Singh v Minister for Immigration
[2018] FCCA 3648
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3648 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – partner (temporary) (class UK) visa – whether the Tribunal considered all of the matters it was required to consider under reg.1.15A(3) of the Migration Regulations 1994. |
| Legislation: Migration Act 1958, ss.5CB, 5F Migration Regulations 1994, regs.1.09A, 1.15A |
| Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 |
| Applicant: | JAGJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 787 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 24 July 2018 |
| Date of last submission: | 20 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Angel Aleksov |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 19 April 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 787 of 2017
| JAGJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a partner (temporary) (class UK) visa.
The matter had previously been remitted to the Tribunal. The reasons for decision for the remittal are contained in Singh v Minister for Immigration & Anor [2016] FCCA 1845.
The applicant’s claims
The applicant claimed that he was married to Ms Lancaster on 8 May 2011. He said that on 30 January 2012 he moved out of the premises he had shared with Ms Lancaster. He said they were divorced with effect from 17 October 2014. The applicant claimed that he and Ms Lancaster separated because she perpetrated family violence against him.
Legislation
The general rule is that, to be eligible for a partner visa, an applicant is required, at the time of application and at the time of decision, to satisfy the definition of de facto partner in s.5CB of the Migration Act 1958 (“the Act”) or the definition of spouse in s.5F of the Act. There are exceptions to the general rule that a person must continue to be the de facto partner or spouse of a relevant person as at the time of decision, including that the relationship has ended in circumstances of family violence perpetrated by the de facto partner or spouse on the applicant.
Section 5CB of the Act defines de facto partner as follows:
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
…
Section 5F of the Act defines spouse as follows:
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as 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.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Migration Regulations 1994 (“the Regulations”) provides that:
(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.
…
Regulation 1.09A of the Regulations is in substantially the same terms but applies to de facto partners.
The Tribunal’s reasons
The Tribunal did not accept that, as at the time of application, the applicant and Ms Lancaster were de facto partners or spouses as defined in s.5CB and s.5F respectively of the Act. Therefore, the Tribunal considered that it was unnecessary to consider whether Ms Lancaster had perpetrated family violence against the applicant.
The Tribunal did not accept that the applicant was a credible witness. In particular, the Tribunal noted that the applicant had given inconsistent evidence about the names of Ms Lancaster’s children, being, on the one hand, Renee, Robin and Jason and, on the other hand, Renee, Patrick and Matthew. The Tribunal also noted that the applicant had given inconsistent evidence about the ages of Ms Lancaster’s children, being, on the one hand, nine or 10, 14 and 18, and, on the other hand, 17, 18 and 26. The Tribunal also noted that the applicant had given inconsistent evidence about the family names of Ms Lancaster’s children, being, on the one hand, Lancaster, and, on the other hand, one completely different name for two of the children and another name entirely for the other child.
The Tribunal accepted that the applicant and Ms Lancaster were validly married. However, the Tribunal placed limited weight on the financial aspects of the relationship, the nature of the household and the commitment of each to the other, and placed no weight on the social aspects of the relationship. The Tribunal concluded that the relationship between the applicant and Ms Lancaster was not genuine. The Tribunal also made some observations about the evidence the applicant had provided in support of his family violence claim.
Ground 1
The first ground of review in the application filed on 19 April 2017 (“the application”) is:
Domestic violence was happened they are not considering
(errors in original)
Because the Tribunal did not accept that the applicant had been the spouse or the de facto partner of Ms Lancaster at the time of application, it was unnecessary for the Tribunal to consider whether the relationship had ended in circumstances of domestic violence. That is, it was not a jurisdictional error for the Tribunal to not consider whether domestic violence had occurred. This ground is not made out.
Ground 2
The second ground of review in the application is:
Intervention order was made and AAT they are saying she was in the court which is wrong. She was not there (errors in original)
The Tribunal noted in paragraph 53 of its reasons for decision that an intervention order submitted to the Tribunal by the applicant indicated that Ms Lancaster was present in court at the intervention order hearing and consented to the order being made without making admissions. However, the Tribunal further noted that the applicant told the Tribunal that Ms Lancaster was not present in court when the intervention order was made.
The Tribunal did not draw any conclusions from those circumstances. More particularly, the Tribunal did not specify or imply that it accepted that Ms Lancaster was in court when the intervention order was made. That is, the premise of this ground, that the Tribunal accepted that Ms Lancaster was in court when the intervention order was made, is without foundation.
In any event, it was unnecessary for the Tribunal to have said anything about the circumstances in which the intervention order was made, because the Tribunal had already decided that the applicant and Ms Lancaster were not in a genuine relationship at the time the application for the visa was filed. This ground is without substance.
Additional matter
The court noted at the hearing that the Tribunal might not have considered all of the matters that it was required to consider under reg.1.09A and reg.1.15A of the Regulations, as explained by the Full Court of the Federal Court in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206. In that case, the Full Court said:
73. Regulation 1.15A(3) itself identifies circumstances of the relationship that the Tribunal must consider. It is prescriptive. It deems each of the prescribed circumstances, or matters, to be relevant to the question of whether there is a married relationship. The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances.
74. As has been discussed, the structure of reg 1.15A(3) commences with four principal matters (the principal matters) set out in paragraphs (a) to (d) that must be considered, namely:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship; and
(d) the nature of the persons’ commitment to each other.
75. There are then set out a series of specific matters (numbered with Roman numerals) relevant to the principal matters. So, for example, when considering “(b) the nature of the household”, the Tribunal is expressly required to consider:
(i) any joint responsibility for the care and support of children;
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework.
76. In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i) whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii) whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
77. So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
…
79. The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act … The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3). (citations omitted)
…
85. It is true that the Tribunal set out no express finding as to whether Ms He and Mr Xu were cohabiting at the time of the decision. However, an inference is available from the Tribunal’s reasons read as a whole that the Tribunal did make such a finding upon this matter as part of its mental process in making its decision. As we have said, the Tribunal rejected the evidence of Ms He and Mr Xu that they had cohabited throughout their marriage. The appellants advanced no case that Ms He and Mr Xu had lived together for a time, and then separated for a time, but had resumed living together by the time of the hearing before the Tribunal. The Tribunal was not required to speculate about that prospect. The Tribunal was not satisfied that there was ever a genuine and continuing marital relationship. The Tribunal must be understood to have found that it was not satisfied that they had lived together at any time. The Tribunal did consider Ms He’s and Mr Xu’s living arrangements as at the date of its decision as was required under reg 1.15A(3)(b)(ii).
86. Regulation 1.15A(3)(c)(ii) requires the Tribunal to consider “the opinion of the persons’ friends and acquaintances about the nature of the relationship”. The Tribunal noted that Ms He and Mr Xu had provided evidence from family members and others attesting to their relationship. The Tribunal referred to evidence from Mr Xu’s ex-wife and his son. The Tribunal’s reasons reveal no specific findings as to whether it accepted or rejected that evidence, or whether it was unable to reach a conclusion upon that evidence. However, this is not a case in which it should be inferred that the Tribunal failed to make a finding upon the matter as part of its mental process involved in making its ultimate decision. The Tribunal stated that it was not prepared to accept the evidence of Ms He and Mr Xu as credible. It follows from that finding that the Tribunal was not prepared to accept the evidence of the witnesses as reliable. When the reasons are read as whole, it should not be inferred that the Tribunal failed to make a finding upon the relevant matter.
87. For these reasons, the appellants’ first ground of appeal must be rejected. That is not to say that we endorse the Tribunal’s written statement as a model of well-written reasons. As was said in Salahuddin at [23] and [31], where a statute requires that consideration be given to specified matters, it is preferable for a decision-maker to expressly refer to such matters.
The Minister submitted that He was consistent with the earlier decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145, which concerned a different statutory context. In Khadgi, the Full Court said:
57. Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: (citations omitted)
58. In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.
59. Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.
60. In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).
61. We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
…. a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.
62. In our opinion, the prescribed circumstances to which the Minister must have regard in the present case are of the latter kind. There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
63. In Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54] (pp 7–8), the Full Court held:
(a) In circumstances where a decision-maker is required to have regard to several specified or prescribed mandatory considerations, he or she must genuinely have regard to each and every one of those considerations and must engage actively and intellectually with each and every one of those considerations by thinking about each of them and by determining how and to what extent (if at all) each of those criteria might feed into the deliberative process and the ultimate decision; and
(b) The reasons for decision published by a decision-maker who is obliged to have regard to mandatory considerations should show such an active intellectual engagement with all mandatory criteria although such reasons are:
… meant to inform and [are] not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272].
64 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46] (p 641), the Full Court held that:
(a) It is not necessary for an administrative decision-maker such as the Tribunal to refer in its written reasons to every piece of evidence and every contention made by an applicant;
(b) It may be that some evidence is irrelevant to the criteria and some contentions misconceived; and
(c) The reasons of a tribunal such as the Tribunal in the present case should not be scrutinised “with an eye keenly attuned to error” nor is it necessary to provide reasons of a kind that might be expected of a court of law.
65. At [47] of its reasons in WAEE, the Full Court said:
47. The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
66. Zhong is not authority for any contrary propositions. In Zhong, Lander J held that, in the circumstances of that case, s 107 of the Act had never been engaged. His Honour then held that, if he were wrong in his primary conclusion and if s 107 had been engaged so that the delegate had been entitled to give the notice which was given, the notice failed to comply with s 107 in that it did not particularise the alleged non-compliance. At [81] and [82] (p 460) of his reasons, his Honour said:
81 If I am wrong about s 107 never being engaged and the delegate was entitled to give the notice which was given, the notice in my opinion failed to comply with s 107 in that it did not particularise the possible non-compliance. Because particulars of the non-compliance were not given, it meant that the appellant could not give a written response to the notice disputing there was non-compliance and showing there was compliance as provided for in s 107(1)(b). The giving of a notice which complies with s 107 of the Act is a statutory precondition to the exercise of the Minister's or delegate's power to cancel the visa: cf Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60.
82 In my opinion, for that second reason, the notice given did not comply with s 107. In my opinion, the decision to cancel the visa must be quashed.
67. Having decided the matter on the bases described at [66] above, Lander J went on to provide yet a further reason why the decision in that case could not stand. His Honour held, probably by way of obiter, that the Tribunal had not given specific consideration to the mandatory criterion specified in reg 2.41(k). Whilst it is true that, in considering this point, his Honour said, at [84]–[86] (p 460) of his reasons:
84 The federal magistrate found that one of the reasons for rejecting the appellant’s arguments was that the positive factors were outweighed by the “extremely adverse findings that the Tribunal has made above regarding the provision of false and misleading evidence and fraudulent documentation”.
85 It might be thought that the federal magistrate was thereby excusing the Tribunal from its statutory obligation to enquire into the question of the appellant’s contribution to the community. Whilst the Tribunal was entitled to make the adverse findings that it made in relation to the appellant’s conduct, that did not relieve it of its obligation to comply with the injunctions under s 109(1)(c) and reg 2.41(k) to specifically enquire into any contribution made by a holder to the community.
86 A reading of the Tribunal’s reasons shows that it did not make that enquiry. It was not excused from doing so for the reason given by the federal magistrate. The Tribunal thereby failed to exercise its jurisdiction.
His Honour did not intend to suggest in these passages that the Tribunal had an obligation which was different from that which was mandated by s 109(1)(c). The use by his Honour of the expression “specifically enquire into” in respect of the relevant criterion was not intended to recast the decision-maker’s statutory obligation. What the decision-maker is required to do is to “have regard to” the relevant criterion. In the present context, the expression “have regard to” imposes upon the Minister the obligation to engage with the criteria laid down in reg 2.41 in the manner described by us at [57]–[62] above.
68. There are ten criteria specified in reg 2.41. The list of factors set out in reg 2.41 is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That list contains all of the mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account. There is nothing in the language of reg 2.41, the terms of s 109 or the context in which reg 2.41 is to be applied which requires that the Minister should give any particular weight to any one factor or group of factors nor is there any indication in any of those materials that one or more factors are to be accorded primacy. The weight to be given to any one factor or group of factors is entirely a matter for the Minister and will vary from case to case. Further, in any given case, facts and matters which might properly be raised under one subparagraph of the regulation may also be quite properly raised under other subparagraphs of the regulation.
69. It is not essential for the Tribunal, when conducting a review of a delegate’s decision to cancel a visa under s 109(1) of the Act, to compartmentalise its reasons and to set out those reasons by reference to each criterion specified in reg 2.41. That may be a convenient and appropriate method for the Tribunal to adopt in many cases but it is not the only way for the Tribunal to demonstrate that it has had regard to all of the mandatory criteria specified in reg 2.41.
70. Of course, as the Full Court said in Lafu at [50] (p 8), the Court is entitled to look closely at the structure of the Tribunal’s reasons in order to assess whether it truly has had regard to all mandatory criteria. If, for example, the Tribunal chooses to list each of the reg 2.41 criteria and to make observations and findings in respect of each of those criteria in turn as part of a discrete section of its reasons, the Court which undertakes judicial review of those reasons may be driven to conclude that all of the Tribunal’s reasons concerning the reg 2.41 factors are contained in that section of the Tribunal’s reasons. But that will not necessarily be so. Each case must be looked at and evaluated according to its own particular circumstances.
71. The question of whether or not a decision-maker has had regard to all mandatory criteria is a question of fact. That question will usually have to be determined by the Court undertaking a close analysis of the decision-maker’s reasons without the benefit of other evidence, for example, from the decision-maker. As the Full Court said in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]:
… However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.
After the court raised the question of whether the Tribunal had complied with He, the Minister sought time to obtain the transcript of the Tribunal hearings, presumably to show what evidence had been adduced in relation to each of the factors set out in reg.1.09A and reg.1.15A of the Regulations, and time to file written submissions. The applicant was agreeable to that course.
Orders were made by consent for:
a)the Minister to file and serve any transcript of the Tribunal hearings in this matter and any further written submissions;
b)the applicant to file and serve any affidavit on which he wished to rely and any written submissions; and
c)the court to make its decision without a further oral hearing.
It was explained to the applicant that if he considered that the transcripts provided by the Minister were inaccurate in some significant way, he could file an affidavit identifying the errors. If the applicant had done that, it may have been necessary to have a further oral hearing.
The Minister filed an affidavit exhibiting the transcript of the Tribunal hearing and filed further written submissions. The applicant did not file any affidavit or written submissions, which were due to be filed on 18 September 2018. Consequently, the court has proceeded to determine this matter without a further oral hearing.
The first bundle of matters that the Tribunal was required to consider by reg.1.09A(3) and reg.1.15A(3) of the Regulations was:
(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; …
In relation to the question of whether there was any joint ownership of real estate or other major assets, as the Tribunal was required to consider by reg.1.09A(3)(a)(i) and reg.1.15A(3)(a)(i) of the Regulations, the Minister submitted that:
There was no evidence of any joint ownership of real estate or other major assets. It should not be inferred that the Tribunal failed to consider this matter from the failure to mention it in terms.
That was an odd submission, because the Tribunal did, in fact, mention this matter in express terms. The Tribunal said at paragraph 28 of its reasons for decision:
… While there is no requirement … that the parties acquired any or any significant joint assets …, there is no evidence that they did so.
Consequently, the Tribunal considered the matter that it was required to consider by reg.1.09A(3)(a)(i) and reg.1.15A(3)(a)(i) of the Regulations.
The Minister submitted that paragraphs 27 to 28 of the Tribunal’s reasons for decision squarely addressed the matters required to be considered by reg.1.09A(3)(a)(ii) and reg.1.15A(3)(a)(ii) of the Regulations. Those paragraphs of the Tribunal’s reasons for decision, with the heading used by the Tribunal, are as follows:
Financial aspects of the relationship
27. Mr Singh and Ms Lancaster did not ever open a joint bank account. Mr Singh said they approached two banks for the purpose but were unable to open an account together because she had “a bad relationship” with the bank(s). Mr Singh and Ms Lancaster had individual accounts. Mr Singh said that they were able to view each other's bank statements online but they could not operate each other's account. He said that at first Ms Lancaster made a contribution to household expenses but after a while she stopped doing that and they fought about money. She was drinking, smoking and visiting the TAB, he said. He was paying the expenses and she was asking him for money even though she had a job. Mr Singh paid the rent for the northern suburbs premises. He thinks that Ms Lancaster and possibly her eldest child (who was working) paid the rent for the western suburbs premises. Mr Singh told the Tribunal that Ms Lancaster received a number of fines and toll invoices, totalling about $1,500, he thought. He paid $80-150 or thereabouts towards the fines and invoices before he decided that he should not have to do that.
28. Mr Singh told the Tribunal in December 2016 that his and Ms Lancaster’s financial resources were not combined. The Tribunal has however taken into account comments made in the Court judgment about Mr Singh’s payment of household expenses (when Ms Lancaster would not contribute), and his payment of some of her fines, representing a pooling of financial resources. The evidence indicates that - putting the matter of rent to one side - expenses were not really shared, apart possibly from the earliest time that Mr Singh says he ·and Ms Lancaster lived together. While there is no requirement, for instance, that the parties acquired any or any significant joint assets or liabilities, or that they made mutual wills or nominated each other as beneficiaries for the purposes of their superannuation, there is no evidence that they did so.
The Tribunal considered whether there were any joint liabilities, as required by reg.1.09A(3)(a)(ii) and reg.1.15A(3)(a)(ii) of the Regulations, when it said in paragraph 28 of its reasons for decision:
… While there is no requirement … that the parties acquired any or any significant joint … liabilities, … there is no evidence that they did so.
In relation to the question of whether there was any pooling of financial resources, which the Tribunal was required to consider by reg.1.09A(3)(a)(iii) and reg.1.15A(3)(a)(iii) of the Regulations, the Minister made some submissions about legal obligations, which seem to be in error. In any event, the Tribunal considered the question of the pooling of financial resources when it said at paragraph 28 of its reasons for decision:
Mr Singh told the Tribunal in December 2016 that his and Ms Lancaster’s financial resources were not combined. The Tribunal has however taken into account comments made in the Court judgment about Mr Singh’s payment of household expenses (when Ms Lancaster would not contribute), and his payment of some of her fines, representing a pooling of financial resources. The evidence indicates that - putting the matter of rent to one side - expenses were not really shared, apart possibly from the earliest time that Mr Singh says he ·and Ms Lancaster lived together. …
The Minister submitted that the Tribunal squarely addressed in paragraphs 27 and 28 of its reasons for decision whether either party owed any legal obligation in respect of the other, as required by reg.1.09A(3)(a)(iv) and reg.1.15A(3)(a)(iv) of the Regulations. The Minister did not say exactly where in those paragraphs the Tribunal squarely addressed that issue. The Minister’s submission on this point may have been in error, as the Minister made submissions about legal obligations in relation to reg.1.15A(a)(iii) of the Regulations.
In any event, I am unable to discern anywhere in paragraphs 27 and 28 or elsewhere in the Tribunal’s reasons for decision where the Tribunal considered whether either party owed any legal obligation in respect of the other. A legal obligation owed by one party in respect of the other would be, for example, a guarantee given by one party for the other’s debt, or an obligation as a trustee to a beneficiary. A legal obligation owed in respect of another party is a different thing from a joint liability, or a voluntary payment of another’s debt.
However, there was no evidence in this case that either the applicant or Ms Lancaster owed a legal obligation in respect of the other. Consequently, even if the Tribunal failed to consider that issue, it could not have made a difference to the decision.
The Tribunal considered the basis of any sharing of day‑to‑day household expenses, as required by reg.1.09A(3)(a)(v) and reg.1.15A(3)(a)(v) of the Regulations. In this regard, the Tribunal said:
27. Mr Singh … said that at first Ms Lancaster made a contribution to household expenses but after a while she stopped doing that and they fought about money. … He was paying the expenses and she was asking him for money even though she had a job. Mr Singh paid the rent for the northern suburbs premises. He thinks that Ms Lancaster and possibly her eldest child (who was working) paid the rent for the western suburbs premises. ….
28. Mr Singh told the Tribunal in December 2016 that his and Ms Lancaster’s financial resources were not combined. ... The evidence indicates that - putting the matter of rent to one side - expenses were not really shared, apart possibly from the earliest time that Mr Singh says he ·and Ms Lancaster lived together. …
The second bundle of matters that the Tribunal was required to consider under reg.1.09A(3) and reg.1.15A(3) of the Regulations was:
(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; …
The Minister submitted that the Tribunal squarely addressed the question of any joint responsibility for the care and support of children, as required by reg.1.09A(3)(b)(i) and reg.1.15A(3)(b)(i) of the Regulations, in paragraphs 16 to 18 and 30 to 31 of its reasons for decision. Those paragraphs are as follows:
16. When giving evidence to the MRT Mr Singh said that Ms Lancaster’s children are named Renee, Robin and Jason. According to the visa application, and the oral evidence he gave in 16 December 2016, their names are Renee, Patrick and Mathew. Mr Singh told the Tribunal that he was so nervous during the first hearing that he gave the wrong names. Mr Singh said that he and Ms Lancaster lived more or less “half-half” between what at the date of marriage was his address in a northern suburb of Melbourne and her address in a western suburb. He said that only Ms Lancaster’s youngest, a girl, lived with them in the northern suburb: the boys did not want to live there so they stayed in the western suburb. Mr Singh also told the MRT that the children's respective ages were 9 or 10, 14 and 18 but this was not consistent with the dates of birth appearing in the visa application. (According to the dates of birth in the visa application their ages would have been 17, 18 and 26 at the time of the MRT hearing in May 2015, and their ages were 18, 20 and 27 years at the time of the · December 2016 hearing. Mr Singh’s error is therefore significant and includes an error about the children’s ages relative to each other). Mr Singh told the Tribunal that his error about the children’s ages during the MRT hearing was also the result of nerves. He was able to state the children’s years of birth. Mr Singh also said tha.t the children all had the same father and the same family name: Lancaster. On the other hand, the visa application indicates that the younger two children bear the name of Ms Lancaster’s ex-husband (which is not Lancaster) and that the eldest has a different family name altogether. Concerning Ms Lancaster’s parents, Mr Singh said they were deceased though he could not explain why that was not recorded in the visa application where the form prompted that information to be given. He also told the MRT about two siblings Ms Lancaster has, only one .of whom he could name, whereas the visa application refers to nine siblings. Mr Singh said more or less that it was that he had heard of only two of Ms Lancaster’s siblings. He did not meet the two siblings he had heard about. .
17. Generally commenting on the above evidence Mr Singh said that he and Ms Lancaster did not discuss with each other the details about their families and that he knew her children by their given names only.
18. The problem is not simply that Mr Singh lacked a knowledge about Ms Lancaster’s family that he might reasonably be expected to have if he and Ms Lancaster had been in a genuine married relationship. His lack of knowledge for instance about her siblings, while surprising, might perhaps be understandable if he had not met them. The real problem - notwithstanding the passage of time since the relationship is said to have ended - is Mr Singh’s inability to state confidently and accurately the names, including family names, and ages of Ms Lancaster’s children, given especially that he claimed to have shared a household with her daughter at least. This contributes to the Tribunal not accepting as credible the evidence Mr Singh gave about his relationship with Ms Lancaster. (emphasis added)
…
30. Mr Singh claims that he and Ms Lancaster effectively maintained two households and moved between the properties. He said that Ms Lancaster moved into the northern suburbs premises with him a month before the marriage but after six-seven months she went back to the western suburbs premises. Mr Singh said that he was with her there on the day the relationship ended and he moved out. A residential tenancies agreement in relation to the northern suburbs premises was submitted to the Department. It is dated 2 June 2011. Mr Singh and Ms Lancaster are named as tenants. Asked about this, and about why so many bills and other items of correspondence were addressed to Ms Lancaster at that address while she was maintaining the western suburbs address, Mr Singh said that the intention had been for all her children to move with her into the northern suburbs address but the older two children would not go to live there. He said also that for a while the northern suburbs address was conveniently located for Ms Lancaster’s work.
31. Mr Singh said that he and Ms Lancaster had different working hours so to a degree they self-catered. She prepared a meal for herself in the morning but would cook for him in the evening. He said that they did things at both properties to help the other but after four or five months Ms Lancaster stopped doing things to help. For a while Ms Lancaster did some vacuuming and washing but then she stopped that. There had been discussion that her daughter might change schools (and go to a school closer to the northern suburbs address) but she kept going to school in the western suburb. Asked about any care or support he provided to any of Ms Lancaster’s children, Mr Singh said that on Sundays he sometimes went out for lunch with Ms Lancaster and her daughter. (emphasis added)
The Tribunal considered the question of whether the applicant had assumed any joint responsibility for the care and support of Ms Lancaster’s children, as required by reg.1.09A(3)(b)(i) and reg.1.15A(3)(b)(i) of the Regulations, in the passages highlighted in bold above.
In relation to the living arrangements of the applicant and Ms Lancaster, which the Tribunal was required to consider by reg.1.09A(3)(b)(ii) and reg.1.15A(3)(b)(ii) of the Regulations, the Minister submitted that that matter was squarely addressed in paragraphs 30 and 31 of the Tribunal’s reasons for decision. I accept that submission.
In relation to the question of whether there was any sharing of housework, as the Tribunal was required to consider by reg.1.09A(3)(b)(iii) and reg.1.15A(3)(b)(iii) of the Regulations, the Minister submitted that question was sufficiently addressed in paragraph 31 of the Tribunal’s reasons for decision, given the limited evidence on the topic. I accept that submission.
The third bundle of matters that the Tribunal was required to consider under reg.1.09A(3) and reg.1.15A(3) of the Regulations was:
(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 …
The Minister submitted that these matters were all squarely addressed in paragraphs 19 to 22 and 35 of the Tribunal’s reasons for decision. Those paragraphs, and paragraph 36, are as follows:
19. The statutory declarations in support of the visa application are couched in only very general terms. One of them in particular is anomalous. It is made by a person whom Mr Singh said is Ms Lancaster’s friend: Ms Amanda Staines. Mr Singh told the Tribunal that he had met Ms Staines twice; once before and once after he married Ms Lancaster. He said he was sure about the number of times he met Ms Staines. He was introduced to her as “Jag” and she called him that. Ms Staines’ statutory declaration however does not refer to Mr Singh by his given name or any form of his given name but rather - twice - as “Singh”. This casts doubt on Ms Staines’ true knowledge of Mr Singh and her knowledge of Ms Lancaster’s relationship with him. Of more serious concern, given Mr Singh’s evidence, is that Ms Staines also declares that “we [(Ms Lancaster, Mr Singh and Ms Staines)] often spend weekends together on family outings [and] occasions”. Commenting on this, Mr Singh said that he had met Ms Staines two or three times and that she may have made a mistake in the way she expressed the number of times they met.
20.Another declarant, Mr Singh’s cousin Jeetpal, stated in August 2011 that he was residing with Mr Singh and Ms Lancaster in the northern suburb at the time yet there is no mention by him of any child of Ms Lancaster. Mr Singh told the Tribunal that Jeetpal was not a tenant and was only “in and out” of the premises. The final statutory declaration submitted to the Department, made by Mr Maneesh Sharma (who described Mr Singh as the cousin of his friend and colleague), was cast in general terms only.
21. Only Mr Singh gave oral evidence to the Tribunal. No other person gave oral evidence. The Tribunal has mentioned the poor quality of the statutory declarations submitted. Significantly, there were no statements by anyone in Mr Singh’s immediate family in India - his parents and his brother - even though Mr Singh said that he told his family about Ms Lancaster at about the time he married her.
22.These matters and the problems with Ms Staines’ statutory declaration, and the inconsistency between her declaration and Mr Singh’s oral evidence, contribute to the Tribunal not accepting as credible the evidence Mr Singh gave about his relationship with Ms Lancaster.
…
Social aspects of the relationship
35.The evidence concerning the social aspects of the relationship is very limited and in some aspects unreliable. The Tribunal has mentioned the statutory declarations that were submitted. Neither Ms Staines nor the other declarants provide more than general statements about the relationship. The Tribunal considers Ms Staines’ and Mr Jeetpal Singh’s statutory declarations, in particular, to be unreliable. It is to be noted that no evidence by anyone in Mr Singh’s immediate family has been submitted in support of the application yet Mr Singh gave evidence that his family knew of the marriage. The small number of photos that were submitted mainly show Mr Singh and Ms Lancaster together at the time of their marriage, or together in other settings, including some taken in Canberra. There are some photos that include Mr Jeetpal Singh and Ms Staines and another person. The Tribunal considers these photographs to be of no real probative value in the circumstances.
36. The Tribunal places no weight on this consideration.
Contrary to the Minister’s submission, it is clear that the Tribunal did not squarely consider the question of whether the applicant and Ms Lancaster represented themselves to other people as being married to each other, which the Tribunal was required to consider by reg.1.09A(3)(c)(i) and reg.1.15A(3)(c)(i) of the Regulations, in paragraphs 19 to 22 or 35 to 36 of its reasons for decision or elsewhere in those reasons.
The usual place in which evidence is given that people represent themselves to other people as being married is in the statutory declarations lodged with the visa application. The Tribunal assessed the evidence given in the statutory declarations made by Ms Amanda Staines and Mr Jeetpal Singh to be unreliable. That left the statutory declaration of Mr Maneesh Sharma. The Tribunal said at paragraph 20 of its reasons for decision that Mr Sharma’s statutory declaration was cast in general terms only.
However, Mr Sharma’s statutory declaration said that he is a real estate agent and that:
Jagjeet Singh is cousin of my very good friend and colleague. I met Gail before their wedding at their residence. We meet twice a month and go out.
I believe Jagjeet and Gail relationship is very genuine, because whenever I meet them at common get together they are always happy and always discussing their future life, buying house and family. So I highly recommend their relationship is genuine and continuing.
While some of that statement might be described as general, the statement that Mr Sharma met the applicant and Ms Lancaster twice a month and they were always discussing their future, including buying a house and having a family, is very specific, and suggests that the applicant and Ms Lancaster were representing themselves to Mr Sharma at least as a married couple.
The Tribunal did not expressly consider that aspect of the evidence. However, I note that in somewhat similar circumstances in He, the Full Court of the Federal Court said at [86]:
… However, this is not a case in which it should be inferred that the Tribunal failed to make a finding upon the matter as part of its mental process involved in making its ultimate decision. The Tribunal stated that it was not prepared to accept the evidence of Ms He and Mr Xu as credible. It follows from that finding that the Tribunal was not prepared to accept the evidence of the witnesses as reliable. When the reasons are read as whole, it should not be inferred that the Tribunal failed to make a finding upon the relevant matter.
In relation to the opinion of the persons’ friends and acquaintances about the nature of the relationship, which the Tribunal was required to consider under reg.1.09A(3)(c)(ii) and reg.1.15A(3)(c)(ii) of the Regulations, the Tribunal did not expressly consider the evidence given by Mr Sharma. However, for the reasons given in relation to reg.1.09A(3)(c)(i) and reg.1.15A(3)(c)(i) of the Regulations, I accept that the Tribunal adequately considered this matter.
In relation to any basis on which the persons plan and undertake any social activities, which the Tribunal was required to consider under reg.1.09A(3)(c)(iii) and reg.1.15A(3)(c)(iii) of the Regulations, the Tribunal did not expressly consider the evidence given by Mr Sharma, which obviously addresses at least some of the applicant’s and Ms Lancaster’s social activities. However, for the reasons given in relation to reg.1.09A(3)(c)(i) and reg.1.15A(3)(c)(i) of the Regulations, I accept that the Tribunal adequately considered this matter.
The fourth bundle of matters that the Tribunal was required to consider under reg.1.09A(3) and reg.1.15A(3) of the Regulations was:
(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.
In relation to the duration of the relationship, which the Tribunal was required to consider under reg.1.09A(3)(d)(i) and reg.1.15A(3)(d)(i) of the Regulations, the Minister submitted that the Tribunal squarely addressed the matter in paragraph 7 of its reasons for decision. That paragraph is as follows:
According to the visa application and material in support, Mr Singh met Ms Lancaster in December 2010. Mr Singh’s work in sales took him to regional Victoria where Ms Lancaster was visiting a relative. They met when he was working, going from door to door. They went to a café together. They formed a relationship afterwards when they were back in Melbourne. They made a commitment to each other on 1 April 2011. They were married on 8 May 2011. Ms Lancaster was previously married – from 2003 to 2005. She works as a “driver/cleaner”. She has three children.
Obviously, that paragraph says nothing about the duration of the relationship, because it did not say when it ended. However, paragraph 8 of the Tribunal’s reasons for decision is as follows:
Mr Singh provided to the MRT a copy of the order relating to his divorce from Ms Lancaster with effect from 17 October 2014. He told the Tribunal that he moved out on 30 January 2012 and that that was the last time he saw Ms Lancaster.
Consequently, it is clear that the Tribunal considered the duration of the relationship.
In relation to the length of time during which the persons lived together, which the Tribunal was required to consider under reg.1.09A(3)(d)(ii) and reg.1.15A(3)(d)(ii) of the Regulations, the Minister submitted that paragraphs 16, 30 and 33 of the Tribunal’s reasons for decision sufficiently addressed the matter, given the limited evidence on the issue.
Paragraphs 16 and 30 of the Tribunal’s reasons for decision are set out above. Paragraph 33 is as follows:
While the Tribunal accepts that Mr Singh and Ms Lancaster entered a residential tenancies agreement together and that correspondence was directed to Ms Lancaster at the northern suburbs address, the Tribunal does not accept that Mr Singh and Ms Lancaster genuinely established a household together at either the northern suburbs address or the western suburbs address.
The Tribunal evidently considered that the applicant and Ms Lancaster did not live together at all. As such, the Tribunal considered the matter that it was required to consider by reg.1.09A(3)(d)(ii) and reg.1.15A(3)(d)(ii) of the Regulations.
In relation to the degree of companionship and emotional support that the persons draw from each other, which the Tribunal was required to consider under reg.1.09A(3)(d)(iii) andreg.1.15A(3)(d)(iii) of the Regulations, the Minister submitted that paragraphs 37 to 42 of the Tribunal’s reasons for decision sufficiently addressed the matter, given the limited evidence on the issue.
Paragraphs 37 to 42 of the Tribunal’s reasons for decision are as follows:
Nature of persons’ commitment to each other
37. Written statements by Mr Singh and Ms Lancaster that were submitted to the Department about the relationship – especially Ms Lancaster’s statement – lack detail about the nature of the relationship or the nature of the parties’ claimed commitment to each other. In her written statement Ms Lancaster really did no more than assert that she and Mr Singh met and formed a “close and loving relationship”, decided to commit to a long term relationship, got married, and were living together and planning their future. Mr Singh told the Tribunal that he and Ms Lancaster fell in love. He said his previous life had been “ridiculous”: he and Ms Kaur had fought each other. (Mr Singh said that he and Ms Kaur were together again now because of their child).
38. The psychologist’s report records that Mr Singh said to the psychologist that he and Ms Lancaster fell in love and that “[f]or some time married life appeared to be good”, but there started to be arguments about money and Ms Lancaster began to abuse him verbally and physically. There is nothing to indicate that the psychologist did not accept what Mr Singh had to say, but the Tribunal’s inquiry is obviously a different one and the Tribunal must make its own determination.
39. There is evidence in the form of some photographs and an accommodation receipt to support Mr Singh’s oral evidence that after the marriage he and Ms Lancaster travelled to Canberra together.
40. It is claimed that Mr Singh and Ms Lancaster lived together for a period of months, and even that Ms Lancaster’s daughter was with her and Mr Singh at the northern suburbs address. For reasons already given, the Tribunal does not accept that Mr Singh and Ms Lancaster genuinely established a household together. In this context the Tribunal mentions that it considers it to be significant that Mr Jeetpal Singh’s statutory declaration makes no mention of any child living with Ms Lancaster and Mr Singh at the northern suburbs address.
41. When asked about any previous relationships Ms Lancaster has had, Mr Singh said that she was married in 2003. He said he thought she was divorced in 2005. He said he could not remember that. He said that did not know if she had had any other partners but he went on to imply that he thought she may have, because once when he was checking her emails he found “dirty messages” there. The Tribunal has mentioned that Mr Singh was evidently unaware that Ms Lancaster’s oldest child has a different family name to the younger two. He was unable to explain the different family name.
42. The problems in Mr Singh’s evidence and the evidence generally that the Tribunal has noted so far undermines his claims ever to have had a relevant commitment to Ms Lancaster. That evidence, but also the generality of Ms Lancaster’s written statement, and the evidence regarding her apparent financial exploitation of Mr Singh in circumstances where she had her own job yet demanded he pay even her fines undermines the claim that she ever had a relevant commitment to him.
The Tribunal did not deal expressly with the question of the degree of companionship and emotional support that the persons draw from each other. However, it seems implicit, from the Tribunal’s finding that the applicant and Ms Lancaster never genuinely established a household together and from the finding that the applicant never had a relevant commitment to Ms Lancaster, that the Tribunal did not accept that the applicant and Ms Lancaster provided any significant degree of companionship and emotional support to each other. On that basis, the Tribunal considered this matter.
In relation to whether the persons see the relationship as long-term, which the Tribunal was required to consider under reg.1.09A(3)(d)(iv) and reg.1.15A(3)(d)(iv) of the Regulations, the Minister submitted that paragraphs 37 to 42 of the Tribunal’s reasons for decision sufficiently addressed the matter, given the limited evidence on the issue.
The Tribunal adequately considered this matter, as it clearly considered that the applicant and Ms Lancaster did not have a genuine relationship at all.
Consequently, it seems to me that the Tribunal did adequately consider all of the matters it was required to consider under reg.1.09A(3) and reg.1.15A(3) of the Regulations.
Conclusion
The applicant did not identify any jurisdictional error in this matter and I have been unable to discern any. Accordingly, the application will be dismissed. As the case took a somewhat unusual turn, I will hear the parties on the question of costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 11 December 2018
2
20
0