Nguyen v Minister for Immigration and Citizenship
[2025] FedCFamC2G 888
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 888
File number(s): BRG 644 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 11 June 2025 Catchwords: MIGRATION – Partner (Temporary) (Class UK) (subclass 820) visa – review of a decision of the Administrative Appeals Tribunal – failure to consider evidence – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5CB; 5F; 476
Migration Regulations (Cth) cl 800.211; 820.211
reg 1.09A; 1.15A
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003); 197 ALR 389
He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41
Sun v Minister for Immigration and Border Protection [2017] FCA 1270; (2017) 157 ALD 437
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 30 May 2025 Date of hearing: 30 May 2025 Place: Brisbane Counsel for the Applicants: Ms Yu Solicitor for the Applicants: Mr Cai - Challenge Legal Solicitor for the Respondents: Ms White - Sparke Helmore Solicitor for the Respondents: The second respondent filed a submitting appearance, save as to costs ORDERS
BRG 644 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI MINH TIEN NGUYEN
First Applicant
THI ANH KIM NGUYEN
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicants are to pay the first respondent’s costs, fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of Vietnam. On 5 December 2018, the first applicant (“the applicant”) made an application for a Partner (Temporary) (Class UK) (subclass 820) visa (“the visa”) and a Partner (Residence) (Class BS) (subclass 801) visa on the basis of her relationship with an Australian citizen (“the sponsor”) (Court Book (“CB”) 1-55). The second applicant (the applicant’s daughter) was included in the application as a member of the applicant’s family unit (CB 6-7). The second applicant was 16 years of age at the time of the visa application and 22 years of age at the time of the hearing before the Tribunal.
In addition to various identity documents, the visa application was accompanied by a statutory declaration by the applicant attaching a certified copy of the certificate of marriage between the applicant and the sponsor; copies of text messages between the applicant and the sponsor; bank statements for the period 15 May 2018 to 20 November 2018 for an account in the name of the sponsor; a statement of assets of the sponsor; pay slips for the sponsor for the period 7 October 2018 to 30 October 2018; notices of income tax assessment for the sponsor for the financial years ending 30 June 2015, 30 June 2017 and 30 June 2018; record of a money transfer from the sponsor to the applicant; numerous photographs including of the sponsor and the applicant; statutory declarations by the sponsor about his relationship with the applicant; a statement from neighbours of the applicant and the sponsor stating that they had been living together since 28 October 2018 in Willowbank Caravan Park; a statutory declaration by a friend of the sponsor as to his belief that the relationship between the applicant and the sponsor is genuine; a statutory declaration by the applicant’s daughter (living in Australia) regarding her observations of the relationship between the applicant and the sponsor.
In response to requests from the Department, the applicant and sponsor provided further documents including an invoice from Thorneside Mobile Home Park dated 1 July 2021; a receipt from Elders Insurance in the name of the applicant and the sponsor dated 16 July 2021; and a contract for the purchase of a manufactured home dwelling in the name of the sponsor as the purchaser.
On 3 February 2022, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant had met the criteria in cl 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), as the delegate was not satisfied that the applicant and the sponsor were in a married relationship within the meaning s 5F or s 5CB of the Migration Act 1958 (Cth) (“the Act”) having regard to the factors in reg 1.15A and 1.09A of the Regulations (CB 252-256). The delegate refused to grant the second applicant the visa on the basis that she was not a member of the family unit of a person who held a visa (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 15 February 2022, the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants appointed a registered migration agent to act as their representative (CB 298-306). On 10 March 2023, the applicants appointed a solicitor to act as their representative (CB 319-322).
On 22 July 2024, the Tribunal invited the applicants to provide further information and supporting evidence addressing reg 1.15A of the Regulations and set out examples of what this information could include (CB 328-332).
On 5 August 2024, the applicants’ solicitor provided the Tribunal with written submissions; bank statements for the period 30 August 2019 to 27 May 2024 for a joint bank account in the names of the applicant and the sponsor; bank statements for the period 15 July 2020 to 2 February 2024 for a bank account in the name of the sponsor; invoices for the period 29 July 2021 to 2 May 2024 addressed to the applicant and sponsor for rental payments to the Thorneside Mobile Home Park; correspondence dated 2 July 2021 and 16 May 2023 from the sponsor’s motor vehicle insurer regarding changes to cover and payments due; correspondence from the Commonwealth Bank to the applicant and the sponsor with respect to their joint account; correspondence from the Australian Taxation Office to the applicant regarding her tax file number; correspondence and reports from medical practitioners regarding the applicant; correspondence from Metro South Health and West Moreton Health regarding the sponsor; correspondence inviting the sponsor to a hearing test; correspondence from BreastScreen Queensland to the applicant; various photographs; various certificates relating to the studies by the second applicant; and a letter from Hoai Vy Phan verifying that she employs the applicant (CB 333-479).
On 16 August 2024, the Tribunal invited the applicants to attend a hearing on 17 September 2024 to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the information before it alone (CB 480-484).
On 11 September 2024, the applicants’ solicitor provided further written submissions in support of the applicants’ application for review and a completed Response to Hearing form setting out the names and relationship of witnesses the applicants intended to give evidence at the hearing (CB 486-494).
On 12 September 2024, the Tribunal sent an email to the applicants noting that it is a requirement that signed and dated witness statements be provided. The Tribunal also noted that the visa application was refused because the delegate considered that the applicants did not meet the visa criteria at the time of application and noted that no additional evidence had been submitted relevant to the application. The Tribunal asked the applicants to confirm whether additional material was to be submitted (CB 496).
On 12 September 2024, the applicants’ solicitor responded by email seeking an extension of time within which to submit an outline of the evidence the witnesses will give. The applicants’ solicitor further stated the applicant and the sponsor instructed that they had provided all of their evidence from this period to their former representative who advised that those material had been submitted to the Department and that they have no additional evidence to that was already available on the Department’s file and that they intend to rely upon their oral evidence as well as the oral evidence of their witnesses and that accordingly no additional material would be submitted prior to the hearing (CB 495).
On 15 September 2024, the applicants’ solicitor provided the Tribunal an outline of witness evidence for Mr Gavin King identified as a friend of the sponsor and Ms Thi Kim Ngan Vo, who was identified as the applicant’s daughter who had resided in Australia for approximately 10 years (CB 498-500).
On 17 September 2024, the applicants and their solicitor attended the hearing. The applicant was assisted by their solicitor and an interpreter in the Vietnamese and English languages. The applicants and three witnesses gave evidence. The witnesses were the sponsor, Mr Gavin King and Ms Thi Kim Ngan Vo (the applicant’s elder daughter).
At the hearing, the applicants provided further documents to the Tribunal, including the applicant’s tax returns for the financial years ended 30 June 2021 and 30 June 2022; bank statements for the period 24 April 2024 to 23 July 2024 and for the period 3 February 2024 to 2 August 2024 for a bank account in the name of the sponsor; bank statements for the period 1 January 2024 to 30 June 2024 for a bank account in the joint names of the applicant and sponsor; rental invoices for the period from 30 May 2024 to 23 August 2024 from Thorneside Mobile Home Park addressed to the applicant and the sponsor; a letter from the Metro South Health Redland Hospital notifying the applicant he had been placed on an elective surgery waiting list; and a letter from the sponsor’s lawyer regarding a total and permanent disability claim (CB 501-538).
On 19 September 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 541-552) (“Decision”).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether at the time the visa application was made the applicant was the spouse of an Australian permanent resident, for the purpose of cl 800.211(2)(a) of Schedule 2 to the Regulations ([8]).
The Tribunal referred to the definition of spouse in s 5F of the Act which provides that a person is the spouse of another if the two persons are in a married relationship which requires that they are married to each other under a marriage that is valid for the purposes of the Act; they have a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship between them is genuine and continuing; and, they live together or do not live separately and apart on a permanent basis ([9]). The Tribunal stated that in forming an opinion about those matters, regard must be had to all the circumstances of the relationship and referred to reg 1.15A(3) of the Regulations ([10]). The Tribunal further stated that each of the specific matters set out in reg 1.15A(3) of the Regulations are questions that must be answered by the Tribunal and in that regard, referred to He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 (“He”).
The Tribunal further stated that in forming a view at the time of the visa application, the Tribunal must consider all relevant evidence which may include evidence of events after the date of the application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application and that evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined ([11]).
The Tribunal was satisfied that the applicant and the sponsor (“the couple”) were married under a marriage that is valid for the purpose of the Act, as required by s 5F(2)(a) ([24]-[25]).
The Tribunal stated that it raised with the applicants’ representative prior to the hearing that the visa application was refused because the delegate considered that the visa applicants did not meet the visa criteria at the time of application, and that no additional evidence had been submitted relevant to the time of the application ([17]). This was a reference to the Tribunal’s correspondence to the applicants dated 5 August 2024 (CB 496). The Tribunal referred to the representative’s response that the applicant had no evidence additional to that submitted to the Department. This was a reference to the representative’s correspondence to the Tribunal dated 12 September 2024 (CB 495). The Tribunal also referred to the representative’s submission (at [20]) that:
The Applicant acknowledges and understands that there may have been issues with some of their documents provided in their application, and these issues may be considered as relevant in the Presiding Member's current assessment and considerations. However, we submit that the collective body of documentary evidence before the Tribunal and oral evidence to be provided at hearing ought to be considered with at least equal weight as any issues arising at interview in the interest of a review de novo.
The Tribunal referred to the applicant’s evidence that she and the sponsor met in Australia in October 2016, committed to each other in December 2016 and married in July 2017. The Tribunal noted that after the marriage the applicant spent 10 months offshore and that, according to the visa application, they maintained contact by exchanging messages and referred to screenshots of messages submitted to the Department. The Tribunal concluded that there was no credible evidence before it as to the delay between the marriage and the visa application being made ([16]).
The Tribunal said that overall, there was little credible evidence before it relating to the inception of the couple’s relationship and their relationship at the time of the visa application ([21]). The Tribunal said that while there was more documentary evidence subsequent to the visa application, which it took into account, the evidence was not sufficiently compelling to persuade it that the circumstances claimed to have existed at the time of application did, in fact, exist. The Tribunal asked the applicants whether they wanted the opportunity to file additional evidence. The applicants declined this offer ([21]).
The Tribunal further said that, as a whole, the oral evidence provided whilst sincere, was not sufficient to fill the considerable gaps in evidence both at the time of the application and to the present ([22]). The Tribunal stated that whilst it had determined the matter having regard to the criteria that applied at the time of the application only, it noted that the oral and documentary evidence before it would not have been sufficient for it to find in the applicant’s favour having regard to the criteria that applied at the time of decision. The Tribunal said that this was not to say the relationship between the applicant and the sponsor is not necessarily genuine but that rather that the evidence as a whole was insufficient for it to establish the relevant facts that could support a finding in the couple’s favour ([23]).
The Tribunal then went on to consider the factors in reg 1.15A(3) of the Regulations.
As to the financial aspects of the relationship, the Tribunal found ([26]-[29]):
(a)At the time of application, the couple did not claim to have had any joint assets or liabilities, to have pooled their financial resources, to have owed legal obligations to each other or to have shared day-to-day household expenses;
(b)The couple had opened a joint back account in 2019, into which the applicant’s salary was paid;
(c)The sponsor’s salary was paid into his personal account;
(d)The sponsor had made one payment of $20,000 to the joint account;
(e)The second applicant’s tuition [fees] were paid from the joint account;
(f)The majority of withdrawals from the joint account and the sponsor’s bank account were cash withdrawals although there had been an increase in electronic payments since 2024. The Tribunal noted the cash withdrawals were problematic from an evidentiary perspective as it was not possible for the Tribunal to independently verify how the couple shared their financial responsibilities;
(g)The couple claimed to have jointly purchased a mobile home. Whilst the applicant signed the purchase agreement, only the sponsor is nominated as the purchaser and the evidence was that only the sponsor paid the purchase price. Accordingly, the Tribunal did not consider this a joint asset.
The Tribunal found that overall, the evidence at the time of application did not indicate that the couple had combined their finances or their financial responsibilities to any material extent. The Tribunal found that the financial aspects of this relationship were not indicative of a “married relationship” as defined by the Act ([30]).
As to the nature of the household, the Tribunal summarised the delegate’s decision record ([31]) as to the applicant and sponsor’s living arrangement and referred to the additional evidence provided to the Tribunal to support their claim that they continue to reside in Thorneside. This evidence was the invoices for rent in joint names and correspondence addressed to the applicant and the sponsor at the shared address and a statement from the applicant’s employer ([32]).
The Tribunal stated that apart from the joint bank statements there was no additional documentary evidence to corroborate the claims that the couple previously lived tother in Brassal or Willowbank, or that they lived together in Durack after their marriage but before the application was made. The Tribunal stated that the couple’s oral evidence as to their previous residential addresses was vague and uncertain and that the applicant could not accurately name the suburbs in which she had lived, and the sponsor could not recall their previous addresses ([33]).
In the absence of more documentary evidence and credible oral evidence, the Tribunal said that it could not be satisfied that the applicants and the sponsor lived together before July 2021 when they claimed to have moved to the Thorneside address ([34]).
(a)There were witness statements from three neighbours that state that the applicant had lived with the sponsor in Willowbank Caravan Park since 28 October 2018. However, no other evidence had been provided to substantiate the claim made;
(b)The sponsor had provided documents which listed his previous address as 57A Vogel Road, Brassal however no evidence was provided to show the applicant also resided there.
The Tribunal said that it took into account the joint bank statement but that it did not consider this to be convincing evidence that the couple, in fact, shared a household at the relevant time ([35]). The Tribunal further said that evidence that the couple currently live together did not necessarily mean that they lived together at the time of the application, and that in circumstances where there was insufficient evidence for the Tribunal to find that the applicants and the sponsor lived together at the time of the application, and for approximately two and a half years after the application was made, the Tribunal found that they did not ([36]).
The Tribunal found that the oral evidence as to how the couple share the responsibility of housework however, the evidence was cursory and the Tribunal found that the couple did not share housework at the time of application ([37]).
The Tribunal noted that the couple claim that the applicant and sponsor claim to share responsibility for the care and support of the second applicant. The Tribunal said that the oral evidence about this was non-specific and not supported by credible corroborating material. The Tribunal said that there was insufficient documentary evidence to substantiate the claim that the second applicant lived with the applicant and the sponsor. The Tribunal referred to two letters addressed to the second applicant at the Thorneside address and that the invoices for the Thorneside address noted 2 adults and 0 children. The Tribunal observed that there was no enrolment information relation to the second applicant’s schooling referring to, for example, her residential address or emergency contact details. The Tribunal further observed that there were no bank statements for the account to which the applicant had told the Department the second applicant had a debit card. The Tribunal concluded that at the time of the application, the couple did not share responsibility for the care and support of the second applicant ([38]).
The Tribunal concluded that, on balance, at the time of application, the nature of the household was not indicative of a “married relationship” as defined in the Act ([39]).
As to the social aspects of the relationship, the Tribunal stated that there was limited evidence before it as to the social aspects of the relationship ([40]) and summarised the evidence and made the following findings summarised:
(a)The Tribunal gave some weight to the couple’s oral evidence that they enjoy shopping and going to the beach ([41]);
(b)It gave some weight to the oral and written statements given by two witnesses at the hearing however, noted that the oral evidence provided lacked detail and corroborating evidence. The Tribunal also noted that it was significant that no other friends, family members or acquaintances provided written or oral evidence in support of the relationship ([42]);
(c)The numerous photographs submitted by the couple to the Department and Tribunal lacked context and there was no evidence as to when and where they were taken or who is in the photographs. The Tribunal noted that it was significant that the persons depicted in the photographs did not give written or oral evidence in support of the couple ([43]);
(d)The Tribunal placed some weight upon the applicant’s tax returns, which note the relationship ([44]).
The Tribunal stated that whilst there is some evidence that the couple has a relationship that is socially recognised, it agreed with the sentiment expressed by the delegate that there was no convincing evidence that at the time of application the couple had presented themselves to friends, family or the wider community as spouses, that they had taken holidays together or belonged to any organisations or groups ([45]).
The Tribunal concluded that it was not satisfied on the evidence that, at the time of application, the couple represented themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believed the relationship between the couple to be genuine and continuing and the coupled planned and undertook joint social activities. The Tribunal concluded that the social aspects of the relationship were not indicative of a “married relationship” as defined in the Act ([46]).
As to the nature of the couple’s commitment to each other, the Tribunal stated that the couple has been married for seven years and claim to have lived together for six years although it had not made a finding to this effect ([47]). The Tribunal:
(a)Went on to refer to the brief oral evidence as to how they support each other and their future plans however, no additional documentary evidence was provided. The Tribunal noted the delegate’s comment that there was no evidence provided as to the mutual obligation, companionship, emotional support and long-term planning, which are typical elements of marriage ([48]);
(b)Concluded that, having considered all the oral and documentary evidence provided, it was no satisfied that, at the time of application, the couple drew companionship and emotional support from each other commensurate with a genuine relationship or that they saw their relationship as long term. The Tribunal concluded that the nature of the couple’s commitment to each other was not indicative of a “married relationship” as defined in the Act ([49]).
The Tribunal concluded overall that having considered all of the evidence and having regard to the matters required to be considered in reg 1.15A(3) of the Regulations it found that at the time of the visa application, the parties did not satisfy the definition of a married relationship, as it was not satisfied that the requirements of s 5(F)(2) of the Act were met ([50]) and was therefore not satisfied that the applicant satisfied the criteria in cl 820.211(2)(a) of the Regulations ([50]-[51]). The Tribunal accordingly affirmed the delegate’s decision ([53]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 8 October 2024. The applicants also filed an affidavit affirmed by their representative on 8 October 2024. The affidavit annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
On 12 May 2025, the applicants filed an affidavit of Susanne Gloria Jacobs (Director of Type Transcripts Pty Ltd) sworn on 12 May 2025. The affidavit annexes a transcription made by Ms Jacobs of the audio file of the Tribunal hearing on 17 September 2024 (“the Transcript”).
The material before the Court was the application, the applicant’s representative’s affidavit, the affidavit of Susanne Gloria Jacobs annexing the Transcript, the first respondent’s response, the applicants’ written submissions, the first respondent’s written submissions and the Court Book.
CONSIDERATION
For the applicants to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
Despite a procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):
1.The Second Respondent (the Tribunal) failed to consider relevant evidence given by the Applicants and the sponsor at the hearing held by the Tribunal on 17 September 2024.
a.At the hearing held by the Tribunal on 17 September 2024, oral evidence had been given to the following effect:
i.Both the First Applicant and the Sponsor gave evidence about their knowledge of the fact that the Sponsor had previously worked as a concrete truck driver and that he ceased working 3-4 years before the hearing due to a workplace accident;
ii. The Sponsor gave evidence that he tried to have the cars and motorcycles that were in his and the First Applicant's possession registered in both names, but that he was unable to do so as the First Applicant did not have a driver's licence;
iii. The Sponsor gave evidence about why he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank;
iv. The Second Applicant repeatedly referred to the sponsor as "dad" or "daddy" in her oral evidence;
v. The Sponsor gave evidence about problems encountered with their two previous representatives and that one of them have been forced to cease trading.
b. In finding at [30] of its decision that the financial aspects of the First Applicant and Sponsor's relationship were not indicative of a 'married' relationship', the Tribunal did not consider or make findings on the evidence referred to above in (a)(i)-(iii).
c. In finding at [38] that the evidence as to the care and support of the Second Applicant was 'cursory' the Tribunal did not consider the nature of the Second Applicant's relationship with the Sponsor or that she regarded him as her father and addressed him as such: see (a)(iv) above.
d. In making findings throughout its decision that there was insufficient evidence as to the Applicants and Sponsor's circumstances at the time of lodging the visa application in 2018, the Tribunal did not consider the evidence or explanation given by the Sponsor as to the problems encountered with their first two representatives: see (a)(v) above.
e. The matters referred to above at (a)-(d) were material to the Tribunal's decision to affirm the decision to refuse the Applicant's Subclass 820 Partner visa based on a purported failure to meet cl.820.211 (2)(a) of the Migration Regulations 1994 (Cth). Consequently, the Tribunal's decision was affected by jurisdictional error.
Ground one: failure to consider relevant evidence
The applicants contend that the Tribunal failed to consider evidence which was relevant and material to the Tribunal’s decision to affirm the delegate’s decision and that this constituted jurisdictional error. The specific contentions are that:
(a)In finding at [30] that the financial aspects of the applicant and the sponsor’s relationship were not indicative of a “married relationship”, the Tribunal did not consider or make findings on the following evidence:
(i)the applicant’s knowledge that the sponsor had worked as a concrete truck driver and ceased work three to four years before the hearing because of a workplace accident;
(ii)the sponsor’s evidence that he tried to have the cars and motorcycle that were in his and the applicant’s possession registered in both names but was unable to do so because the applicant did not have a driver’s licence;
(iii)the sponsor’s evidence about why he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank.
(b)In finding at [38] that the evidence as to the care and support of the second applicant was “cursory” the Tribunal did not consider the nature of the second applicant's relationship with the sponsor or that she regarded him as her father and addressed him as such, repeatedly referring to the sponsor as “dad” or “daddy” in her oral evidence;
(c)In making findings throughout its decision that there was insufficient evidence as to the circumstances of the applicants and the sponsor at the time of lodging the visa application in 2018, the Tribunal did not consider the evidence or explanation given by the sponsor about problems encountered with their two previous representatives and that one of them had been forced to cease trading.
Relevant principles
It is not in contention that reg 1.15A(3) of the Regulations provides for mandatory factors which must be considered by the decision maker in considering whether persons are in a married relationship for the purposes of s 5F(2) of the Act. Each of the matters set out in reg 1.15A(3) are relevant considerations which the decision maker is bound to consider (He). In He, the Full Court of the Federal Court said, as to this task (at [74]-[82]):
(a)The Tribunal must apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances;
(b)The Tribunal is required to make findings upon each of the prescribed matters set out under each principal matter which requires that these questions be answered not merely thought about and answered so that the circumstances identified by answers are included in the evaluation of whether there is a married relationship;
(c)A finding must be made on each of the four principal matters;
(d)If the Tribunal’s written statement does not set out a finding concerning any of the prescribed matters it may lead to an inference that the Tribunal member made no such finding as part of his or her mental process and, in that event, will not have complied with its obligations under reg 1.15A(2) to consider all of the circumstances of the relationship;
(e)The impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons and that such reasons are not to be construed minutely and with an eye attuned to the perception of error.
It is also relevant to note, at the outset, that the Tribunal was required to determine the matter having regard to the time of application criteria only. The Tribunal, however, correctly observed that it must consider all of the relevant evidence, which may include events after the date of the application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application and that evidence of events after the visa application is relevant if it tends to logically show the existence or non-existence of facts relevant to the issue to be determined (at [11]).
In support of ground one, the applicants referred to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003); 197 ALR 389 at [23]-[24] per Gummow and Callinan JJ which it was submitted stood for the proposition that a misstatement of, and consequent failure to deal with a claim raised by an applicant constitutes jurisdictional error and that decision makers are required to consider substantial and clearly articulated arguments raised in support of an applicant’s case (applicants’ submissions (“AS”) at [10]). The applicants’ counsel also referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR (“WAEE”) at [47] per French, Sackville and Hely JJ that where an issue is raised by the evidence on behalf of the applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunals’ review of the delegate’s decision, a failure to deal with it in in the published reasons may raise a strong inference that it has been overlooked.
Of course, in WAEE the Court also said that it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons (at [46]). Further, in addressing the criterion (relevant in that case) as to whether the applicant had a well-founded fear or persecution for a Convention reason, the Court said a distinction is to be drawn between the Tribunal failing to advert to evidence, which if accepted, might have led to a different finding of fact and a failure by the Tribunal to address a contention, which if accepted, might establish that the applicant had such a well-founded fear.
Specifically in relation to a partner visa application, the first respondent submitted (first respondent’s submissions (“FRS”) at [19] referring to Sun v Minister for Immigration and Border Protection [2017] FCA 1270 at [57]) that not everything put forward by an applicant becomes a mandatory relevant consideration such “the relevant considerations fall to be determined by reference to the provisions of s5F of the Act and reg 1.15A, not the pieces of evidence, or the claims that the applicant advance to the Tribunal”.
For the reasons set out below, the Court is of the view that on a fair reading of the Tribunal’s Decision as a whole, the Tribunal engaged in the task required of it and that any failure to refer in its reasons to the specific pieces of evidence particularised in ground one of the application does not constitute jurisdictional error.
The Tribunal’s finding at [30]
Having considered the evidence as to the financial aspects of the relationship (at [26]-[29]), the Tribunal concluded at [30] as follows:
Overall, the evidence at and subsequent to the time of application does not indicate that the couple have combined their finances or their financial responsibilities to any material extent. The financial aspects of the relationship are not indicative of a 'married relationship', as defined in the Act.
The applicants’ complaint is that in reaching that conclusion the Tribunal did not expressly refer (at [26]-[29]) to the evidence about the applicant’s knowledge that the sponsor had worked as a concrete truck driver and had ceased work three to four years before the hearing because of a workplace accident; the sponsor’s evidence that he tried to have the cars and motorcycle registered in both names but was unable to do so because the applicant did not have a driver’s licence; and the sponsor’s evidence about why he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank.
It is not in contention that the Tribunal did not expressly refer to those specific pieces of evidence in the manner particularised by the applicants in the application. Having regard to the principles set out above, the Court is of the view that the Tribunal was not required to do so and adopts the first respondent’s submissions in this regard (FRS [21]-[24]). In short:
(a)As to the applicant’s knowledge of the sponsor’s previous employment and that he had ceased working in that employment three to four years prior to the hearing, the sponsor gave evidence at the hearing that he had received compensation from a workplace accident. His evidence was that he paid $20,000.00 [from that compensation] into the joint account (Transcript p. 33, lines 28-30). At [28](c), the Tribunal stated that the sponsor had paid $20,000.00 into the joint account. The Court agrees with the first respondent’s submission (FRS [21]) that from this it can be reasonably inferred that the Tribunal was aware that the sponsor had ceased working due to a workplace accident from which he had received compensation but that the Tribunal had not considered it relevant to specifically refer to the applicant’s knowledge that the applicant had ceased working three to four years prior to the hearing in its consideration of the financial aspects of the relationship. Further, that the applicant had knowledge of this event in the sponsor’s background was not something which assumed significance in the applicants’ written or oral submissions and so it was not evidence that was of such materiality or relevance to the consideration of the financial aspects of the relationship that it would require the Tribunal to expressly refer to the applicant’s knowledge of the event;
(b)The Tribunal stated that, at the time of the application, the couple did not claim to have any joint assets or liabilities ([26]). The sponsor’s evidence at the hearing that he had tried to transfer ownership of vehicles in his name into their joint names but was unable to do so because the applicant did not have a driver’s licence does not put that finding in dispute. Accordingly, it was not necessary for the Tribunal to refer to that attempt in coming to the undisputed conclusion that the couple did not have joint assets or liabilities. Where the parties themselves did not claim to have any joint assets at the time of the application, it was not necessary for the Tribunal to descend into the detail of the attempt that the sponsor said he made to transfer the vehicles into joint names;
(c)As to the sponsor’s preference for cash transactions, the Tribunal referred ([at 38(d)]) to the fact that the majority of the withdrawals from the joint account and the sponsor’s bank account were cash withdrawals. The significance of that to the Tribunal’s reasoning and findings was that the Tribunal observed that it was not possible for it to independently verify how the couple shared their financial responsibilities. There was no claim that at the time of the visa application the couple had shared their finances. That the sponsor’s evidence was that he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank was not material to the evidentiary task the Tribunal was engaging in, that is, in determining, whether the couple combined their finances or financial responsibilities.
The Tribunal’s finding at [38]
In considering the nature of the household (including any joint responsibility for the care and support of children, the parties’ living arrangement and any sharing of housework), the Tribunal concluded as follows (at [38]):
The couple claim to share responsibility for the care and support of the secondary applicant. However, again, the oral evidence provided was non-specific and unsupported by credible corroborating material. Among other things, there is insufficient documentary evidence before the Tribunal that substantiates the claim that the secondary applicant has lived with the couple. There are only two letters addressed to the secondary applicant at the Thorneside address. The tax invoices for the Thorneside address refer to "Adults 2 Children 0". There is no enrolment information relating to the secondary applicant's schooling, for example, referring to her residential address or her emergency contacts. There is evidence that was submitted to the department that the secondary applicant has a debit card with ANZ. However, there are no bank statements for that account referring to her addresses or indicating who has made deposits made to the account. In these circumstances, I find that, at the time of application, the couple did not share responsibility for the care and support of the applicant.
The applicants contend (AS [14]) that at [38] the Tribunal found that the evidence as to the care and support of the second applicant was cursory. The Tribunal did not make that finding at [38]. Instead, at [37] the Tribunal made the finding that the oral evidence of the applicant, the second applicant and the sponsor as to how the couple share responsibility for housework was cursory. This was clearly not a finding in relation to the care and support of the second applicant.
The applicants also contend (AS [14]) that the Tribunal did not consider the nature of the second applicant's relationship with the sponsor or that she regarded him as her father and addressed him as such. The applicants referred to the second applicant’s oral evidence that she addressed the sponsor as “dad” or “daddy” (Transcript p. 30, lines 14-15; 24). The Court understands the applicants’ submission to be that the Tribunal – on the basis of that evidence – should have inferred and made a finding of a father and daughter bond or attachment and that this would not otherwise have been present had the applicant and sponsor’s relationship not been genuine (AS [14]). How a father and daughter relationship is necessarily to be inferred from the second applicant’s evidence that she referred to the sponsor as “dad” or “daddy” is not clear. The Tribunal (at [38]) considered that the oral evidence was non-specific and unsupported by credible corroborating material. In any event, whether the applicant referred to the sponsor as “dad” or “daddy” was not relevant to the task the Tribunal was engaging in which was to consider whether there was any joint responsibility for care and support of children. The Tribunal gave reasons at [38] why on the evidence before it was not so satisfied. The Court agrees with the first respondent’s submission (FRS [25]) that the second applicant’s evidence that she referred to the sponsor as “dad” or “daddy” could not realistically overcome the Tribunal’s concerns about the lack of documentary or corroborating evidence as to the couple’s shared responsibility for the care and support of the second applicant.
The sponsor’s evidence about problems encountered with the two previous representatives
The applicants contend that in making findings throughout its decision that there was insufficient evidence as to the circumstances of the applicants and the sponsor at the time of lodging the visa application in 2018, the Tribunal did not consider the evidence or explanation given by the sponsor about problems encountered with their two previous representatives (AS [15]). The sponsor’s gave oral evidence that (Transcript p. 39, lines 41-45):
We had a lot of misguidance by the first two lawyers we had. The Australian government had actually stopped the second lawyer from trading. We struggled with the first two lawyers because we did not get the right information. Had we got the information – I tried my best to get everything the lawyers asked me to get.
The contention (AS [15]) is that the sponsor’s evidence was that had they received the correct information from their representatives from the outset they would have approached the application process differently.
It is not in contention that the applicants and the sponsor were given (as outlined above) several opportunities to provide their evidence to both the Department and the Tribunal. The applicants’ evidence and submissions to the Tribunal, in this regard, do not identify with any particularity the information or categories of information that they would have provided had they been advised to do so nor in what way they would have approached the application process differently. In fact, the applicants’ solicitor told the Tribunal in written submissions that (CB 495):
The Applicant instructs that she and the Sponsor provided all of their evidence from this period to their former representatives, who advised that those materials had been submitted to the Department in support of their visa application. As such, the Applicant instructs that they have no additional evidence to the evidence already available within the Department’s file that could be submitted
There was no suggestion that the previous representatives had not provided that evidence to the Department.
At the hearing, the applicants’ solicitor told the Tribunal as to the gaps in the evidence that (Transcript p. 47, lines 4-9):
…I do understand that there’s been – you’ve mentioned that there are gaps in time of application. I will (02:28:09) the applicant did consistently agree with – present evidence of this gap. The evidence was all provided (02:28:18) if anything’s missing, but at this point – six/seven years later – they can’t really find that evidence to resubmit
The applicants’ solicitor agreed with the Tribunal that there were gaps in the evidence relevant to the time of application criterion. In fact, the evidence suggests that the applicant and the sponsor provided to their previous representatives what evidence they in fact had. It cannot be an error on the part of the Tribunal to find, as it did, that there were gaps in the evidence. It was not necessary for the Tribunal to make a specific finding as to the sponsor’s evidence as to why there were gaps in the evidence particularly given that it is not, in any event, clear from the sponsor’s evidence to the Tribunal or the submissions by the applicants’ solicitors that these gaps were attributable to some fault on the part of the previous representatives.
CONCLUSION
For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 11 June 2025
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