal stated:
34. The Tribunal accepts that there is some social recognition of the parties’ relationship amongst a small group of their friends and neighbours. The Tribunal also accepts that they hold themselves out as married to government departments. There is little independent evidence to indicate that the relationship is recognised more broadly, including by family members. The Tribunal is concerned that neither party was able to properly identify the majority of third parties shown in the photographs provided. The Tribunal accepts that Mr Staples has some problems with his eyesight and this may well have resulted in him being unable to identify his friends. However, the difficulty experienced by Ms Jiang has not been adequately explained.
The Tribunal addressed the nature of the couple’s “commitment to each other” in more detail. It recorded that the couple had been married for almost two and a half years at the time of decision and in this context repeated its acceptance that they had lived together since August 2013. However, it continued:
36. The Tribunal has placed weight on the inconsistency regarding the cause of death of Mr Staples’ close friend […] and considers it significant that Ms Jiang was unaware of this given that [he] was the best man at the parties’ wedding. Ms Jiang said that she did not attend [his] funeral because she does not speak English. At first Mr Staples said that Ms Jiang was busy at work, but he then told the Tribunal that he was not sure why Ms Jiang had not attended. She had told him that she did not want to go. Ms Jiang described [the best man] as a good friend and said that they had coffee with him every two or three days prior to his death. Ms Jiang’s reasons for not attending [his] funeral were unconvincing. The Tribunal considers it significant that she did not support Mr Staples at this event given his close relationship with [his best man].
37. Given that the parties do not speak a common language, the Tribunal is concerned about their ability to communicate with one another in a meaningful way. Ms Jiang gave evidence that she speaks limited English and Mr Staples can only speak a few words of Mandarin. The parties gave evidence that Mr Staples is teaching Ms Jiang to speak English. Ms Jiang said that they sometimes used a translating machine to speak with one another.
38. The Tribunal was concerned about the lack of knowledge that the parties demonstrated about one another at the hearing. For example:
·Mr Staples said that he thinks Ms Jiang has two or three children, including a boy and a girl. However, Ms Jiang has one child; a son. Mr Staples told the Tribunal that Ms Jiang visited her son in Taiwan at the end of 2013, but he did not know her son’s name. Ms Jiang gave evidence that she has regular contact with her son and hopes to use some of her savings to bring him to Australia. In his statutory declaration received after the hearing, Mr Staples said that he has poor hearing and was confused. The Tribunal does not accept that Mr Staples did not hear or understand the Tribunal’s questioning about Ms Jiang’s children.
·Mr Staples did not know how many siblings Ms Jiang has.
·Ms Jiang said that Mr Staples has no siblings, but he has a sister called Joyce.
·Ms Jiang demonstrated a very limited knowledge of Mr Staples’ past relationships and was unaware that Mr Staples had divorced his second wife in September 2013, immediately prior to the parties’ marriage.
·Ms Jiang did not know the names of any of Mr Staples’ three children.
·Mr Staples knew very little about Ms Jiang’s cleaning business and told the Tribunal that he is not interested.
39. The Tribunal accepts that Mr Staples has not had any contact with his family for some years, but given the length of the parties’ relationship it would have expected Ms Jiang to be aware of his children’s names and also that he has a sister. For the same reason it is significant that Mr Staples did not know how many children or siblings Ms Jiang has. They presented as having very little interest in one another’s families or backgrounds. However, Mr Staples was aware that Ms Jiang’s mother is alive and he volunteered her age.
40. The Tribunal has taken into account the witness statutory declarations provided by neighbours and mutual friends, including those received after the hearing. The witnesses attest to the genuineness of the parties’ relationship and there was a reasonable amount of detail provided. The Tribunal accepts that the parties have formed a close relationship with their elderly neighbour, [Ms D], and have regular contact with her. They also have some contact with another neighbour, [Mr J]. The Tribunal has placed some weight on the supporting evidence from witnesses, but it does not outweigh the other evidence before it.
41. Mr Staples is around 35 years older than Ms Jiang and has a number of significant health problems. The Tribunal accepts that Ms Jiang visits Mr Staples when hospitalised, as evidenced by the photographs provided of her by his bedside, and assists him with self-care tasks such as showering. The Tribunal accepts that Mr Staples is committed to the relationship and is seeking companionship and care from Ms Jiang. However, the Tribunal is not satisfied on the evidence that Ms Jiang is committed to a shared life with Mr Staples as husband and wife to the exclusion of all others.
In conclusion, the Tribunal stated that, given its findings, it was not satisfied that at the time of the application or the decision the parties had a “mutual” commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing.
Notwithstanding its earlier acceptance that the parties had been living together since August 2013, the Tribunal also concluded that it was “not satisfied that the parties live together or do not live separately and apart on a permanent basis”. However no issue was taken with this aspect of the Tribunal’s reasons.
On the basis of these findings, the Tribunal found that Ms Jiang did not meet the elements of the definition of spouse in s.5F(2)(b)-(d) of the Act. It concluded that therefore she did not meet the (time of application) criterion in cl.820.211(2)(a), that there was no evidence that she met any of the alternative subclauses in cl.820.211, and that consequently she could not meet the time of decision criterion in cl.820.221 in Schedule 2 to the Regulations (which requires that the visa applicant continue to meet the requirements of the applicable subclause in cl.820.211).
The Tribunal concluded that Ms Jiang did not satisfy the criteria for the grant of the visa. It affirmed the delegate’s decision not to grant her a Partner visa.
These proceedings
Ms Jiang sought review of the Tribunal decision by application filed on 4 May 2016. There are three grounds in the application, but having regard to the manner in which they were addressed in the Applicant’s submissions, it is convenient to list them together, as follows:
(1) The Tribunal fell into jurisdictional error by failing to take into account or not placing sufficient weight on relevant considerations in its application of Subclass 820 of the Migration Regulations in its decision to affirm the delegate’s decision not to grant the applicant’s (Temporary) (Class UK) visa, in that, it failed to give any or sufficient weight to the following matters despite accepting them as facts:
(i) At the time of the application and decision the parties were validly married to each other as required by the s5F(2)(a) of the Migration Act.
(ii) The parties have shared their day to day household expenses since they began cohabiting in August 2013.
(iii) The parties have lived together at Pyrmont since August 2013.
(iv) The parties have established a joint household.
(v) The parties have a joint bank account.
(vi) The parties go shopping and eat out together.
(vii) There is some social recognition of the parties relationship amongst a small group of their friends and neighbours.
(2) The Tribunal fell into jurisdictional error by taking into account irrelevant considerations in its application of Subclass 820 of the Migration Regulations in its decision to affirm the delegate’s decision not to grant the applicant’s (Temporary) (Class UK) visa, in that, it placed weight in (sic) the following matters:
(a) The applicant did not know the circumstances surrounding the death of her spouse’s friend [Mr M].
(b) The applicant did not go to [Mr M] funeral.
(c) The parties do not have joint assets or liabilities (which is incorrect as the Tribunal acknowledged that they have a joint bank account).
(d) Mr Staples’ best friend, [Mr M] was the only person who attended the parties’ wedding from Mr Staples’ side (ignoring that due to his age, Mr Staples would have had few friends still alive).
(e) Not accepting that the applicant advised her family members in China of the marriage despite the consistent evidence of the parties and no evidence to the contrary.
(f) The parties do not speak a common language.
(g) The parties do not know the siblings or children of the other spouse.
(3) The Tribunal fell into jurisdictional error by reaching a conclusion that does not reasonably follow from the facts and evidence accepted by the Tribunal.
(errors in original)
Applicant’s submissions
In support of the proposition that failing to have regard to relevant considerations or taking into account irrelevant considerations amounted to jurisdictional error (as contended for in grounds 1 and 2) the solicitor for the Applicant relied generally on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [41]; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 cited in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [80] and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.
In support of the proposition that there could be a jurisdictional error where the Tribunal failed to give any or sufficient weight to relevant matters (as pleaded in the alternative in ground 1) or where it placed weight on irrelevant matters (ground 2), the Applicant referred to the remarks of Mason J in Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24 at 41. It was acknowledged his Honour had stated that it was “generally” for the decision-maker (and not the court) to determine the appropriate weight to be given to matters required to be taken into account in exercising a statutory power, but reliance was placed on the fact that after referring to this principle, Mason J had continued at 41:
I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.
Mason J explained that this was a reference to the ground of review considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] 2 All ER 680 as discussed in relation to ground 3.
In submissions in relation to ground 1, the solicitor for the Applicant listed various items of evidence the Tribunal was said to have accepted (which were said to be in Ms Jiang’s “favour”) in considering the specified factors in reg.1.15A(3). In addition to the matters referred to in ground 1, the Applicant suggested that when discussing social aspect of the relationship the Tribunal had accepted, in favour of Ms Jiang, that the parties held themselves out as being in a spousal relationship to a small group of their friends and neighbours; that they gave consistent and convincing evidence that Mr Staples had informed the Department of Housing and Centrelink of the marriage; and that his pension had been reduced due to Ms Jiang’s income.
The Applicant also pointed to the fact that in considering the nature of the couple’s commitment to each other the Tribunal had accepted that at the time of decision they had been married for almost two and a half years and had been living together since August 2013. Further, based on statutory declarations from neighbours and a mutual friend attesting to the genuineness of the relationship in a reasonable amount of detail, it had accepted that the parties had formed a close relationship with one neighbour with whom they had regular contact and had some contact with another neighbour. The Tribunal had also accepted that Mr Staples was around 35 years older than Ms Jiang and had a number of significant health problems and that Ms Jiang visited him when hospitalised and assisted him with self-care tasks, such as showering. The Applicant also referred to the fact that the Tribunal accepted Mr Staples was committed to the relationship and was seeking companionship and care from Ms Jiang.
The Applicant contended that it was apparent that the Tribunal had made positive findings in relation to each of the four mandated considerations in reg.1.15A(3) and submitted that, having made such positive findings, the Tribunal “should” have concluded that the definition of spouse in s.5F of the Act was satisfied. The Applicant submitted that the fact the Tribunal did not reach this conclusion meant that it had not taken into account or had not placed sufficient weight on relevant considerations (as pleaded in ground 1) and hence that it had failed to act in accordance with its statutory obligation in a manner constituting jurisdictional error. The Applicant submitted generally that the Tribunal had clearly reached the “wrong” conclusion and that its decision was affected by jurisdictional error as it had exceeded its jurisdiction or constructively failed to exercise jurisdiction (see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476). It was also asserted generally that the Tribunal had “committed all the errors referred to” in the cases cited. However the Applicant did not seek the opportunity to file any amended application to incorporate grounds other than those relied on in the application.
The Applicant also submitted that insofar as the Tribunal proceeded on the basis that the positive findings in respect of each of the listed factors in reg.1.15A(3) did not outweigh the “other” evidence before it, it was necessary to consider whether the “other” evidence on which the Tribunal had relied consisted of irrelevant considerations.
It was submitted that the statement in reg.1.15A(2) that the Minister “must consider all the circumstances of the relationship” meant that the consideration must be of the relationship and not of anything else. In this context, the Applicant contended that the Tribunal had taken into account or placed weight on irrelevant considerations as listed in ground 2, including matters that had nothing to do with the relationship and nothing to do with any of the four categories of matters listed in reg.1.15A(3).
First, it was submitted that the inconsistencies in the parties’ oral evidence at the hearing in relation to the circumstances surrounding the death of Mr Staples’ friend and the fact that Ms Jiang was uncertain about those circumstances (particular (a) to ground 2) had nothing to do with any of the matters referred to in sub-regulation 1.15A(3)(a)-(d) and were clearly irrelevant to any of those listed matters.
Insofar as the Tribunal had discussed this issue in the context of considering the nature of the couple’s commitment to each other (as provided for in reg.1.15A(3)(d)), the Applicant contended that Ms Jiang’s lack of knowledge of the cause of the friend’s death could not possibly have any effect on her commitment to her husband and that it was difficult to see how not knowing the cause of death of Mr Staples’ friend could have any bearing at all on the relationship between the couple.
The Applicant also submitted that these matters could not outweigh those other aspects of the relationship on which the Tribunal had made positive findings. It was submitted that the Tribunal had misdirected itself by relying on these findings to displace or outweigh the positive findings which it had made in relation to the couple’s commitment to each other.
The Applicant pointed to the fact that in Kayikci v Minister for Immigration and Citizenship [2009] FCA 92; (2009) 107 ALD 112 at [24]–[25] Tamberlin J had placed reliance on the following observations of the Full Court of the Federal Court in Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 144 at [11] in relation to the genuineness of a relationship:
… people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
The Applicant contended that these observations amounted to a clear statement that it was the time of decision that was in issue and that an event that happened some 12 months earlier (the death of Mr Staples’ friend) was not only irrelevant but was also clearly outside the time which should have been considered by the Tribunal.
The Applicant also took issue with the fact that the Tribunal had regard Ms Jiang’s failure to attend the funeral of her husband’s friend (particular (b) to ground 2). It was submitted that it was difficult to see how this was of any relevance to the issue before the Tribunal. The Applicant contended that while the Tribunal had found this failure to be significant because it showed a lack of support for Mr Staples having regard to his close relationship with his best man, there was no evidence that Ms Jiang’s failure to attend the funeral was of any concern to Mr Staples. It was suggested that if the Tribunal was going to attach such significant weight to this matter, it should at least have obtained evidence from Mr Staples as to how he felt about this fact. The Applicant submitted that without such evidence, there was no basis for this finding.
It was pointed out that the friend’s funeral had taken place some 12 months prior to the decision and suggested that the parties were still together at the time of the Tribunal decision. The Applicant submitted that it was clear that her failure to attend the funeral was not a concern to her husband at the time of the Tribunal decision and that in these circumstances the Tribunal had misdirected itself in relying on this finding.
The Applicant submitted that, as referred to in particular (c) to ground 2, the Tribunal’s finding (at paragraph 24 set out at [26] above) that the parties “do not have joint assets or liabilities” was clearly wrong, as she and Mr Staples had an asset consisting of a joint bank account. The Tribunal’s subsequent acknowledgement in the same paragraph that the couple had a joint bank account was said to indicate that it did not consider a joint bank account to be a joint asset. This was said to have led the Tribunal to misdirect itself in respect of reg.1.15A(3)(a), in a manner which amounted to jurisdictional error.
The Applicant contended that the Tribunal’s reliance on the finding that Mr Staples’ friend was the only person who attended the wedding from “his side” (particular (d) to ground 2), ignored the fact that, due to his age, Mr Staples would have had few friends still alive. The Applicant submitted that if the question of who attended the wedding was to be treated as a relevant consideration of any significance, then by failing to take Mr Staples’ situation into account the Tribunal had failed to take into account another relevant consideration. In this context, the Applicant also pointed to the fact that the Tribunal had accepted that Mr Staples was committed to the relationship and submitted that this evidence could not possibly support the contention that Ms Jiang was not committed to the relationship. It was submitted that in relying on this matter against Ms Jiang, the Tribunal had misdirected itself and had fallen into jurisdictional error.
The Applicant’s solicitor addressed the fact that the Tribunal did not accept that Ms Jiang had advised her family members in China of the marriage, despite the consistent evidence of both parties and the absence of any evidence to the contrary (as referred to in particular (e) to ground 2). Issue was taken with the fact that while the Tribunal had stated that it did not find the evidence “convincing” and was not prepared to accept it in the absence of any independent corroboration, it gave no reasons for not finding the evidence convincing despite the fact that both parties gave consistent evidence in this respect. The Applicant submitted that the Tribunal’s failure to give such reasons amounted to jurisdictional error, but did not elaborate on this submission beyond the contention in ground 2 that the Tribunal’s failure to accept this evidence amounted to taking into account an irrelevant consideration.
Insofar as the Tribunal took into account, as part of the reason for rejecting Ms Jiang’s application, the fact that the couple did not speak a common language (particular (f) to ground 2), the Applicant pointed out that the Tribunal had accepted that Mr Staples was committed to the relationship even though the language issue would have applied to both parties equally. It was submitted that in relying on this fact against Ms Jiang, without giving any reasons for differentiating between the parties to the marriage, the Tribunal had misdirected itself and fallen into jurisdictional error.
The final aspect of the Tribunal’s reasoning with which the Applicant took issue under ground 2 was its finding about the parties’ lack of knowledge about each other’s siblings and children (particular (g) to ground 2). It was submitted that this was of no consequence to the relationship, that neither party was interested in those details and again pointed out that the issue applied equally to both parties, yet the Tribunal had accepted that Mr Staples was committed to the relationship.
In essence, it was contended that all the evidence accepted by the Tribunal led to the conclusion that the parties in fact had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Applicant submitted that there was no “other evidence” that could possibly outweigh that evidence and that the items of “other evidence” referred to in ground 2 that were apparently relied on by the Tribunal were irrelevant, such that the conclusion reached by the Tribunal arose from taking into account irrelevant considerations.
In these circumstances, it was submitted that the “other evidence” the Tribunal relied on adversely to Ms Jiang was not to be found in the reasons for decision and hence that the Tribunal’s conclusion did not follow from the facts and evidence disclosed in the reasons.
The solicitor for Ms Jiang explained that the issues raised in the context of grounds 1 and 2 were also relied on in support of ground 3, which was intended to raise a contention of legal unreasonableness based on the illogicality of the Tribunal’s reasoning, in that its conclusion was said not to follow from the facts and evidence it accepted. It was submitted that in all the circumstances the only reasonable conclusion was for the Tribunal to “accept” Ms Jiang’s application.
It was also submitted that it was not open to the Tribunal to make one finding in relation to an issue such as the absence of a common language or knowledge of family members in relation to one party, but not in relation to the other party, at least in the absence of reasons. The Tribunal’s reasons in this respect were said to demonstrate illogicality.
In oral submissions, the solicitor for Ms Jiang suggested that even if the court did not accept that the matters relied on by the Tribunal in rejecting the application were totally irrelevant, it could be satisfied that the Tribunal had given excessive weight to matters which were of no great importance and that it had not given adequate weight to relevant factors which were of great importance and that for these reasons the decision was manifestly unreasonable. Other than Peko-Wallsend, no authority was cited by the Applicant in support of ground 3.
First Respondent’s Submissions
In written submissions the First Respondent addressed the grounds as pleaded. It was submitted that ground 1 did not reveal any jurisdictional error, having regard to the fact that it was for the Tribunal to attribute weight to the evidence before it. The Applicant’s criticism of the weight the Tribunal attached to particular items of evidence was said to seek impermissible merits review. The First Respondent contended that the Tribunal did take into account all the reg.1.15A(3) factors and that it had not failed to take into account any relevant considerations. It was submitted that the suggestion that jurisdictional error was established on this basis or because the Tribunal did not give any or sufficient weight to particular matters as pleaded in ground 1 could not succeed.
In relation to ground 2, the First Respondent submitted that there was nothing in the Act that explicitly or implicitly prohibited any of the matters considered by the Tribunal being taken into account, so that these matters could not be “irrelevant considerations” in the sense considered in Peko-Wallsend at 39 to 42 per Mason J and 55 to 56 per Brennan J.
The First Respondent also contended that it was reasonably open to the Tribunal to place weight on these matters, as they rationally went to the existence of a genuine relationship because they concerned matters of communication and knowledge of each other’s family which common human experience suggested would ordinarily be present in a genuine marriage. It was also pointed out that it was for the Tribunal, and not for the court, to decide whether the Applicant was genuinely committed.
The First Respondent submitted that, contrary to the Applicant’s contention, the fact that reg.1.15A(2) stated that the Minister “must” consider all of the circumstances of the relationship, including the matters set out in sub-regulation (3), did not mean that the Tribunal was limited to consideration of the reg.1.15A(3) factors. It was submitted that even if one took the view that the matters the Tribunal considered must be relevant to the relationship, it was clear that Ms Jiang’s knowledge in relation to the circumstances surrounding the death of her husband’s friend and the fact that she did not go to his funeral could be seen as plainly factually relevant to the level of communication and support between the parties. In turn, this was said to be factually relevant to the existence of a genuine relationship so that these matters could not be said to be something that the Tribunal was prevented from taking into account under the Act and Regulations.
Insofar as the Applicant had submitted that the Tribunal could not take into account something that had occurred before the time of the decision, there was said to be no substance in such a suggestion. It was pointed out that when the Tribunal assessed whether a relationship was genuine at the date of its decision, it did so by reference to facts which would necessarily include past facts.
In relation to the Applicant’s complaint about the Tribunal’s approach to the issue of joint assets, it was submitted that on a fair reading of paragraph 24 of the Tribunal’s reasons, it was clear that the Tribunal had accepted that the couple had a joint bank account and that the statement the first sentence of that paragraph that the couple “did not have any joint assets…” was referring to assets other than simply a bank account.
The First Respondent acknowledged that the Tribunal had not given reasons for not accepting that Ms Jiang had advised her family members in China of the marriage beyond referring to its view that her evidence in that respect was not convincing and that there was no independent corroboration. However it was submitted that the Tribunal’s view that it did not believe that Ms Jiang had a genuine commitment to the relationship provided a foundation for a conclusion that implicitly involved the view that it was implausible that she would have told her relatives about the marriage. It was also submitted that insofar as this issue was raised in the context of a contention of illogicality or irrationality, such a view provided the basis for the Tribunal’s assessment of the implausibility of the Applicant’s evidence in this respect. In any event, it was submitted that this concern did not of itself establish a jurisdictional error.
In relation to the Applicant’s complaint that the fact the couple did not speak a common language and did not know about each other’s siblings or children applied to both parties to the marriage, but was only used adversely in relation to her, the First Respondent submitted that it did not necessarily follow that the issue must be treated in the same way in relation to both the sponsor and the Applicant as they were not in the same situation.
The First Respondent contended that it had not been established that it was illogical or not open to the Tribunal to have regard to matters such as the lack of an ability to communicate in a common language to find that Ms Jiang did not have the requisite commitment and that the relationship was not genuine, but at the same time to accept that Mr Staples was committed to the relationship, having regard to their different situations and the fact that a difficulty with communication could rationally support a finding that a visa applicant was not committed to the relationship. It was said not to follow that just because that issue affected both parties to the marriage this necessarily meant that the Tribunal’s decision was illogical or otherwise contrary to law. A submission to the same effect was made in relation to the parties’ knowledge about each other’s family.
In relation to ground 3, the First Respondent submitted that on its face this ground sought merits review and that this appeared to be confirmed by the Applicant’s submissions, which were said to simply argue with the Tribunal’s conclusion.
The First Respondent suggested that the remark by Mason J in Peko-Wallsend that there could be cases where attribution of insufficient weight or too much weight ultimately made a decision manifestly unreasonable now had to be considered in light of the current state of the law in relation to illogicality or irrationality and legal unreasonableness (which the Applicant did not address).
It was contended that in this instance the only way the Applicant’s arguments could establish jurisdictional error was if the Tribunal’s conclusion was legally illogical or irrational. However it was submitted that to demonstrate relevant illogicality or irrationality in the Tribunal’s findings or conclusions, “extreme” illogicality must be shown, as discussed in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [59]-[61].
The First Respondent contended that emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out such illogicality and that if reasonable minds could differ about the assessment of evidence, the assessment could not be said to be illogical or irrational (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[135]).
The First Respondent also pointed out that the threshold for legal unreasonableness was very high. It was submitted that this was a case in which there were competing factors. It was acknowledged that there were many matters in the Applicant’s favour (in particular in relation to matters arising under paragraphs (a), (b) and (c) in reg.1.15A(3)), although in relation to paragraph (d) there was said to be conflicting evidence. However it was submitted that it was open to the Tribunal to have regard to other matters to which it referred in considering the commitment of both parties and the genuineness of the marriage. It was pointed out that, as the Tribunal observed, there was a big age gap; the sponsor was old and in poor health; they could not communicate in a common language, or at least not easily; and they knew little about each other’s family. These were all said to be perfectly rational matters for the Tribunal to take into account. It was submitted that even if the Tribunal gave great weight to such matters, this would not make out illogicality such as to demonstrate jurisdictional error, having regard to the fact that these were fairly fundamental matters that one would expect to be relevant in relation to whether there was a genuine relationship. In particular, it was suggested that the couple’s lack of knowledge about each other’s children or siblings, the large age gap between them and their lack of a common language meant that reasonable minds could differ about whether the Applicant had a genuine commitment to a shared life with the sponsor to the exclusion of all others.
The First Respondent contended that insofar as the Applicant had submitted that these matters were part of the “other evidence” that was of no relevance, common human experience suggested such matters and the other matters referred to in ground 2 were of obvious relevance in assessing whether the Applicant had a genuine commitment to the relationship.
It was also said to be open to the Tribunal not to be satisfied that the Applicant had a genuine commitment to the relationship, even though it accepted that her sponsor had such a commitment.
The First Respondent submitted that, contrary to the Applicant’s contention, the evidence before the Tribunal was not all one way, but that in any event the Tribunal did not need rebutting evidence before not being satisfied of being a specific matter. In particular, it was contended that the Tribunal did not need direct evidence that the relationship was not genuine from the Applicant’s point of view (see CQG15 at [65]). The First Respondent also observed that the Tribunal’s conclusion that the Applicant did not have a genuine commitment to a shared life as husband and wife to the exclusion of all others necessarily meant that the relationship did not meet the requirements in s.5F(2)(b) and (c) of the Act.
The First Respondent submitted that as extreme illogicality had not been demonstrated ground 3 must fail.
Consideration
In the present case, consistent with reg.1.15A(2) of the Regulations, the Tribunal stated that it took into account the matters referred to in reg.1.15A(3) as part of all the circumstances of the relationship. It addressed the matters referred to in the particulars to ground 1. It has not been established that the Tribunal failed to take into account any of the particularised matters such as to amount to a failure to have regard to a relevant consideration (cf Yusuf at [73]-[75]) or a failure to have regard to cogent evidentiary material.
Further, there was no suggestion that the Tribunal failed to make findings on any of the prescribed matters in reg.1.15A(3) such that it did not comply with its obligation under reg.1.15A(2) to “consider” all of the circumstances of the relationship, including “all the matters” specified in reg.1.15A(3) (cf He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [79]).
Insofar as ground 1 involves a contention that the Tribunal erred by not giving “sufficient weight” or by failing to give “any” weight to these specified matters it accepted as facts, this contention does not, in itself, establish jurisdictional error. The Tribunal considered the particularised matters as part of all the circumstances of the relationship. Subject to what is said in relation to ground 3, it was for the Tribunal to attribute weight to the various aspects of the evidence before it in considering the circumstances of the relationship.
As Mason J stated in Peko-Wallsend at 40-41:
The limited role of a court reviewing the exercise of an administrative law decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228).
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account when exercising the statutory power.
Moreover, Mason J also stated in Peko-Wallsend at 42 that “in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits” (and see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44] per Gleeson CJ and McHugh J).
The Applicant’s asserted that the Tribunal made positive findings in relation to each of the four mandated considerations in reg.1.15A(3) and that therefore it “should” have concluded that the s.5F definition of spouse was satisfied. It was contended that its failure to do so meant that the Tribunal had not taken into account or placed sufficient weight on the matters particularised in ground 1.
This assertion does not reflect the Tribunal reasoning. The Tribunal did not make unreservedly positive findings in all respects about the matters in regs.1.15A(3)(a)-(c). Notwithstanding that it made findings that were in the Applicant’s favour in the sense that they were matters which could rationally be seen as supporting the existence of mutual commitment and a genuine relationship (particularly in relation to matters within reg.1.15A(3)(a), (b) and (c)), it also made findings to the contrary in relation to matters in reg.1.15A(3)(a) and (c) as well as (d), including in circumstances where it did not accept Ms Jiang’s explanations. For example, in addition to the matters listed in the particulars to ground 2 (discussed below), the Tribunal had regard to Ms Jiang’s limited understanding of Mr Staples’ financial circumstances, her inability to identify the majority of people in group photographs who she had described as their close friends; the absence of independent corroboration that she had advised her family members of the marriage; as well as the absence of evidence of broad recognition of the relationship.
While another decision-maker may not have taken the view that such matters outweighed the factors which supported the claimed genuineness of the relationship and Ms Jiang’s commitment, this does not establish jurisdictional error on the basis contended for in ground 1.
Ground 1 is not made out.
Insofar as ground 2 asserts that the Tribunal took into account “irrelevant considerations”, as Mason J stated in Peko-Wallsend at 40:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
There is nothing in the Act or Regulations that explicitly or implicitly prohibits the Tribunal from considering any of the matters listed in the particulars to ground 2.
The Applicant’s contentions involve the general proposition that it is implicit in the requirement in reg.1.15A(2) that the decision-maker “must consider all of the circumstances of the relationship”, that the consideration must only be of “circumstances” of the relationship within reg.1.15A(3) and not of anything else. There is a directive in reg.1.15A(2) that the Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. This does not limit the Tribunal’s consideration to the reg.1.15A(3) matters. In turn, while paragraphs (a) to (d) in sub-regulation (3) specify four factors, “including” certain matters, this is not an exhaustive list.
Further, even if reg.1.15A(2) and the definition of spouse in s.5F of the Act are to be seen as implicitly limiting the Tribunal’s consideration to circumstances relevant to the existence of a married relationship, as the First Respondent submitted, the matters identified in the particulars to ground 2 are circumstances which may be relevant and are not irrelevant to the issue of whether there is a mutual commitment to a shared life as a married couple and a genuine relationship as required in the s.5F(2) definition of married relationship (and see reg.1.15A(1)).
Thus, the fact that at the Tribunal hearing Ms Jiang said she did not know the circumstances surrounding the death of Mr Staples’ friend, after first indicating that he had committed suicide (whereas Mr Staples had said he died from melanoma) may be seen as factually related to the level of communication between the parties (about which the Tribunal had concern) and the degree of emotional support Ms Jiang provided to her husband, relevant to the nature of her commitment (reg.1.15A(3)(d)(iii)).
Similarly, Ms Jiang’s failure to attend the funeral of her husband’s friend may be seen as relevant to the degree of emotional support she provided to Mr Staples. This is a matter which is expressly referred to in reg.1.15A(3)(d)(iii) and that was the context in which the Tribunal had regard to this issue.
Even if another decision-maker might not have regarded this evidence as of significance in this context (or may have accepted Ms Jiang’s explanations), this does not establish that the Tribunal erred in taking these matters into account and giving weight to such matters in carrying out its statutory obligation to “consider” all of the circumstances of the relationship.
Moreover, contrary to the suggestion that it was not open to or appropriate for the Tribunal to have regard to an event which occurred 12 months prior to the time of decision, it was appropriate for the Tribunal to consider the time of the decision criterion in light of facts that included past facts. The mandatory considerations in reg.1.15A(3) are concerned with and focus on particular circumstances of the relationship of the parties. Necessarily this will include past events. As Tamberlin J observed in Kayikci at [25], the quoted observations in Dhillon emphasised that “the relevant time for examination of the question of whether a marriage is genuine is the period over which the genuineness of the relationship must be decided, and that this is the central point of reference” (emphasis added). I note that in this case the Tribunal was considering whether a married relationship existed both at the time of application and time of decision under the criteria in cls.820.211 and 820.221 in Schedule 2 to the Regulations (and see Kayikci at [23]).
The Applicant submitted that the fact that the couple were still “together” some 12 months after the friend’s funeral suggested that her failure to attend the funeral was not of concern to Mr Staples. However, while how Mr Staples felt about Ms Jiang’s failure to attend his friend’s funeral may be relevant to his commitment (which the Tribunal accepted existed), this submission overlooks the fact that what concerned the Tribunal in this respect was not Mr Staples’ view of the matter, but what the failure of Ms Jiang to attend the funeral for her husband’s best friend revealed about the emotional support she provided to her husband and her commitment to a shared life as husband and wife.
It is the case that, as pointed out in particular (c) to ground 2, the Tribunal found that the parties “do not have any joint assets or liabilities”. It went on to acknowledge that they had a joint bank account. I am not satisfied that this approach led the Tribunal to have regard to an irrelevant consideration or to misdirect itself in respect of the mandated considerations in reg.1.15A(3)(a)(i) (which refers to “any joint ownership of real estate or other major assets” (emphasis added)) or in reg.1.15A(3)(a)(ii) (which refers to “any joint liabilities”). As the First Respondent submitted, on a fair reading of paragraph 24 of the Tribunal’s reasons (set out at [26] above), the Tribunal was referring to the absence of major assets, that is, other than simply a joint bank account. In any event, it did not fail to have regard to the evidence about the joint bank account.
Further, while the Tribunal accepted that Mr Staples’ friend (and best man) was the only person “from his side” who attended the wedding, there is nothing to indicate that the Tribunal relied adversely on this finding in relation to Ms Jiang. Rather, despite this and some other factors which may have been seen as contrary to Mr Staples’ commitment, the Tribunal accepted that Mr Staples was committed to the relationship.
Of more concern is the fact that the Tribunal did not explain why, in the absence of any independent corroboration, it did not accept the consistent evidence of both parties that Ms Jiang had advised her family of the marriage, beyond stating that it did not find that evidence convincing. It would be putting the cart before the horse if this reasoning simply reflected a conclusion already reached by the Tribunal about Ms Jiang’s lack of commitment to the relationship, as the First Respondent appeared to submit. There was no adverse credibility finding in relation to Ms Jiang. However, the Tribunal did provide some explanation for its approach in its subsequent expression of concern that, beyond a small group of friends and neighbours and how the couple held themselves out to government departments, there was “little independent evidence to indicate that the relationship is recognised more broadly, including by family members”.
It was open to the Tribunal to have regard to the absence of independent evidence in relation to matters which could have been corroborated, given that, in contrast to the position of Mr Staples, there was apparently no suggestion that Ms Jiang was estranged from or not in contact with family members in China. It has not been established that the Tribunal took into account an irrelevant consideration by placing weight on the absence of independent evidence. The fact that the Tribunal had regard to its failure to accept that Ms Jiang had informed her family members of the marriage does not constitute taking into account an irrelevant consideration.
If it was intended to assert legal unreasonableness or other jurisdictional error in this respect such contention is not made out on the Applicant’s submissions.
The Applicant did not plead any other basis on which the Tribunal’s approach to the issue of the evidence about Ms Jiang informing her family members in China of the marriage may be said to be indicative of jurisdictional error. The Applicant’s solicitor asserted generally in oral submissions that the Tribunal’s failure to give reasons for finding the parties’ evidence in this respect to not be convincing amounted to jurisdictional error. However this contention was not developed or supported by reference to any authorities or principles. The bare assertion does not suffice to establish jurisdictional error.
As to the fact that the parties did not speak a common language, the Tribunal did not simply give this as a reason for rejecting Ms Jiang’s application. Rather, it took it into account as part of all the circumstances. It also expressed concern about the couple’s ability to communicate with one another in a meaningful way and referred to the lack of knowledge the parties had demonstrated about each other and their families. Again, it cannot be said that this was an irrelevant consideration or a matter to which no weight could be given.
It is the case that while the language and communication issues applied to both parties, the Tribunal nonetheless accepted that Mr Staples was committed to the relationship and was seeking companionship and care from Ms Jiang. The Applicant appeared to suggest that the Tribunal could not “count” these factors against her if they did not also lead to an adverse conclusion in relation to Mr Staples’ commitment. However, their circumstances and evidence were not identical. The Tribunal considered these factors as part of all the circumstances in relation to each of the parties as outlined above. In relation to Mr Staples it also considered his evidence and his age, health problems and the assistance with personal care Ms Jiang gave him. It was open to the Tribunal to have regard to the fact the parties did not speak a common language in considering all the circumstances relevant to the nature and extent of Ms Jiang’s commitment.
The last factor particularised in ground 2 is the Tribunal’s reference to the fact the parties did not know the siblings or children of the other spouse. This is apparently intended to be a reference to their knowledge about the siblings or children, rather than their personal knowledge of such people.
Insofar as the Applicant asserted that such a lack of knowledge was of “no consequence” and that neither party was interested in these details, it was not irrelevant for the Tribunal to have regard to this factor in the context of considering the nature of the persons’ commitment to each other. In that context, these matters and the other matters to which the Tribunal referred, rationally went to the existence of a genuine relationship, as contended for by the First Respondent.
The concern expressed in ground 2 about the fact that the Tribunal placed weight on certain factors (on the basis that excessive weight was given to factors of no great importance) does not establish that the Tribunal took into account irrelevant considerations.
Ground 2 is not made out.
Ground 3 is that the Tribunal fell into jurisdictional error by reaching a conclusion that did not reasonably follow from the facts and evidence accepted by the Tribunal. No reference was made to any of the more recent authorities on legal unreasonableness or any of the principles considered in such cases. The submissions in this respect were brief and relied largely on the concerns about the weight attributed to particular matters discussed in relation to grounds 1 and 2.
The only authority cited by the Applicant in this respect was the reference by Mason J in Peko-Wallsend to the fact that Wednesbury unreasonableness was the preferred ground of review in circumstances where an administrative decision-maker had failed to give adequate weight to a factor of great importance or had given excessive weight to a relevant factor of no importance (but see the discussion in SZMDS at [121]-[129] per Crennan and Bell JJ).
Insofar as ground 3 involves an assertion that there was legal unreasonableness because of the existence of illogicality or irrationality, as the First Respondent pointed out, in SZMDS Crennan and Bell JJ stated at [130]-[131] and [135]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
Thus, as discussed in CQG15 at [60]-[61], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings or reasoning, “extreme” illogicality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. Even emphatic disagreement with the Tribunal’s reasoning does not make out illogicality (SZMDS at [124] and CQG15 at [61]).
The Tribunal’s decision cannot be said to be irrational or illogical or unreasonable sufficient to give rise to jurisdictional error simply because one conclusion was preferred instead of another possible conclusion if, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion.
Moreover even if some aspects of a Tribunal’s fact finding or reasoning could be seen as involving a lapse of logic, as stated in SZMDS at [130] “[n]ot every lapse of logic will give rise to jurisdictional error”.
It is also important to bear in mind that it is for the Tribunal, not the court, to decide whether an Applicant meets the criteria for a visa and that merits review is not available in these proceedings.
It was contended in submissions for Ms Jiang that legal unreasonableness was established on the basis that the “other evidence” which the Tribunal found did not outweigh the evidence from supporting witnesses or other positive evidence, was all irrelevant (as asserted in ground 2). On this basis it was suggested that the “other evidence” which outweighed the Tribunal’s positive findings was not to be found in its reasons.
The Applicant asserted that insofar as the Tribunal had taken into account what were said to be irrelevant considerations, it could not rely on such matters, that in the absence of such matters there was no basis for its conclusion, and that therefore the conclusion did not follow from the Tribunal’s reasons and was unreasonable.
However, as discussed above, it was necessary for the Tribunal to have regard to all of the circumstances of the relationship and in that context it was open to it to consider the matters referred to in ground 2 as well as other issues of concern referred to in its reasons (and see [90] above). These matters were not matters the Tribunal was prohibited from considering. It has not been established that the Tribunal relied on “other” evidence not disclosed in its reasons in the manner contended for by the Applicant.
It was also reasonably open to the Tribunal to place weight on its findings in relation to the nature of Ms Jiang’s commitment to Mr Staples and in that context to have regard to evidence which suggested a lack of emotional support to Mr Staples as well as the other matters to which it referred. Ms Jiang’s failure to attend the funeral of her husband’s friend and the inconsistency in the evidence as to the cause of his death could be seen as relevant to the degree of emotional support she provided to Mr Staples and to their communication and commitment as discussed above. It was also not irrational or unreasonable for the Tribunal to have regard to events prior to the time of decision.
At the same time, it was open to the Tribunal to have regard to Mr Staples’ personal circumstances in accepting that that he was committed to the relationship, but not to be so satisfied in relation to Ms Jiang. While various factors tended for, or against, the existence of a commitment on the part of both parties, their circumstances were not identical and the Tribunal had the advantage of hearing their oral evidence. The fact that there were only limited factors which supported the Tribunal’s conclusion that Mr Staples had the necessary commitment does not mean the decision was illogical or irrational (or plainly arbitrary, capricious or lacking in common sense) because the Tribunal did not also accept the genuineness of Ms Jiang’s commitment.
Unlike the situation in Kayikci, it has not been established that the Tribunal had regard to or placed weight on “peripheral and irrelevant” matters in reaching its conclusion in relation to Ms Jiang such that no rational or logical decision-maker could have made the same findings or adopted the same reasoning.
Further, insofar as the Applicant submitted that the weight given to matters asserted in grounds 1 and 2 demonstrated legal unreasonableness, it has not been established that the Tribunal gave excessive weight to any factors of no importance or failed to give adequate weight to a factor of great importance in considering all the circumstances of the relationship such that legal unreasonableness is made out in the Tribunal’s fact finding or apparent in the outcome of the decision.
The Tribunal’s approach to the question of whether Ms Jiang had informed her family in China of her marriage and the fact it did not find the parties’ evidence in this respect convincing and was not prepared to accept it in the absence of any independent corroboration is discussed above. While the Tribunal’s approach may be open to criticism, neither legal unreasonableness or illogicality such as to amount to jurisdictional error has been established. The Applicant, who was represented, did not address the circumstances or manner which a failure to give reasons may reveal jurisdictional error.
More generally, while a finding that Ms Jiang did have the requisite commitment may well have been open on the same evidence, even if differences of degree, impression or judgement are such as to lead to “emphatic disagreement” with the weight ascribed to particular matters by the Tribunal this does not suffice to establish jurisdictional error (see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 242 CLR 164 at [34]).
The Tribunal accepted that Mr Staples had a commitment to a shared life as part of a married couple and was seeking companionship and care from Ms Jiang. However, this is not a case in which only one conclusion was open on the evidence in relation to Ms Jiang’s commitment to the marriage. It has not been established that there was no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal along the way to the ultimate conclusion. There was an evident and intelligible justification for the Tribunal’s conclusion. The Tribunal’s obligation was to consider all the circumstances of the relationship. The weighing process the Tribunal adopted in relation to the evidence before it has not been shown to be illogical, arbitrary, capricious, lacking in common sense or otherwise unreasonable on the basis contended for by the Applicant. It was reasonably open to the Tribunal not to be satisfied on all the evidence that Ms Jiang was committed to a shared life with Mr Staples as husband and wife to the exclusion of all others. It followed from the Tribunal’s findings that the requisite “mutual” commitment was not made out as required in the s.5F definition of married relationship.
Reasonable decision-makers may well have differed in the assessment of the evidence before the Tribunal, but I am not satisfied that no logical or rational decision-maker would have made such findings or reached such conclusion on the evidence before the Tribunal (see SZMDS per Crennan and Bell JJ at [131]). Legal unreasonableness has not been established on the basis of the matters the Tribunal took into account or the weight attributed to matters to which it had regard or otherwise on the basis contended for by the Applicant.
Ground 3 is not made out.
The Applicant’s concern was with the Tribunal’s lack of satisfaction that the parties had a mutual commitment to a shared life as husband and wife or that the relationship was genuine. No issue was taken by Ms Jiang with the fact that in its reasons the Tribunal had accepted that she and Mr Staples had lived together since August 2013 and had placed weight on the establishment of a joint household, but had then concluded that it was not satisfied that the parties lived together as required under
s.5F(2)(d) of the Act. I note that, illogical as this finding may be, it was not the sole basis for the Tribunal’s conclusion that s.5F was not satisfied. Further, in considering all the circumstances of the relationship and finding that it was not satisfied that the commitment and genuine relationship required under s.5F(2)(b) and (c) existed, the Tribunal accepted and placed some weight on the fact that parties had been living together since August 2013 and had established a joint household.
As the Applicant has not established jurisdictional error on any of the bases contended for, the application must be dismissed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 March 2019
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