Troung v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1561
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Troung v Minister for Immigration and Citizenship [2025] FedCFamC2G 1561
File number(s): BRG 310 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 26 September 2025 Catchwords: MIGRATION – Partner (Residence) (Class BC) (Subclass 801) visa – review of a decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered all of the circumstances of the parties’ relationship, including all the matters in r 1.15A(3) of the Migration Regulations 1994 (Cth) – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5CB; 5F; 5F(2)(c); 5CB(2)(b); 476(1)
Migration Regulations 1994 (Cth) reg 1.09A; 1.15A;
cl 801.211; 820.211(2); 820.211(6)
Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs v Gupta [2022] FCAFC 51
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submission/s: 19 August 2025 Date of hearing: 19 August 2025 Place: Brisbane Applicant: The applicant appeared on her own behalf Solicitor for the First Respondent: Ms Helsdon. Sparke Helmore, appeared on behalf of the first respondent Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS
BRG 310 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI TRUC TRUONG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
26 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration Citizenship and Multicultural Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Vietnam. On 25 August 2014, the applicant made an application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BC) (Subclass 801) visa (“the visa”) on the basis of her relationship with an Australian citizen (“the sponsor”) (Court Book (“CB”) 2-31).
On 11 January 2016, the applicant was granted the Partner (Temporary) visa (CB 142-147). On 7 September 2018, the delegate refused to grant the applicant the Partner (Residence) (Class BS) (Subclass 801) visa as the delegate was not satisfied that the applicant had met the criteria of cl 820.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) as the delegate was not satisfied that the applicant and the sponsor were in a genuine and continuing relationship with the sponsor as required under s 5F(2)(c) and 5CB(2)(b) of the Migration Act 1958 (Cth) (“the Act”), having regard to the factors in reg 1.15A and 1.09A of the Regulations (CB 224-259) . Accordingly, the delegate refused to grant the visa (“delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 17 September 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 260-270). The applicant appointed a registered migration agent to act as her representative (CB 266 and 279-280).
On 16 June 2022, the Tribunal invited the applicant to attend a hearing on 13 July 2022 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 290-293). The hearing was later adjourned to 27 July 2022 (CB 306).
On 1 July 2022, the applicant’s representative emailed documentation to the Tribunal in support of the applicant’s application for review being: a further statutory declaration of the applicant dated 1 July 2022; four statements/statutory declarations by friends as to the genuineness of the sponsor and applicant’s relationship; bank statements from the sponsor and the applicant’s joint bank account for the period of 4 March 2015 to 5 April 2017; a Flight Centre receipt for travel from Adelaide to Brisbane on 23 March 2017 as evidence of the applicant purchasing a flight for the sponsor; flight records from Virgin showing the applicant’s travel history on that airline during the period of 31 December 2013 to 22 April 2015; photographs dated between July 2014 and September 2014, taken during the sponsor and applicant’s relationship; a statutory declaration from the applicant’s psychologist; a Family Violence Assessment from the Immigrant Women’s Support Service; and further evidence of the violence which the applicant claimed to have been subject to during the course of her relationship with the sponsor (CB 300-301 and 373-519).
On 4 July 2022, the applicant’s representative provided written submissions to the Tribunal in support of the applicant’s application for review (CB 300 and 365-372).
The hearing on 27 July 2022, proceeded as a directions hearing at which the matter was adjourned to a date to be arranged (CB 326-328).
On 3 August 2022, the applicant’s representative sent an email to the Tribunal to explain the applicant’s response regarding some matters raised by the Tribunal at the directions hearing, specifically, the production of the applicant’s telephone records, the availability of witnesses and that the applicant opposed the sponsor being called to give evidence (CB 333-335).
On 9 August 2022, the applicant was invited to attend the resumed hearing on 27 September 2022 (CB 337-339).
On 16 August 2022, the applicant’s representative wrote to the Tribunal and requested that the Tribunal obtain oral evidence from three named witnesses (CB 340).
On 19 September 2022, the hearing scheduled for 27 September 2022 was postponed to a date to be advised due to the shortage of in person female, Vietnamese interpreters (CB 346-347).
On 5 October 2022, the applicant was invited to attend the resumed hearing on 26 October 2022 (CB 350-354).
On 12 October 2022, the applicant’s representative provided further evidence to the Tribunal including additional medical records for the applicant and an email from Vodafone confirming that her telephone records were unavailable for the early the period of her relationship with the sponsor (CB 355).
On 26 October 2022, the applicant attended the hearing. The hearing lasted for two hours and was adjourned to a date to be arranged (CB 520-522).
On 3 November 2022, the applicant was invited to attend the resumed hearing on 14 November 2022 (CB 526-259).
On 7 November 2022, the applicant’s representative emailed the Tribunal, providing a brief statement from the applicant addressing some issues raised by the Member at the previous hearing regarding inconsistencies in evidence provided to the Department and the sponsor’s travel history (CB 536-541).
On 14 November 2022, the applicant attended the resumed hearing. The applicant and three witnesses gave evidence (CB 543-545). The applicant was assisted by her migration agent and an interpreter in the Vietnamese and English languages.
On 12 December 2022, the applicant’s representative emailed to the Tribunal an additional declaration from a community worker and a declaration from the applicant’s former employer (CB 546-552).
On 7 May 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 563-575) (“Decision”).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant satisfied the criteria in cl 801.221 (6) of Schedule 2 to the Regulations, which relevantly required: the applicant was the holder of a Subclass 820 visa; the applicant would have continued to be sponsored by the sponsoring partner except that the relationship between the applicant and the sponsoring partner had ceased; the applicant had suffered 'family violence' committed by the sponsoring partner [13].
The Tribunal stated that as the family violence criteria required that the relationship between the applicant and the sponsoring partner had ceased, the Tribunal must first determine that a 'spouse' relationship existed before it could be determined that the relationship had ‘ceased’ and that if the Tribunal determined that the 'spouse' relationship never existed, the family violence exception to the relationship continuing would not arise for consideration [14].
The Tribunal referred to the definition of ‘spouse’ in s 5F of the Act and said that in forming an opinion about the matters in s 5F(2)(a)-(d), regard must be had to all of the circumstances of the relationship including evidence of the financial and social aspects of the relationship, the nature of the applicant's and sponsor's household and their commitment to each other as set out in reg 1.15A(3) [15] and [16].
The Tribunal set out the background as follows:
(a)The applicant is a 46-year-old woman from Vietnam. She first came to Australia in July 2010 on a Higher Education Sector visa, which was due to expire in August 2014. She applied for the visa on the basis of her relationship with the sponsor, a 46-year-old man who was born in Vietnam and became an Australian citizen in 2015 [17].
(b)The applicant claims to have been introduced to the sponsor by a mutual friend on 30 December 2013. The applicant was living in Brisbane and visited her friend in Adelaide, where the sponsor also lived. The applicant claims to have spent a few days with the sponsor in Adelaide and that when she returned to Brisbane, they spoke to each other over the telephone approximately five times per week [18].
(c)The applicant claims to have visited the sponsor again for a few days in April, July, and August 2014 [19]. The applicant claims that the sponsor proposed during her visit in April 2014 and that they were married in Brisbane in August 2014 [19].
(d)The applicant applied for a Partner visa, three days after her marriage to the sponsor, The applicant was granted a subclass 820 visa on 11 January 2016. The delegate who made the decision to grant the Partner (Temporary) visa was satisfied that the requisite relationship existed between the applicant and the sponsor [20].
(e)The applicant claims that she and the sponsor separated in March 2017 and that she suffered family violence during the relationship [21].
The Tribunal referred to the applicant's representative’s submission that the Tribunal could be satisfied that the requisite relationship existed between the applicant and the sponsor because the applicant had been granted a subclass 820 visa and that there was no special or exceptional reason to justify the Tribunal departing from the previous assessment made by the Department of Immigration that the review applicant and sponsor were in a spousal relationship [22].The Tribunal did not accept this submission because it said it was inconsistent with the decision of the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs v Gupta [2022] FCAFC 51 [23].
The Tribunal referred to inconsistencies with regard to the courtship period of the relationship in statements submitted with the visa application. The Tribunal recorded that the applicant’s oral evidence that her statutory declaration dated 23 March 2017 (submitted with the visa application) was untrue and that she knew it to be untrue at the time it was submitted [26] - [28].
The Tribunal accepted that the parties were married to each other on 24 August 2014 under a marriage that was valid for the purposes of the Act, as required by s 5F(2)(a) [37]-[38].
The Tribunal stated that it had carefully considered all of the evidence before it, including the documents submitted to the department and the Tribunal (including those not expressly referred to in the decision) and the oral evidence provided at the hearings and that, for the following reasons it was not satisfied on the evidence that the applicant and the sponsor were ever in a 'spouse’ relationship [30]:
(a)The information and evidence relied upon by the delegate in granting the subclass 820 visa was not sufficient to support a finding that the requisite relationship existed [31];
(b)While the applicant had provided material to the Tribunal that supplemented the material available to the delegate, this evidence was also inadequate; there was very little credible objective evidence available to substantiate the relationship. The evidence that was available, for example, the bank statements, did not support a finding in the applicant's favour [32];
(c)The evidence given to the Tribunal in writing and at the hearing by the applicant and the witnesses was not reliable. This was largely due to the passage of time since the relevant events occurred. On the applicant's evidence, the relationship between the applicant and the sponsor occurred between late 2014 and early 2017, meaning five to seven years had passed between the relevant events and the hearing. On the applicant's own evidence, her witnesses had forgotten key events and 'had the dates and times upside down' [33];
(d)In addition, because of the passage of time, evidence that might have corroborated the applicant's version of events was no longer available; for example, the applicant gave evidence that prior to her marriage to the sponsor, she had a telephone account with Vodafone. However, she could not obtain records to corroborate her claims that she regularly spoke to the sponsor on the telephone during their courtship because Vodafone only keeps records for seven years and Viber only keeps records for 24 months. The applicant's representative also notified the Tribunal that the applicant's former landlord was unwell and did not have the capacity to give evidence [34].
As to the financial aspects of the relationship the Tribunal referred to the following evidence:
(a)The applicant claimed to have had one joint asset with the sponsor, being their joint account into which her income was deposited and she was responsible for paying the household expenses such as rent (which included water & electricity), food and phone bills. She paid the bills from the joint bank account and the sponsor did not contribute to these payments and had minimal employment during the marriage and the small amount of money he did make, he spent directly on cigarettes and gambling [39];
(b)The applicant’s oral evidence at the hearing to the effect that she had her own personal account but after the joint account was opened, she ‘started using the joint account only'; that she was paid half in cash and half by electronic funds transfer and that the sponsor contributed approximately $2,000 to the wedding expenses and did not contribute to living expenses [40].
The Tribunal stated that the applicant's claim was not supported by her statement dated 26 August 2014, which stated that “Temporarily, we cover our rent, bills and living costs by my husband's savings and savings from my current part-time work" and was also not supported by the joint bank account statements which indicated that ([41]and [42]):
(a)The joint account was opened in December 2014, four months after the applicant and the sponsor wed, and the first deposit was not made until March 2015, some seven months after the applicant and the sponsor wed;
(b)The first electronic funds transfer into the account that is identifiable as wages occurred in August 2015. There are then no electronic funds transfers that are identifiable as wages between December 2015 and March 2017;
(c)There is limited activity on the account. For example, in the period December 2015 to March 2016, there is only one deposit and two withdrawals;
(d)The majority of transactions are cash deposits and withdrawals, meaning that it is not possible to verify the source of the deposit or how the money withdrawn was spent;
(e)There are no transactions identifiable as being gambling-related. There are no identifiable withdrawals made in Adelaide, where the applicant claims the sponsor lived for 40% of the time during their relationship.
The Tribunal stated that in these circumstances, it did not accept the applicant's claims as true. The Tribunal also found that while the applicant and the sponsor had a joint account, they did not pool their financial resources or share day-to-day household expenses and that the applicant did not claim to have any joint liabilities or owe any legal obligations to the other party. The Tribunal concluded that the financial aspects of the relationship were not indicative of a married relationship, as defined in the Act [43].
As to the nature of the household, the Tribunal referred to the applicant’s claim that the sponsor moved to Brisbane in September 2014 and that they lived together with her landlord but that the applicant now claims that the sponsor spent approximately 40% of the time in Adelaide, where he worked, as he had been unable to find work in Brisbane [44].
The Tribunal said there was very little evidence to support the applicant's claim of cohabitation as a couple in Brisbane and referred to [45]:
(a)A letter from her landlord dated 2 November 2015, which stated:
“On 24 August 2014 Ms Truc Truong married Mr Hoang Tran who then moved into my house and live together with Truc ever since. Mr Tran was originally from Adelaide ... They are such a lovely and pleasant couple that I really love having them around”.
(b)A statutory declaration from her landlord dated 24 March 2017 which stated:
"Truc and Hoang seems to be suited for each other over the years they have been married. They are happy together. They both like to cook They both like to go to the Beach. They both lived with me after they married to day".
(c)A small selection of correspondence addressed to the applicant or the sponsor at the shared address, including tax returns, phone bills and bank statements.
The Tribunal said that the landlord's evidence was brief and provided little insight into the applicant and the sponsor's living arrangements. Similarly, while the correspondence indicated that the applicant and the sponsor nominated the shared address as their postal address to various institutions, it did not demonstrate that the couple lived at the shared address together in a manner consistent with a married relationship [46].
The Tribunal referred to the applicant’s claim that she prepared the meals and did the laundry and other household chores and that the sponsor sometimes helped with these jobs, but that he said it was a woman's job as it was tradition in their culture for the woman to do these things. The Tribunal said this was inconsistent with the previous statutory declarations signed by the applicant and sponsor in March 2017, which stated that the applicant cooked everyday and that the sponsor did the washing and cleaning [48].
The Tribunal referred to the representative’s submissions that the Tribunal should regard the relationship 'no differently to the relationship which many fly-in-fly-out miners have with their spouses’. The Tribunal said that this question does not arise as it was not satisfied that the applicant and the sponsor did, in fact, reside in Brisbane for 60% of the time as a couple [49].
The Tribunal said that given the paucity of credible evidence, it found that the applicant and the sponsor did not live together and share housework in a manner consistent with a married relationship and that the nature of the household was not indicative of a married relationship, as defined in the Act [50].
As to the social aspects of the relationship, the Tribunal said there was some evidence as to the social aspects of the relationship, including photographs of the applicant and the sponsor socialising with friends, flight records of the applicant's travel to Adelaide in 2013 and 2014, and statutory declarations, statements, and oral evidence from friends and family [51].
The Tribunal noted that the flight records only related to the courtship period of the relationship and said it gave them little weight in its assessment of the relationship because the applicant also gave evidence to the effect that she had many friends in Adelaide and often visited there. The Tribunal also noted that there were no records that corroborated the applicant's claim that she visited the sponsor in Adelaide when he worked there after their marriage [52].
The Tribunal considered the photographs submitted to the Department and the Tribunal and noted that the majority of the photographs related to the courtship period of the relationship or the applicant and the sponsor's wedding, and many of the photographs were taken on the same occasion. The Tribunal said it appeared that there were only photographs from four occasions that post date the wedding and that it gave these photographs some weight [53].
The Tribunal referred to the evidence of one witness who stated in his statutory declaration that 'on the weekends they often come to my house to have dinner with my family ... [and] every time he returned to Queensland Hoang would always visit us'. The Tribunal noted, that witness also gave evidence at the hearing to the effect that he had only had dinner with the sponsor twice; once at his house and once at the applicant's house and that he also gave evidence to the effect that he did not see the applicant and the sponsor very often [54].
The Tribunal noted that another witness, who introduced the applicant to the sponsor and with whom the sponsor initially lived when he returned to Adelaide, said in her statement to the effect that the applicant and the sponsor visited her in 2015 and that once the sponsor returned to Adelaide, they visited each other. The Tribunal said that, when the witness was prompted to tell the Tribunal about the relationship between the applicant and the sponsor, she stated to the effect that she could not comment on their relationship because she 'wasn't sure how it went' [55].
The Tribunal noted that the final witness gave evidence to the effect that she regularly socialised with the applicant and the sponsor over approximately a two month period [56].
The Tribunal stated that it gave the witness evidence, as well as the statements and statutory declarations, some weight and acknowledged that there was some social recognition of the relationship between the applicant and the sponsor. The Tribunal said that it did not consider the evidence as a whole to be sufficiently compelling to support a finding in the applicant’s favour [57].
The Tribunal concluded that on the balance of considering the evidence as a whole it was not satisfied that the parties represented themselves to other people as being married to each other, that their friends and acquaintances believed the relationship to be genuine and that they planned and undertook joint social activities. The Tribunal found that the social aspects of the relationship were not indicative of a married relationship, as defined in the Act [58].
As to the nature of the parties’ commitment to each other, the Tribunal referred to the applicant’s claim that she was in a married relationship with the sponsor for approximately 2.5 years, during which she claimed that they lived together for approximately 60% of the time. The Tribunal said that for the reasons set out earlier, it was not satisfied that the applicant and the sponsor lived together as a couple [59].
As to the applicant’s claim that during their courtship and for a short period after they married, the applicant and the sponsor had a good relationship. The Tribunal said, there was little objective evidence to support this claim, for example, telephone or Viber records to corroborate her claims that they communicated regularly; no flight records to verify that the applicant visited the sponsor in Adelaide in 2015 or 2016; no credible contemporaneous statements from the applicant or the sponsor about their relationship and their commitment to each other [60].
The Tribunal concluded that it was not satisfied that the applicant and the sponsor shared companionship and emotional support that commensurated with a married relationship and that they saw the relationship as long term and that the nature of the commitment was not indicative of a married relationship, as defined in the Act [61].
The Tribunal concluded that it was not satisfied that the applicant and the sponsor ever had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing and that they lived together or did not live separately and apart on a permanent basis for the purposes of s 5F(2)(b) to (d) of the Act [62].
As a result, the Tribunal said that the question of whether the applicant suffered family violence during the relationship did not arise [63].
The Tribunal accordingly affirmed the delegate’s decision not to grant the applicant a Partner (Residence) (Class BS) visa [65].
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 5 June 2024. The applicant also filed an affidavit affirmed on 5 June 2024. The affidavit annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court ensured that the applicant had these documents in Court with her.
The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Vietnamese and English languages.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
The applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
1.The Tribunal was irrational and unreasonable in finding that the applicant and the sponsor were not in a spouse relationship.
Particulars
1.1.The applicant and the sponsor had a "distant" spousal relationship.
1.2.Due to his work, The sponsor spent approximately 40% of the time in Adelaide from late 2014 until early 2017.
1.3.The sponsor spent 60% of the time with the Applicant from late 2014 until early 2017 in Brisbane.
1.4.The sponsor returned to Brisbane every three to four months to visit the Applicant.
1.5.The Applicant also travelled to Adelaide to visit the sponsor several times a year.
1.6.The Applicant and the sponsor had a joint bank account. The Applicant deposited her cash income earned as a nail technician into the joint bank account. The sponsor kept his money in a separate bank account so he could spend money on gambling and cigarettes. The Applicant deposited limited money into the joint bank account because the Applicant might withdraw the money for his gambling. The Applicant paid household expenses from the Joint bank account.
1.7.The Applicant contacted the sponsor by telephone while the sponsor was in Adelaide.
1.8.With respect to the inconsistency of evidence of the Applicant in paragraph 48 of the Decision, the inconsistency was due to the passage of time since the statutory declaration was made in March 2017 and the date of the hearing. The sponsor was no longer helping the Applicant with the household work after one year of marriage.
1.9.The Applicant provided evidence of the relationship with the sponsor including but not limited to photos, a tax return, a letter from the landlord, bank statements, flight tickets, and utility bills.
2.The Tribunal erred in finding that the Applicant and the sponsor did not live together.
Particulars
2.1. The Applicant relies on the particulars of paragraph 1 above.
Despite the order requiring her to do so, the applicant did not file any submissions in support of her application but was given the opportunity to make oral submissions in support of her application for judicial review and in reply to the first respondent’s oral submissions.
Ground One: Tribunal’s decision was irrational and unreasonable in finding that the applicant and the sponsor were not in a spousal relationship
The application for judicial review sets out a number of particulars as to why the applicant contends that the Tribunal was irrational and unreasonable in finding that the applicant and the sponsor were not in a spousal relationship, referring to the evidence that she had provided.
In oral submissions, the applicant contended that the Tribunal erred because it did not have proper regard to the evidence that she had provided regarding the flight records evidencing her travel from Brisbane to Adelaide to visit the sponsor; telephone records; numerous photographs of the applicant and the sponsor taken during the courtship, at the wedding and photographs taken after the wedding; and, witness evidence.
Put in that way, the applicant’s submission invites the Court to engage in impermissible merits review by, in effect, asking the Court to have its own regard to that evidence and come to a conclusion as to whether the evidence supports a finding of a spousal relationship. The Court can of course, consider whether the Tribunal’s decision – on the evidence – was irrational, illogical or unreasonable.
As submitted by the first respondent, the Court must ask itself whether the Tribunal’s conclusion that the applicant did not satisfy s 5F was reasonable in the sense of having an evident and intelligible justification (first respondent’s written submissions (“FRS”) at [25] citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ) or being logical, rational and not arbitrary or capricious (FRS [25] citing NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [26] (Black CJ)). The first respondent emphasises that the test for unreasonableness is necessarily stringent and that the Court should bear in mind that a decision maker is allowed an area of decisional freedom within which reasonable minds might properly differ (FRS [25] referring to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ) and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ), [65]-[66] (Hayne, Kiefel and Bell JJ)).
The Court agrees with those principles and turns to consider the applicant’s submissions having regard to them
The applicant’s travel to Adelaide to visit the sponsor after the wedding
In oral submissions, the applicant stated that she did not agree with the Tribunal’s finding that she and the sponsor did not live together during their marriage, stating that ‘the law in Australia allows husbands and wives to live separately, for work reasons.’ It was the applicant’s evidence to the Tribunal that the sponsor was unable to find work in Brisbane and therefore had to travel to Adelaide to work on his sister’s farm. The applicant submitted that she and the sponsor travelled between Brisbane and Adelaide to visit each other. The applicant said this was supported by evidence of flight records and photographs.
The applicant drew the Court’s attention to a copy of the flight records she said evidenced her travel to Adelaide to visit the sponsor after the wedding (CB 400-405).
The Tribunal considered the flight records in its decision (at [51]-[52]) and noted that the flight records only related to the courtship period of the relationship and that there were no records to corroborate the applicant’s claim that she visited the sponsor in Adelaide when he worked there after their marriage.
The Court observes that the flight records before the Tribunal (CB 405) evidence travel between Adelaide and Brisbane on dates between 31 December 2013 and 22 April 2014. This was prior to the marriage during the period the Tribunal describes as the courtship period. There was one other piece of evidence before the Tribunal regarding travel between Adelaide and Brisbane and that is a Flight Centre receipt for travel by the sponsor from Adelaide to Brisbane on 23 March 2017 (CB 400-402). The parties separated in March 2017.
Telephone Records
As noted above, the applicant submitted that the Tribunal did not have regard to the fact that the applicant contacted the sponsor by telephone while he was in Adelaide. The applicant did not take this point further in oral submissions.
The Tribunal did not have before it copies of telephone records evidencing the applicant’s telephone calls with the sponsor (CB 570). The Tribunal acknowledged the difficulty faced by the applicant in obtaining evidence such as telephone records that might have corroborated her version of events [34]. But the Tribunal also noted at [36] that it was ultimately incumbent on the applicant to collate and provide evidence in support of the application and was not satisfied that the applicant had done so.
Photographs
The evidence before the Tribunal included a number of photographs. On the back of the photographs provided to the Tribunal (CB 433-464) the applicant had written the dates and a short description.
The applicant took the Court to a number of photographs in the Court Book including:
(a)a party at a friend’s house in Adelaide in July 2014 (CB 437);
(b)her husband seeing her off at Adelaide airport in July 2014 (CB 433, 435 and 459);
(c)dinner at a friend’s house in Adelaide in July 2014 (CB 465);
(d)her wedding with the sponsor in August 2014 (CB 427, 431, 451, 453, 455 and 457);
(e)saying goodbye to friends at Brisbane airport in August 2014 (CB 469);
(f)a lunch or dinner with friends in Brisbane in September 2014 (CB 463);
(g)her husband’s citizenship ceremony in Brisbane in March 2015 (CB 180); and
(h)a party at a Chinese restaurant in Adelaide (CB 182).
The applicant submitted that the photographs taken at the Chinese restaurant in Adelaide at CB 182 were taken after the wedding. The Court observes that these are the same photographs as that which appears at CB 463 which the applicant marked as being of a lunch or dinner with friends in Brisbane in September 2014. This was not long after the wedding. The applicant also submitted that the photograph of the sponsor’s citizenship ceremony was also taken after her wedding to the sponsor (CB 180). The sponsor became an Australin citizen in 2015.
The Tribunal specifically considered the photographs at paragraph [51] and [53] in its reasons for Decision when considering the social aspects of the relationship. The Tribunal stated that the majority of the photographs related to the courtship period or the wedding and that many of the photographs were of the same occasions. The Tribunal also stated that there appeared to be photographs from four occasions postdating the wedding, to which it said it gave some weight.
The parties joint bank account
As to the parties joint account, the evidence before the Tribunal was that the parties only joint asset comprised their joint bank account. The Tribunal had before it the bank statements for the joint bank account for the period of 17 December 2014 to 5 April 2017 (CB 406-424).
The Tribunal considered the applicant’s submissions with regard to each parties’ financial contributions when it considered the financial aspects of the relationship (at [39]-[43]). The Tribunal concluded that the applicant and the sponsor did not pool their financial resources or share day-to-day household expenses.
Witness evidence
The applicant went on to make submissions that the relationship was genuine and that she thought she fulfilled the role and responsibilities of a wife in a marriage.
The applicant referred to evidence of friends and witnesses who were aware of the relationship and gave evidence at the Tribunal hearing. Specifically, she referred the Court to the evidence of Ms Linh, who was a witness at the hearing and her landlord who had provided a letter (CB 134) and a statutory declaration (CB 184) – but was too unwell to give evidence at the Tribunal hearing.
The Tribunal referred to witness evidence at [54] to [57] of its reasons for Decision when considering the social aspects of the relationship and acknowledged that there was some social recognition of the relationship between the applicant and the sponsor but did not find the evidence sufficiently compelling to support a finding in the applicant’s favour (at [57]) and that on balance it was not satisfied on the evidence as a whole that the parties represented themselves to other people as being married to each other that their friends and acquaintances believed the relationship to be genuine and that they planned and undertook joint social activities (at [58]).
The Tribunal referred to the landlord’s evidence at the hearing when considering the nature of the household and whether the applicant and the sponsor cohabited as a couple for 60% of the time in Brisbane (at [45]). The Tribunal said it was cognisant that the landlord was too unwell to give evidence at the hearing (at [34]). The Tribunal considered the landlord’s letter dated 2 November 2015 (CB 134) and his statutory declaration dated 24 March 2017 (CB 184). The Tribunal concluded that the landlord’s evidence was brief and provided little insight into the applicant’s and sponsor’s living arrangements (at [46]).
Overall, the Court is of the view that the Tribunal’s assessment of the evidence and its reasoning having regard to each of the factors in reg 1.15A(3), was entirely orthodox. As the first respondent submitted (FRS [25]) in summary:
(a)The Tribunal’s reasons contain a summary and cogent analysis of the evidence before it, having regard to each of the principal matters under reg 1.15A(3); as well as its findings on the specific matters underlying each of the principal matters, namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the applicant and sponsor’s commitment to each other.
(b)Ultimately, The Tribunal found that the evidence before it fell short of satisfying it that the applicant and the sponsor were ever in a married relationship within the meaning of s 5F(2) of the Act.
(c)The Tribunal’s reasons demonstrated that it had concerns with respect to the credibility and reliability of evidence provided by the applicant and her witnesses concluding that there was very little credible evidence available and that the evidence that was available did not support a finding in the applicant’s favour. The Tribunal further recorded that because of the passage of time since the purported relationship and the hearing, it concluded the evidence of the applicant and all witnesses to be unreliable, especially given on the applicant’s own evidence, her witnesses had forgotten key events and had dates and times upside down.
No jurisdictional error is established on ground one.
Ground Two: Tribunal erred in finding that the Applicant and the sponsor did not live together.
Ground two of the application for judicial review relies upon the same particulars as those itemised for ground one.
So far as ground two is concerned with Tribunal’s finding that the applicant and the sponsor did not cohabit 60% of the time in Brisbane, the Tribunal considered (as noted above) the landlord’s evidence. The Tribunal also considered what it described as the small selection of correspondence addressed to their shared address including the tax returns, telephone bills and bank statements. The Tribunal concluded that while the correspondence indicates that the applicant and the sponsor nominated the shared address as their postal address to various institutions, it did not demonstrate that the couple lived at the shared address together in a manner consistent with a married relationship (at [46]).
There is nothing in the Tribunal’s assessment of that evidence or its reasoning that demonstrate jurisdictional error.
No jurisdictional error is established on ground two.
CONCLUSION
Accordingly, for the reasons given above, the application is dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 26 September 2025
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