Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 356
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 356
File number(s): MLG 1843 of 2017 Judgment of: JUDGE DAVIS Date of judgment: 13 May 2022 (and reasons for judgment made public by Judge Blake pursuant to subsection 210(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) on 24 May 2022) Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeal Tribunal – refusal to grant a partner visa – whether the Tribunal failed to consider 1.15A(3)(b)(iii) of the Migration Regulations 1994 (Cth) – where the Tribunal did not expressly make a finding on all matters in reg 1.15A(3) – appeal dismissed Legislation: Migration Act 1958 (Cth) s 5F, 65
Migration Regulations 1994 (Cth) reg. 1.15A
Cases cited: BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76
Fang v Minister for Immigration [2021] FCA 674
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Multani v Minister for Immigration [2020] FCCA 155
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 22 October 2021 Place: Melbourne Counsel for the Applicant Mr Aleksov Counsel for the First Respondent Mr Barrington ORDERS
MLG 1843 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATIONAND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application be dismissed.
3.The applicant is to pay the first respondent’s costs fixed in the sum of $7,853.
REASONS FOR JUDGMENT
JUDGE DAVIS
APPLICATION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 31 July 2017. By that decision, the Tribunal affirmed an earlier decision made by the delegate of the First Respondent (Minister), on 27 November 2015, to refuse the Applicant a Partner (Residence)(Class BS) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Migration Act).
By his amended application, filed 14 October 2021 (Amended Application), the Applicant in effect seeks the following relief:
(a)A writ of certiorari issue to the Tribunal in review case number 1516685 dated 31 July 2017, quashing its decision in respect of the Applicant.
(b)A writ of prohibition be directed to the Minister preventing him or his agents or delegates from acting upon giving effect to enforcing Tribunal’s decision.
(c)A writ of mandamus be directed to the Tribunal, requiring it to rehear and determine the Applicant’s Application for review according to law.
(d)The Minister pay the Applicant’s cost of the proceedings.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
Temporary visa
The Applicant is male citizen of India. On 7 September 2012, he applied for a for a Partner (Temporary) (Class UK)(Subclass 820) visa and a Partner (Residence) (Class BS) Subclass 801) visa. That application was sponsored by Daisy Kypreos (the Sponsor), whom he married on 24 July 2012. On 4 July 2014, the Applicant was granted a Partner (Temporary) (Subclass 820) visa.
The delegate’s refusal to grant the Visa
On 30 December 2014, the Department received adverse information in relation to the Applicant. The source alleged that the Applicant paid $25,000 to the Sponsor for her sponsorship and that he would pay a further $20,000 when the visa was granted. The source also alleged, among other things, that the Applicant and the Sponsor did not live together and that the Applicant was engaged to another woman who was currently in India.
On 6 February 2015, the Applicant and the Sponsor attended an interview with a delegate of the Minister in relation to the application for the Visa.
On 10 February 2015, the Department wrote to the Applicant inviting him to comment on the adverse information referred to above.
The Applicant’s then representative, Vision Overseas, filed detailed submissions responding to the adverse information.
On 27 November 2015, the Applicant received notification that their Visa had been refused by the Minister’s delegate. The delegate found that the Applicant and Sponsor were not in a genuine relationship and therefore did not satisfy 5F of the Migration Act.
Review by the Tribunal
The Applicant applied to the Administrative Appeals Tribunal for review of the Minister’s decision. He appeared before the Tribunal on 8 May 2017 and again on 10 June 2017 to give evidence in support of his application. The Sponsor also gave evidence before the Tribunal.
On 31 July 2017, the Tribunal affirmed the delegate’s decision not grant the Visa.
In its reasons, the Tribunal found the evidence which the Applicant and Sponsor gave regarding their relationship, and in particular their cohabitation, to be unreliable. At [33] the Tribunal found:
The applicant stated his cousin lived with them in the Keysborough home for a few months. The sponsor stated he resided there for two nearly years, from the end of 2014 to the end of 2016. In his comments and response, the applicant stated that his cousin was there for most of the time, but moved out three or four months before they moved to Frankston North. The tribunal has considered that the applicant has changed his evidence to be similar to the sponsor's evidence. The tribunal notes that the evidence of the applicant and sponsor is that they moved to Frankston North of the end of 2016, and the sponsor stated that the applicant's cousin lived at the Keysborough house till the end of 2016, the further evidence in the comments and response of the applicant that the cousin moved out three or four months before the end of 2016 is still inconsistent with the evidence of the sponsor. The tribunal accepts that people can have different recollections of things, but does not accept the applicant would not recollect that his cousin resided with them for approximately twenty months, rather than few months. The tribunal again notes the evidence of the applicant in his comments or response indicates his willingness to change his evidence, which suggests to the tribunal his evidence may not be reliable The tribunal finds the inconsistent evidence about how long one other person shared their home indicates that the evidence of the applicant and sponsor may not be reliable about whether they resided at the same premises.
[Errors in original. Emphasis added.]
At [45] – [49] , the Tribunal stated:
The tribunal has balanced the inconsistent evidence and evidence that lacked credibility with the other evidence before it. The tribunal has noted that an allegation was made to the Department that the relationship was contrived, but the tribunal also notes that this allegation was not substantiated and there is no further evidence to support the allegation. The tribunal has made its decision based on the written and documentary evidence before it provided by the applicant, and the oral evidence in the hearing.
The tribunal has carefully considered all the evidence before it. The tribunal accepts the parties are validly married. However, at the time of decision the tribunal is not satisfied that the applicant is in a spousal relationship with the sponsor. The tribunal's assessment overall is that the applicant and sponsor had not given consistent and credible evidence about the relationship, and this is the most significant evidence before it. After considering the evidence in relation to the circumstances of the relationship, the tribunal is not satisfied that the applicant and sponsor are in a genuine and continuing relationship or that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of decision.
Given these findings the tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c).
Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
Application in this Court
On 24 August 2017, the Applicant filed his original application for review in this Court.
The Minister filed submissions on 8 October 2021.
On 13 October 2021 the Applicant filed submissions. Again, on 14 October 2021, he filed his Amended Application.
By that Application, the Applicant advances a single ground for review. That ground is as follows:
The Tribunal failed to make findings about reg 1.15A(3)(b)(iii).
The Minister filed further submissions on 19 October 2021, which respond to the Applicant’s amended Application.
The matter came before me for final hearing on 22 October 2021. Mr Aleksov, of counsel, appeared for the Applicant. Mr Barrington appeared for the Minister. The second respondent had taken no active role in the proceeding and did not appear.
RELEVANT STATUTORY PROVISIONS
Section 5F of the Migration Act provides that
(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 (Cth) (Migration Regulations) provide 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
(ii) the opinion of the persons' friends and acquaintances about the nature of the
(iii) any basis on which the persons plan and undertake joint social
(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.
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
[Emphasis added.]
SUBMISSIONS
The Applicant’s submissions
Again, the Applicant filed his written submissions on 13 October 2021.
Those submissions state that his case is based on the decision in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (He), in particular, at [73] – [77]. That decision was recently affirmed and summarised in Fang v Minister for Immigration [2021] FCA 674, [32] – [34] (Fang). Both cases hold that the Tribunal is required to make findings upon and consider each of the prescribed matters in regulation 1.15A of the Migration Regulations 1994 (Cth) (Regulations).
One such mandatory consideration is prescribed by reg 1.15A(3)(b)(iii) and relates to the sharing of the responsibility for housework. The Applicant submitted that the delegate specifically observed the existence of evidence concerning this in the decision record,[1] and that clear submissions in relation to that consideration were made to the Tribunal.[2] For example, at [39] of his submissions to the Tribunal, dated 2 May 2017 the Applicant submitted that:
The Applicant and Sponsor instruct that they share cooking duties depending on who is home first and groceries are purchased using their joint account as is evident by the regular transactions from Coles and Woolworths listed in their bank statement. Other household duties are also shared such as washing and tidying however the Applicant has taken on more responsibility in the home at times when the Sponsor has been unwell. The Sponsor had an operation on 20 April 2015 and during this time the Applicant did all duties around the house while she was recovering. The Applicant and Sponsor instruct that the Sponsor has been unwell again and is on an outpatient list at Frankston Hospital to get a kidney stone removed. Accordingly the Applicant has ensured that he is doing all household activities such as vacuuming and gardening so that the Sponsor doesn't exert herself.
[1] Delegate’s Decision Record, 3.
[2] See CB 388-389 and 351.
The Applicant’s submissions with respect to to reg 1.15A(3)(b)(iii) included that:
(a) the Tribunal does not mention the issue at all, from which it is to be inferred that it did not make any finding about the issue,
(b) the matter was not small or trivial that it could be disregarded as having no realistic prospect of affecting the outcome; and
(c) it is evident that the decision of the Tribunal was based on a balancing of competing factors and that the addition of favourable findings on reg 1.15A(3)(b)(iii) might realistically have tipped the balance in the applicant’s favour.
Orally, counsel for the Applicant took me to the decision of the full Court of the Federal Court of Australia in BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 (BXK15). In essence, the applicant relied on that case for his submission on materiality.
Counsel for the Applicant submitted that the Tribunal was required to make a finding on the sharing of house work, reg 1.15A(3)(b)(iii), and that logically, that finding should come before any finding on whether the Applicant and Sponsor lived together. In making this point, counsel brought me to [25] of the above decision, where North and Charlesworth JJ state:
Whilst it may have been open to the Tribunal to first consider the appellant’s evidence in isolation from the corroborative evidence, it cannot be said with certainty that the Tribunal would have adopted that method of decision-making had it been conscious of the content of the statements from the outset. Had it been conscious of the existence of the statements, it may instead have adopted what McHugh and Gummow JJ described as the “preferable method of going about the task presented by s 430 of the Act”: Applicant S20/2002 at [49]. Accordingly, it is no answer to the appellant’s arguments on this ground of appeal to say that his credibility was irreparably damaged by the time that the corroborative evidence came to be considered. It is possible that the appellant’s credibility may not have been irreparably damaged at all. There is, accordingly, jurisdictional error.
[Emphasis added.]
Mr Aleksov submitted to me that the Tribunal’s statement at [33] did not constitute a finding that the Applicant and Sponsor had not lived together. In that regard, he referred to the part of that paragraph which said:
… inconsistent evidence about how long one other person shared their home indicates that the evidence of the [Applicant] and sponsor may not be reliable about whether they resided at the same premises
Mr Aleksov described this as language used by the Tribunal which:
…expresses a doubt but does not resolve that doubt to conclusion. That might have been probative of his argument if the tribunal had otherwise completed all aspects of its duty, but it didn’t, and so that doubt cannot be transmogrified or construed as intellectual attention to the criterion not expressly mentioned.
In this regard, he submitted that:
as a matter of mandatory relevant consideration by dent of the regulation, the tribunal is required to consider housework. Logically, that has to go before a conclusion can be reached on whether or not they every lived together…
Mr Aleksov correctly submitted, in effect, that if I were to find that the Tribunal failed to consider the issue prescribed by reg 1.15A(3)(b)(iii), and that there was a realistic chance that but for such failure its decision would have been different, then the failure was material in the relevant sense: MZAPC .[3]
[3] (2021) 390 ALR 590
The Minister’s submissions
Again, the Minister filed his first written submissions on 8 October 2021. Much of those submissions are now irrelevant because they relate to grounds of review which the Applicant no longer presses. However, his submissions in relation to ground 1 remain relevant.
By those submissions, the Minister submitted at [26] that:
By ground one, the Applicant alleges that the Tribunal, in making its decision as to whether the Applicant is the spouse of the sponsor, failed to complete the exercise of its jurisdiction. This ground takes issue with the Tribunal’s consideration of s 5F(2)(d) of the Act and reg 1.15A(3)(d)(ii) of the Regulations. That is, the Applicant contends that the Tribunal failed to have regard to whether the Applicant and the sponsor live together, and the length of time that they have done so.
The Minister accepted in his first written submissions at [29] that in He, the full Court held that the Tribunal was “required to make findings upon each of the prescribed matters numbered with Roman numerals in reg 1.15A(3).’[4] However, the Minister submitted that the Tribunal did not need to refer to each of those matters in its reasons, again citing He.[5]
[4] See [79] of He.
[5] Again, see [79] of He.
In He at [79] the full Court held:
[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: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; 60 ALD 383; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; 294 ALR 84; 132 ALD 1; [2012] FCAFC 131 at [40]. 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 (sic), 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).
[emphasis added]
The Minister submitted at [30] of his submissions that:
Relevantly, the Full Court considered an argument that the Tribunal had failed to consider the persons’ living arrangements. The Full Court noted that, even though the Tribunal set out no express finding as to whether the parties were cohabiting at the time of the decision, 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”. The Full Court found that, in circumstances were the Tribunal had rejected the parties’ evidence that they had cohabited throughout their marriage, the Tribunal “must be understood to have found that it was not satisfied that they had lived together at any time”
The Minister then went on to apply this reasoning to the Application before me. He made the following points:
34.As in He, the Tribunal in this case observed that it was required to consider s 5F(2)(a) to (d), and that, “[i]n forming an opinion about these matters, regard must be had to all of the circumstances of the relationship”, which “includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r 1.15A(3).”
35.The Tribunal considered the evidence concerning the length of time the parties had lived together. It noted that the parties claimed they moved in together in Noble Park some six weeks and three days after they met (CB 494 [14]) and that they then claimed they moved to an address in Keysborough in late 2014, lived together there for two years, and then moved to Frankston North in late 2016.
36.The Tribunal then considered inconsistent evidence between the Applicant and the sponsor concerning the amount of time the Applicant’s cousin lived with them. The Applicant stated that “his cousin lived with them in the Keysborough home for a few months”, whereas the “sponsor stated he resided there for nearly two years” (CB 498 [33]). In combination with its earlier credibility concerns with the Applicant, the Tribunal found that the “inconsistent evidence about how long one other person shared their home indicates that the evidence of the [Applicant] and sponsor may not be reliable about whether they resided at the same premises” (CB 498 [33]). It put “significant weight” on this inconsistent evidence.
[Emphasis in First Respondent’s submissions.]
Ultimately, the Tribunal found that the “Applicant and Sponsor had not given consistent and credible evidence about the relationship”. The Tribunal considered that this was “the most significant evidence before [the Tribunal]”. The Minister contended that it should be inferred that the Tribunal did make a finding about the length of time that the Applicant and Sponsor lived together. Given the Tribunal found that their evidence on this point was not credible and was inconsistent, the Minister submitted that the Tribunal was not satisfied that they had lived together at any time.
Further Submissions of the First Respondent
The Minister’s submissions, filed on 19 October 2021, relate to the single ground promoted in the Amended Application.
The Minister referred to his previous submission, that due to the concerns which the Tribunal had expressed about the parties’ living arrangements, it must be understood to have found that it was not satisfied that the Sponsor and Applicant had lived together at any time. The Minister submitted that an inference should be drawn that the Tribunal made a finding that there was no shared contribution to housework. He submitted that since the Tribunal had found that the parties had not lived together, any consideration by it of reg 1.15A (3)(b)(iii) did not need to be referred to in its reasons. However, that is not to say that the Tribunal did not consider the matter.
Mr Barrington expanded on this submission at the hearing. I set out some of those submissions below.
The First Respondent’s submissions at the Hearing
At the hearing, Mr Barrington took me to the full Federal Court’s decision in He. In that decision, the Court observed at [76] that:
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.
Mr Barrington took me to [79]-[82] of that decision, which I reproduce below:
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: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. 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(iii), 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).
In the present case, the question is whether the appellants have demonstrated that the Tribunal failed to make findings upon the matters they rely upon, namely the extent of pooling of financial resources (reg 1.15A(3)(a)(iii)), living arrangements (reg 1.15A(3)(b)(ii)), and evidence of others attesting to the relationship (reg 1.15A(3)(c)(ii)). If the Tribunal failed to do so, then it failed to consider circumstances required to be considered in the evaluation of whether there was a “married relationship”.
The Tribunal observed in its reasons that it was required to “have regard to” each of the matters set out in reg 1.15A(3). The Tribunal expressly identified the four principal matters set out in reg 1.15A(3) and stated that these were matters to which, along with all the circumstances of the relationship, regard must be had. The Tribunal noted that evidence produced by Ms He and Mr Xu, if accepted at face value, would support a finding that they were in a married relationship. That evidence concerned their intertwining of financial affairs, their joint bank account, their claim that they cohabitated and their claim that they provide each other with companionship and emotional support and that their relationship is a long-term one. The Tribunal also noted that there was material from family members and others attesting to their relationship. The Tribunal then went on to examine evidence and circumstances which appeared to contradict the evidence relied on by the appellants, before concluding that it was not satisfied that Ms He and Mr Xu were in a married relationship.
The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
Mr Barrington restated that the Tribunal did not need to make express its consideration of each specific criterion in reg 1.15A(3). He stated that I could:
… infer that the tribunal had gone down the list and said “Well, because it’s a sham, I can very easily answer these questions: no, no, no, no,’…
Mr Barrington then submitted that BXK15 was distinguishable from the present case.
In particular, he submitted that BXK15 concerned witness statements which were corroborative of the applicant’s evidence but ignored by the Tribunal.
Further, Mr Barrington submitted that I should not find that the Tribunal overlooked the reg 1.15A(3)(b)(iii) issues or ignored the evidence with respect to it. Such evidence had been before the delegate was accordingly before the Tribunal. Mr Barrington submitted, in effect, that the consequence of the Tribunal’s finding to the effect that it disbelieved that the parties had in fact relevantly cohabited entailed the proposition that it had considered and rejected the fact that the housework criterion was satisfied.
Referring to paragraph [82] of He, Mr Barrington submitted orally that:
What the Full Court there is quoting and says is the impressionistic and evaluative nature of the tribunal’s task must be taken into account when drawing implications from its reasons. What that does, in my submission, is puts paid to any submission that there is a particular order in which the tribunal must set out its reasons for decision. It’s not required to consider regulation 1.15A(3) in order (a)(i), (ii), (iii); (b)(i), (ii); etcetera. And it’s not even required to think about them in order. It’s not even required to do the mental process of it in order
Mr Barrington emphasised that the Tribunal’s statement at [33] that “that the evidence of the [Applicant] and sponsor may not be reliable about whether they resided at the same premises”:
(a)Referred to the all three places which the Applicant and Sponsor claimed to live together.
(b)Referred to the whole period of time between the June 2012, when the Applicant and sponsor claimed to commence living together and July 2017, when the Tribunal made its decision.
Mr Barrington highlighted the particular passage at [46] where the Tribunal found “the applicant and sponsor had not given consistent and credible evidence about the relationship, and this is the most significant evidence before it”. The Tribunal then goes on to find that it “…is not satisfied that the applicant and sponsor are in a genuine and continuing relationship…”.
Mr Barrington accepted that the Tribunal had found other inconsistencies in the evidence of the Applicant. He submitted that despite there being other inconsistencies, the passage in the Tribunal’s reasons at [33] that: “inconsistent evidence about how long one other person shared their home indicates that the evidence of the [Applicant] and sponsor may not be reliable about whether they resided at the same premises”, should be read as a finding as to cohabitation which was based on all of the inconsistent evidence.
Mr Barrington contended that this is evident when the passage at [33] of the Tribunal’s reasons, which I have extracted above, is read alongside its conclusions at [46], where it said that:
The tribunal's assessment overall is that the applicant and sponsor had not given consistent and credible evidence about the relationship, and this is the most significant evidence before it. After considering the evidence in relation to the circumstances of the relationship, the tribunal is not satisfied that the applicant and sponsor are in a genuine and continuing relationship or that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of decision.
Again, Mr Barrington submitted that the essential reason for the Tribunal’s decision to dismiss the application was its rejection of the credit of the Applicant and the Sponsor. The predominant focus of its assessment of the credit of the Applicant and the Sponsor related to their evidence as to their living arrangements and, in particular, whether they cohabited. These matters support the conclusion that such evidence was rejected.
Mr Barrington took me again to He, at [85], where the full Court states that:
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).
Mr Barrington submitted that even though the Tribunal did not expressly set out its reasons, it should be understood as having made a finding that the Applicant and Sponsor did not live together at any time.
Mr Barrington also took me to Multani v Minister for Immigration [2020] FCCA 155. He submitted that at [57], Judge Barnes’ reasons follow the logic of argument which I have described above. There, Judge Barnes found that:
The Applicant contended that the Tribunal failed to consider, or misread, his evidence about shared household activities and responsibilities. Regulation 1.15A(3)(b)(iii) refers to “any sharing of the responsibility for housework”. It is the case that there was no express finding in that respect by the Tribunal. However a finding in relation to this matter can be inferred (see He at [85]). The Tribunal recorded the evidence of Mr Multaniabout sharing housework and cooking and often sharing meals with Ms Ralph when he was not working. Relevantly, its finding rejecting his claim of cohabitation at the time of decision (relevant to the cl.801.221(2) criterion under consideration) was a finding that was couched at a higher level of generality than any specific finding that could be made in respect of the sharing of housework and cooking (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325; [2001] HCA 30 at [91] per McHugh, Gummow and Hayne JJ and He at [85] discussed at [81]-[82] below). I accept that, as the First Respondent submitted, the Tribunal should be understood to be finding in its conclusion in relation to the nature of the household that it also did not accept the Applicant’s evidence as to the extent of any sharing of the responsibility of housework because it did not accept that he lived with Ms Ralph. No jurisdictional error is established on this basis.
[Emphasis added.]
The Applicant’s Oral Submissions
Mr Aleksov made brief oral submissions in reply.
First, Mr Aleksov took me to the criteria in 5F (extracted above at [20]).
He submitted that in paragraph [46] of the Tribunal’s reasons, it makes findings which relate to the various subsections of section 5F. There, the Tribunal states that:
(a)“at the time of decision the tribunal is not satisfied that the applicant is in a spousal relationship with the sponsor”: (5F)(1)-(2);
(b)“The tribunal accepts the parties are validly married”:(5F)(2)(a);
(c)“After considering the evidence in relation to the circumstances of the relationship, the tribunal is not satisfied that the applicant and sponsor are in a genuine and continuing relationship”:(5F(2)(c); or that
(d)“they have a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of decision”:(5F(2)(b).
Mr Aleksov highlighted that the while the Tribunal made references in [46] to 5F(1), 5F(2)(a), (2)(b) and (2)(c), it did not make any express finding as to 5F(2)(d), despite making findings on the other criteria.
Secondly, Mr Aleksov brought my attention to the words of the Tribunal in [36], where the Tribunal states that:
The tribunal places significant weight on the inconsistent evidence about whether the applicant's cousin resided with the applicant and sponsor at the Keysborough house for "a couple of months" as per the applicant or whether he lived there for nearly two years, or for most of the time they were there but left three or four months before the end of 2016.
He then invited my attention to [39] where it states that:
The tribunal has considered the evidence of the applicant and the sponsor that the applicant's parents visited Australia and stayed with them at the Keysborough house in mid 2016.
[emphasis added]
Mr Aleksov submitted that, in both of these instances, there is a premise that the applicant and sponsor are actually residing together. He submitted that, in light of these passages, the Tribunal could not have made a finding that the applicant and sponsor never lived together.
CONSIDERATION
The Applicant’s case was distilled to whether the Tribunal made findings about reg. 1.15(3)(b)(iii): ‘any sharing of the responsibility for housework …’.
In support of his ground, the Applicant relies on He as confirmed recently by Fang. Those cases hold that the Tribunal is required to make findings upon and consider each of the prescribed matters in regulation 1.15A of the Migration Regulations 1994 (Cth). Those cases hold that the Tribunal must give “proper, genuine and realistic consideration to the prescribed matters” and that the “legislative intention must be that these questions will be answered, not merely thought about.’[6]
[6] See [76] of He.
I have considered the Applicant’s submission that the Tribunal’s observations at [33] and [46] (which I have extracted above), did not constitute a finding under 1.15(3)(d)(ii) which was adverse to him. The Applicant argued that this was so for reasons including:
(a)Even if the relevant passages did refer to the Applicant and Sponsor’s living arrangement, I should not accept that it should be construed as a finding that the Applicant and sponsor had not lived together at any time.
(b)The preferable construction of the passages is an expression of doubt as to the Applicant and Sponsor’s evidence as to their living arrangements, which it ultimately does not resolve.
(c)In [36] and in [39] while the Tribunal emphasises the inconsistency of the Applicant’s evidence, there is an underlying premise that the Applicant and Sponsor are living together.
Of course, I accept as a matter of principle that the Tribunal was required to have regard to the prescribed matters in reg 1.15A(3), including, 1.15(3)(b)(iii).
However, I also accept that the Tribunal was not necessarily required to express its consideration of each of those matters in its reasons. As the Full Court observed in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34]:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
Whether the Minister failed to consider the matters which are the subject of the relevant regulation is a question of fact on which the Applicant bears the onus of proof on the balance of probabilities.[7] Therefore, it is necessary for me to find whether the Applicant has discharged that onus.
[7] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67].
Given that the Tribunal does not expressly refer to any consideration by it of the relevant matters, I am required to infer whether, in fact, it considered them. When determining whether to draw that inference, I have had regard to the context of the application, the claims and material before the Tribunal and its reasons as a whole.
Here, the Tribunal found at [12], [14], [33] and [46] of its reasons that the Applicant had given inconsistent evidence about the length of time that he and the Sponsor had lived together.
The Tribunal’s finding at [46] to the effect that the Applicant and Sponsor “had not given consistent evidence and credible evidence about the relationship” and that this was the “most significant evidence before it” – set against the backdrop of its doubt about whether the Applicant and the Sponsor had cohabited, as expressed in [33] – should be viewed as adverse credit findings which were dispositive of the application before it.
I do not accept that, in its reasons, the Tribunal was required expressly to state that it had considered the matters which are the subject of 1.15A(3)(b)(iii) in circumstances in which the Tribunal had already expressed what must, at least, be described as considerable doubt as to the truth of the evidence given by the Applicant and the Sponsors concerning their living arrangements, including whether they had cohabited. I accept the submission made by Mr Barrington to the effect that, in the context of the Tribunal’s reasons, such expressions of doubt should be understood as a rejection of the credit of both the Applicant and Sponsor relating to their relationship and living arrangements – including whether they cohabited. This conclusion is supported by the fact that the Tribunal appears to have treated these matters as dispositive of the application before it.
In these circumstances, I apply the reasoning of Judge Barnes in Multani v Minister for Immigration at [57], which I have extracted above at [55]. That is, such findings were “couched at a higher level of generality than any specific finding that could be made in respect of the sharing of housework and cooking”. I consider that such findings are at a broader level of abstraction or generality than the matters which are the subject of the relevant regulation. Accordingly, the broader findings are likely to entail and/or reflect a consideration of the matters which are the subject of it.
I do not accept that that the statements of the Tribunal at [39] and [36] constitute a determination by it that the Applicant and Sponsor were living together for a time. Even if they did, I do not accept that this would compel the conclusion that, because the Tribunal did not expressly refer to its consideration of the matters which are the subject of 1.15A(3)(b)(iii) in its reasons, it did not consider such matters. Amongst other things:
(a)The reasons of the Tribunal should not be isolated or reviewed “minutely and finely with an eye keenly attuned to the perception of error”.[8]
(b)Again, the doubts raised by the Tribunal at [12], [14] and [33], together with its findings at [46], should be understood as adverse credit findings against the Applicant and the Sponsor as to their living arrangements.
(c)Any finding that the Applicant and the Sponsor may have been living together for some time (at [36] and [39]) wold not be inconsistent with a finding that their evidence as to their living arrangements was largely disbelieved.
(d)Again, such findings are at a broader level of abstraction or generality than the matters which are the subject of the relevant regulation and are likely to entail and/or reflect a consideration of the matters which are the subject of it.
[8] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30].
I dismiss the Amended Application with costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 13 May 2022
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