Truong v Minister for Immigration and Border Protection - [2014] FCA 1312

FEDERAL COURT OF AUSTRALIA
Truong v Minister for Immigration and Border Protection [2014] FCA 1312

Citation: Truong v Minister for Immigration and Border Protection [2014] FCA 1312

Appeal from: Truong v Minister for Immigration & Anor [2013] FCCA 1965

Parties: DUC THAO TRUONG v MINISTER FOR IMMIGRATION & BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL

File number(s): VID 1342 of 2013

Judge(s): GREENWOOD J

Date of judgment: 3 December 2014

Catchwords: MIGRATION – consideration of an appeal from the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant’s application for a Partner (Temporary) (Class UK), Subclass 820 (Spouse) visa – consideration of the definition of spouse in reg 1.15A of the Migration Regulations 1994 (Cth) – consideration of the criteria for the grant of a subclass 820 visa contained in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) – consideration of the distinction between “time of application” criteria and “time of decision” criteria – where Tribunal failed to distinguish between matters relevant to the “time of application” criteria and matters relevant to the “time of decision criteria”

Legislation: Migration Act 1956 (Cth), s 31
Migration Regulations 1994 (Cth), regs 1.03; 1.15A; 2.01; 2.03; Sch 1, cl 1214C; Sch 2, cls 300.213, 820.21, 820.211, 820.22, 820.221, 820.222, 820.223, 820.226

Cases cited: Truong v Minister for Immigration & Anor [2013] FCCA 1965 – cited and quoted
Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Full Court of the Federal Court of Australia, 8 May 1990, Northrop, Wilcox and French JJ) – cited

Date of hearing: 4 March 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 111

Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr D Brown, Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1342 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:
DUC THAO TRUONG
Appellant

AND:
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

3 DECEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 2 and 3 of the orders made by the Federal Circuit Court on 3 December 2013 be set aside and in lieu thereof there be orders that:
(a)the application for judicial review is allowed;
(b)the decision of the Migration Review Tribunal made on 20 February 2013 be set aside; and
(c)the matter be remitted to the Migration Review Tribunal for determination according to law.

3.Pursuant to ss 17 and 23 of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011, these orders are made in Chambers and published and pronounced from Chambers together with reasons for judgment in support of the orders, without further convening the parties.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1342 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:
DUC THAO TRUONG
Appellant

AND:
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

GREENWOOD J

DATE:

3 DECEMBER 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

In these proceedings the appellant appeals from a decision of the Federal Circuit Court of Australia (Truong v Minister for Immigration & Anor [2013] FCCA 1965) dismissing his application in that court for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”).
The judgment of the Federal Circuit Court was pronounced, and orders made, on 3 December 2013. The primary Judge ordered that the application be dismissed and the applicant (the present appellant) pay the Minister’s costs.
At the hearing of the appeal on 4 March 2014, the appellant appeared in person before the Court assisted by an interpreter skilled in the Vietnamese and English languages. The appellant was accompanied at the bar table by a woman whom the Court understood to be his wife, Ms Hong Dao Trieu.
BACKGROUND
The appellant is a citizen of Vietnam. While in Ho Chi Minh City, he applied for and on 24 November 2006 was granted, a Prospective Marriage (Temporary) (Class TO), Subclass 300 (Prospective Marriage) visa (a “Subclass 300 visa”) which entitled him to enter and remain in Australia until 24 August 2007.
The appellant’s application for that visa was “sponsored” by Ms Hong Dao Trieu, who was, for the purpose of the application, the appellant’s “prospective spouse” (see cl 300.213 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”)).
Ms Trieu is (and has been since 5 May 2003) an Australian citizen. Although she had previously been married to a Mr Tee Tran (whom the Tribunal sometimes erroneously referred to as “Mr Tan”), she had become divorced from him on 26 October 2003.
The appellant entered Australia on 9 December 2006. It was a condition of his Subclass 300 visa that he lodge an application for a Partner (Temporary) (Class UK), Subclass 820 (Spouse) visa (a “Subclass 820 visa”) and a Partner (Residence) (Class BS), Subclass 801 (Spouse) visa (a “Subclass 801 visa”).
The appellant married Ms Trieu in Victoria on 3 January 2007.
On 31 May 2007, the appellant applied to the Department of Immigration and Citizenship (as it was then called) for a Subclass 820 visa and a Subclass 801 visa. That application was (as is required) sponsored by the same sponsor, Ms Trieu. The application was refused by a delegate of the Minister on 8 April 2011 on the ground that although the appellant (the visa applicant) and Ms Trieu (the visa sponsor) were married, they were not “spouses” within the meaning of that term in the relevant provisions of the legislation.
On 20 February 2013, the Tribunal affirmed the delegate’s decision.
THE LEGISLATIVE SCHEME
The relevant legislation, as it was in force on 31 May 2007 (the date of the appellant’s application for a Subclass 820 visa), is this.
Section 31 of the Migration Act 1958 (Cth) (the “Act”) provides that there are to be “prescribed classes of visas” (s 31(1)) and that the “regulations may prescribe criteria for a visa or visas of a specified class” (s 31(3)).
Regulation 2.01(a) of the Regulations provides that for the purposes of s 31 of the Act, the prescribed classes of visas are “such classes (other than those created by the Act) as are set out in the respective items in Schedule 1”.
Clause 1214C of Sch 1 provides for there to be a class of visa known as a “Partner (Temporary) (Class UK)” visa. That visa has subclasses “820 (Spouse)” and “826 (Interdependency)”: cl 1214C(4).
Regulation 2.03(1) of the Regulations provides that:
For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:
(a)the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
Clauses 820.1 to 820.7 of Sch 2 of the Regulations set out the criteria for the grant of a Subclass 820 visa. Those criteria include both criteria which must be satisfied at the time of the application and criteria which must be satisfied at the time of the decision. Clause 820.21 sets out the criteria to be satisfied for a Subclass 820 visa “at time of application”. Clause 820.211(1) provides:
(1)The applicant:
(a)is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
Of the subclauses listed in cl 820.211(1)(b), only subclause (6) is relevant to the appellant’s visa application. It provides:
(6)An applicant meets the requirements of this subclause if the applicant:
(a)is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)has married the sponsoring spouse under a marriage that is recognised as valid for the purposes of the Act; and
(c)the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
(A)has turned 18; and
(B)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)continues to be the spouse of the sponsoring spouse.
[emphasis added]
Clause 820.22 sets out the criteria to be satisfied for a Subclass 820 visa “at time of decision”.
Clause 820.221 (which is one of the criteria in cl 820.22) relevantly provides:
(1)In the case of an applicant referred to in subclause 820.211(2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b)meets the requirements of subclause (2) or (3).
Subclause (2) of cl 820.221 relates to circumstances in which the sponsoring spouse has died. Subclause (3) relates to circumstances in which the relationship between the applicant and the sponsoring spouse has ceased and either the applicant or a dependent child of the sponsoring spouse or of the applicant or of both of them has suffered domestic violence committed by the sponsoring spouse. Neither subclause is relevant to this matter.
Other criteria (in cl 820.22) potentially relevant to this matter, to be satisfied for a Subclass 820 visa “at time of decision” are as follows:
820.222
If the Minister has requested an assurance of support in relation to the applicant, the Minister is satisfied that the assurance has been accepted by the Secretary of the Department of Family and Community Services.
820.223
(1)Subject to subclause (2), the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009.
(2)Subclause (1) does not apply to an applicant referred to in subclause 820.211 (3), (4) or (5).
…
820.226
The Minister is satisfied that:
(a)the applicant is the holder of a valid passport that:
(i)was issued to the applicant by an official source; and
(ii)is in the form issued by the official source; or
(b)it would be unreasonable to require the applicant to be the holder of a passport.
As to the meaning of “spouse”, reg 1.03 of the Regulations provides that “spouse” has the meaning set out in reg 1.15A. Regulation 1.15A relevantly provides:
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship, as described in subregulation (2).
(1A)Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b)the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
…
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for … [among others] a Partner (Temporary) (Class UK) visa; the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i)any joint responsibility for care and support of children, if any; and
(ii)the parties’ living arrangements; and
(iii)any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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.
...
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
[emphasis added]
It follows that at the “time of application” for the visa the applicant must continue to be the spouse (as defined) of the sponsoring spouse (that is, a continuing spousal state from the date of a marriage recognised as a valid marriage for the purposes of the Act, to the time of application), and, at the time of making a decision (by the Minister, his or her delegate or any Tribunal standing in the statutory shoes of the Minister) of whether to grant or refuse the application, the visa applicant must continue to be the spouse of the sponsoring spouse.
Relevantly in the case of this visa applicant the two individuals must be married to each other under a valid marriage (reg 1.15A(1A)(a)) and the Minister (decision‑maker) must be satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing, and they live together (or they do not live separately and apart on a permanent basis) (reg 1.15A(1A)(b)), at the time of the application for the visa and the spousal state must be a continuing one at the time of making a decision on the application.
ISSUES IN THE PRESENT CASE
As to the criteria the appellant had to satisfy for a Subclass 820 visa at the time of his application for that visa (cl 820.21), it is uncontroversial that he: was not the holder of a Subclass 771 (Transit) visa (cl 820.211(1)(a)); was the holder of a Subclass 300 (Prospective Marriage) visa (cl 820.211(6)(a)); had married the sponsoring spouse (Ms Trieu) under a marriage that is recognised as valid for the purposes of the Act (cl 820.211(6)(b)); and the application was sponsored by the spouse (cl 820.211(6)(c)).
The only issue in the present case (at least as far as the Tribunal was concerned) was whether the appellant continued to be the spouse of Ms Trieu at the time of his application for the Subclass 820 visa (as required by cl 820.211(6)(d) of Sch 2), in the sense that the appellant and Ms Trieu were at that time in a married relationship as that term is defined by reg 1.15A(1A) of the Regulations, having regard to all of the circumstances of the relationship, including, in particular, those listed at regs 1.15A(3)(a) to (d).
The Tribunal was ultimately not satisfied that, at the time of the application for the visa, the appellant and Ms Trieu were in a married relationship. Although the Tribunal accepted that the appellant was married to Ms Trieu under a marriage recognised as valid for the purposes of the Act (reg 1.15A(1A)(a)), it was not satisfied that the appellant and Ms Trieu had a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together or did not live separately and apart on a permanent basis (regs 1.15A(1A)(b)(i) to (iii)).
THE GROUNDS OF APPEAL
In his notice of appeal, the appellant appeals from the whole of the judgment of the Federal Circuit Court given on 3 December 2013. Under a heading “Grounds of Appeal”, the notice of appeal states that the “grounds of appeal on which the Appellant seeks orders under Section 39B of the Judiciary Act, in relation to the decision” [emphasis added] is that the “decision of the Tribunal and Court was made without jurisdiction or is affected by an error of jurisdiction” [emphasis added]. The notice of appeal describes nine “particulars” of that ground, in these terms:
a.The tribunal has erred in its interpretation of [reg] 1.15A and clause 820.211(6) in that there was ample evidence for the conclusion that that [sic] the [appellant] and sponsor had a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing and that the couple did live together.
b.It was not a relevant consideration that the [appellant] was aware as to who supported his wife’s travel.
c.It is an irrelevant consideration that the fact the wife (sponsor) travelled numerous times to see her family in Vietnam and this signified she was not getting emotional support from the husband ([appellant]).
d.The tribunal should have taken into account the evidence of the landlord Mr. Tan Thanh.
e.The tribunal should have taken into account the fact they resided in a room and therefore household and domestic activities were of less significance.
f.The tribunal has automatically assumed that because the children of the sponsor gave no supporting evidence, then it must draw an adverse inference.
g.The tribunal did not ask the [appellant] or the sponsor about the nature of the relationship between the [appellant] and the sponsor’s children.
h.The tribunal has taken into account an irrelevant consideration and that is the anonymous allegations received by the department. They are anonymous and therefore should not even be mentioned in the decision, as it has no bearing.
i.It is irrelevant that the tribunal gave the [appellant] 2 letters inviting his comment. The first letter was received and answers were given in response to the allegations. The second letter was a repeat of the same questions and the [appellant] relied upon the answers he had already provided.
The appellant’s notice of appeal was accompanied by an “affidavit in support of application” sworn or affirmed (it does not state which) and filed by the appellant on 12 December 2013. In that affidavit, the appellant says that “the Tribunal and then the Court has made jurisdictional error in that … [there then follow the same particulars (a) to (i) quoted above]”. On 25 February 2014, the appellant filed a document entitled “Applicant’s Contentions of Fact and Law”. In addition to other contentions, it also recites the same particulars (a) to (i).
It is immediately apparent that neither the sole ground of appeal nor any of the “particulars” refer to any error on the part of the Federal Circuit Court Judge. The particulars only refer to matters pertaining to the Tribunal’s decision, and, on its face, the ground of appeal is that the Federal Circuit Court’s decision was made without jurisdiction or was affected by an error of jurisdiction.

Nevertheless, I propose to treat the notice of appeal as if the appellant were urging this Court to find that the primary Judge had erred (in an appealable sense) by failing to find jurisdictional error on the part of the Tribunal in respect of one or more of the particulars set out. That appears to be the contention advanced in the appellant’s Contentions of Fact and Law which states that the Federal Circuit Court “by agreeing with the reasons of the [Tribunal] has fallen into the same error” (para 12).
FACT FINDING BY THE TRIBUNAL
The relevant events leading up to the appellant’s application for a Subclass 820 visa are set out at [4] to [9] of these reasons.
At para 19 of its reasons, the Tribunal summarises the account provided by the appellant of his relationship with Ms Trieu (whom the Tribunal refers to as “the sponsor”):
·he met the sponsor at Tan Son Nhat Airport in Vietnam on 14 January 2003;
·they entered into a relationship 6 months later and decided to marry in February 2004;
·an engagement ceremony was held in Vietnam on 22 August 2004;
·a wedding ceremony was held in Vietnam on 28 October 2006;
·he was granted a Subclass 300 prospective spouse visa on 24 November 2006;
·he married the sponsor in Australia on 3 January 2007;
·he has not previously been married and has not had children; and
·the sponsor had previously married Tee Tran on 9 February 1996 and they were divorced on 26 October 2003. There were no children from this relationship.
The Tribunal notes that the material it had before it was comprised of the Department’s file relating to the appellant together with the following materials which the appellant had submitted to the Tribunal in support of his application for review:
·5 photo albums containing numerous photos of the [appellant] and sponsor in various social settings in Vietnam;
·numerous letters, accounts and bank statements addressed to the [appellant] and/or sponsor;
·bundles of letters and cards in Vietnamese (not translated);
·copies of stamped passport pages showing travel to and from Vietnam; and
·statements from Tan Thanh Truong declaring that the parties have been renting a room at his home(s) over the past 6 years.
The appellant was represented in relation to the Tribunal’s review by a registered migration agent.
In a written submission to the Tribunal on behalf of the appellant, the appellant’s representative stated that the appellant and Ms Trieu had lived together at three particular locations in Victoria between December 2006 and the time of the submission. The submission also stated that the appellant and Ms Trieu had returned together to Vietnam to visit family and friends during the periods 7 August to 11 September 2007, 10 March to 16 April 2009, and 19 January to 23 February 2010.
In addition to providing these documentary materials, both the appellant and Ms Trieu gave evidence at a hearing before the Tribunal on 23 October 2012. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal records that, at the time it invited the appellant to the hearing, it had indicated that it wanted to take evidence from Mr Tran (Ms Trieu’s former husband) and Ms Ngo (Mr Tran’s new wife), but in a response to the hearing invitation the appellant’s representative advised that Mr Tran and Ms Ngo had left Geelong one year ago and their whereabouts were unknown.
The Tribunal received oral evidence from the appellant on a range of matters. It is not necessary to identify in these reasons the detail of each of the questions the Tribunal put to the appellant or the appellant’s response to each question. It is sufficient to note that the Tribunal asked questions of the appellant about topics such as his place of residence and living arrangements with Ms Trieu; his place of work, which was a restaurant that had previously been owned by Mr Tran but had subsequently been bought by Ms Trieu’s daughter; the relationship between Ms Trieu and her former husband, Mr Tran; the frequency and nature of travel undertaken by the appellant with Ms Trieu to Vietnam, and travel undertaken by Ms Trieu alone to Vietnam; how that travel was financed; the sources of income for the appellant and Ms Trieu; the interests and activities the appellant shared with Ms Trieu; and the appellant’s long term plans.
The Tribunal also referred to anonymous allegations made to the Department that the appellant’s relationship with Ms Trieu was contrived or not genuine and that Ms Trieu was in fact continuing to live in a spousal relationship with her former husband, Mr Tran. The Tribunal asked the appellant why he thought those allegations had been made. The appellant told the Tribunal that he did not know why the allegations had been made.
As mentioned above, the Tribunal also received oral evidence from Ms Trieu. Ms Trieu’s oral evidence related to similar matters as that given by the appellant, along with some further matters.
After the hearing, on 16 November 2012, the Tribunal wrote to the appellant pursuant to s 359A of the Act to invite him to comment on or respond to certain information which the Tribunal considered would, subject to the appellant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The information was set out in the Tribunal’s letter in the following terms:
1. Costs associated with Ms Trieu’s overseas travel
When the Tribunal asked you how Ms Trieu’s frequent overseas travel is funded, you said that you pay for the overseas travel on your credit card. Ms Trieu, however, told the Tribunal that the overseas travel is paid by her father-in-law, her sister-in-law and her brother. Furthermore, she stated that, if the travel was not supported by family, she would need to use the credit card.
This information is relevant to the review because the differences in the two accounts are significant: the Tribunal expects that a couple in a genuine spousal relationship would have a shared knowledge of the source of funds for regular overseas travel made by one or both parties. This may lead the Tribunal to find that the claims and evidence provided by you and Ms Trieu are not credible.
…
2. Reason for Ms Trieu’s overseas travel
Travel movements records from the Department show that Ms Trieu has made 13 trips overseas since your marriage in 2007 and that you have only travelled 3 times during the same period. Both you and Ms Trieu told the Tribunal that Ms Trieu has been stressed and has needed to travel to see friends and family in Vietnam. You also advised the Tribunal that Ms Trieu has wanted to visit family members who have been unwell.
This information is relevant to the review because it indicates to the Tribunal that Ms Trieu does not seek emotional support and comfort from you in a manner consistent with a genuine spousal relationship. You are frequently apart and the Tribunal may conclude that Ms Trieu’s primary emotional attachments are outside the spousal relationship. This finding may raise doubts about the credibility of the evidence provided by you and Ms Trieu.
…
3. Details of your current employment
At the hearing the Tribunal asked you where you are currently working. You told the Tribunal that you have been working as a cook at a restaurant in Geelong for about 1 year. You said that you were unable to remember the name of the restaurant however you provided the Tribunal with a business card of the Palace of the Orient Restaurant, Geelong, with the name of Tee Tran on the card. You said that Mr Tran sold the restaurant to a woman about 1 year ago and that you had heard that Mr Tran and his wife have moved to Perth.
The Tribunal noted that the delegate’s decision referred to Departmental officials visiting the restaurant in December 2010 and finding that you were working at the restaurant at that time, which was nearly 2 years ago. You then said that you could not recall when you started work at the restaurant, you only remember that you had a trial period of 2 weeks before you were officially employed. When the Tribunal asked Ms Trieu about your employment at the restaurant, she said that you had been working there for 2 years and that Mr Tran sold the restaurant to her daughter 1 year ago.
This information is relevant to the review because the Tribunal finds it difficult to accept that you do not know the name of the restaurant in which you have worked for 2 years, nor that you could not recall when you started work at the restaurant. The Tribunal also considers it significant that you said that the restaurant’s new owner is a woman but you did not tell the Tribunal that the owner is your step-daughter, as your relationship with Ms Trieu’s children is a relevant factor in the Tribunal’s assessment of the nature of your relationship with Ms Trieu.
…
4. The Department’s investigation of anonymous allegations regarding your relationship with Ms Trieu
Information on the departmental file shows that the Department received several allegations that you and Ms Trieu have contrived your relationship in order to secure you a positive migration outcome. At the hearing you and Ms Trieu both told the Tribunal that you did not know why these allegations have been made.
Information on the departmental file shows that Departmental officers visited the Mr Tran’s restaurant in December 2010 to investigate the allegations. Evidence found by the Departmental officers at the restaurant supports the allegation that Ms Trieu and Mr Tran are in a continuing spousal relationship. In particular, personal documents belonging to Ms Trieu were found in Mr Tran’s bedroom, and Mr Tran’s wife’s personal effects were found in a different room in the restaurant, which may suggest that Mr Tran shares a bedroom with Ms Trieu and not with his current wife.
At the hearing the Tribunal asked Ms Trieu to explain why personal documents belonging to her were found in Mr Tran’s bedroom when departmental officers visited the restaurant in December. Ms Trieu told the Tribunal that she had sometimes sent documents to Mr Tran for translation and that some of these might have been in his possession when the restaurant was visited.
This information is relevant to the review because it may indicate that the spousal relationship between Ms Trieu and Mr Tran has not ceased and that you and Ms Trieu do not live together as husband and wife.
Information on the departmental file also indicates that Ms Trieu recorded the Palace of the Orient restaurant as her ‘intended address in Australia’ on incoming passenger cards on 7 occasions between 2003 and mid 2007. This information is relevant to the review because it may indicate that Ms Trieu continued to live at the restaurant with Mr Tran during this period. This would be inconsistent with Ms Trieu’s evidence to the department that she ceased living with Mr Tran around the time that they separated/divorced. The Tribunal notes that the Ms Trieu and Mr Tran divorced on 26 October 2003.
…
5. Inconsistent evidence given in the interview with the delegate
The delegate’s decision on the departmental file refers to inconsistent evidence given at the interview by you and Ms Trieu.
In particular, you gave quite different accounts regarding the purchase of a car. You said that the car cost $5,000, that you and Ms Trieu pooled your funds to provide $3,000 and that you borrowed $2000 from your friends Thai (male) and Ngoc Anh (female). You said that, as at January 2011, you had repaid $1500 of the debt and only owed your friends $500. In contrast, Ms Trieu told the delegate that the car cost $7,000 and that you borrowed the entire amount from your housemate, Mr Tan Thanh. She said that, at the time of the interview in January 2011, none of the $7,000 debt had been repaid.
At the interview the delegate asked you what you did on New Year’s Eve 2010. You said that you and Ms Trieu went to the Geelong foreshore together to watch the fireworks alone, and that Ms Trieu’s children stayed home to sing karaoke. Ms Trieu told the delegate that her children watched the fireworks with her and with you, and that you all travelled there and back together in your car. Furthermore, you said that you had not gone anywhere else for dinner prior to watching the fireworks. Ms Trieu said that you had gone together to Ngoc Anh’s house for a barbeque dinner.
This information is relevant to the review because it may indicate that you do not have a shared knowledge of social and financial aspects of the relationship which is consistent with a genuine spousal relationship. The differences in your accounts of events may indicate that you have not been truthful in your evidence on these matters. This may lead the Tribunal to doubt the credibility of other evidence you have provided about your relationship with Ms Trieu.
On 18 December 2012 the Tribunal received a response from the appellant which addressed, in the following terms, the matters raised in the Tribunal’s letter:
1.        Costs associated with Ms Trieu’s overseas travel
The [appellant] states when he was asked how his wife’s overseas travel was funded, he answered “by card”, but he never said “by my card” as he did not have any credit card. However the interpreter said “his card”. Please double checks the tape.
The [appellant] states, his wife was correct in stating that when she was in Vietnam, her parents and siblings gave her money to spend.
The [appellant] states, as usual whenever his wife wanted to travel overseas they would try to buy her a ticket. If money was not available they would borrow (withdraw) money from his wife’s credit card.
2.        Reason for Ms Trieu’s overseas travel
The [appellant] states, as both of them have stated at the hearing, his wife (Ms Trieu) has traveled [sic] to Vietnam many times because she suffered from stress and wanted to relieve stress by visiting relatives and friends.
The [appellant] states, his wife suffered from stress physically because of “lack of sleep” and, his wife suffered from stress emotionally because she was worried too much about her family members in Vietnam, especially her mother who suffered from long-term sickness. In addition, his father also suffered from permanent sickness and he was paralyzed [sic] for three years and was not able to walk.
The [appellant] states he knows his wife is a filial pious child who is extremely grateful to her parents to whom she is keen to visit and care for.
The [appellant] [states] they have supported each other emotionally and physically. In particular they comforted each other when one was sad or stressful. The [appellant] states he agreed to let his wife travel to Vietnam many times mainly because she was worried too much about her parents in Vietnam.
The [appellant] states he loves his wife and she loves him. They always want to live together and travel together, especially overseas. However, as stated above, because his wife suffered from stress which was mainly caused by “lack of sleep and worries about their parents in Vietnam” who suffered from long-term sickness, she needed to see them and be with them to relieve her stress and worries. At the same time they did not have sufficient funds for both of them to travel. As a result, she has taken more trips to Vietnam than he has.
3.        Details of employment
(a)       Duration of employment
The [appellant] states the period from the date the Department officials’ visit (December 2010) to the date of hearing (October 2012) was one year and ten months or about two years.
The [appellant] states at the hearing, when asked he said “more than a year”. In fact it was not more than two years as calculated.
With regard to meeting with Mr Tran, the [appellant] states that, as he stated at the hearing, the last time he met him was about one year or more. However the interpreter said “over a year” instead of one year or more. Please double checks the tape.
(b)       The name of the restaurant
The [appellant] states he has been to Australia for six years but has not had the chance to study English. It was not easy for him to recall the long name of the restaurant when asked. He adds that, working as a cook what he has mainly concentrated on was cooking.
(c)       Name of new restaurant owner
The [appellant] states when his step-daughter purchased the restaurant she did not change the name of the owner on the card, but kept the name of Mr Tee Tran as the restaurant had been under his name for long time and that his name was familiar with regular customers. She did not want to loose [sic] the “goodwill”.
The [appellant] states, he misunderstood the question about the name of the new owner. When asked he thought the Tribunal wanted to know when the restaurant was sold, but not to whom it was sold. However, when answered, as recorded in the tape, he said “it was sold to a person whose name was Xuan. When asked the gender of the purchaser, he said it was a woman. In fact, as he adds, Xuan was the name of his step daughter whose full name is LAM My Xuan. He states he had no intention whatsoever to hide her name.
4.        The Department’s investigation of anonymous allegations
Both the [appellant] and his wife (Ms Trieu) state they did not know the reasons as to why, the allegations against them, had been made and who were the alligators.
The [appellant] confirms his relationship with his wife (Ms Trieu) was genuine and ongoing. He adds that they have been living together as husband and wife for the past six years. They have shared their lives together physically and emotionally. Both do not have any siblings or parents in Australia.
The [appellant] and his wife state the landlord couple and they do not understand English. Whenever they received an English document, they would ask others to translate for them.
The [appellant] states prior to the visit of the Department officials,   his wife (Ms TRieu) received some documents in English. As usual she went to ask Ms Oanh’s husband (Thai) to translate for her. But Ms Oanh’s husband was not available. By the way, Ms Oanh took the documents to the restaurant where she was working to ask Mr Tran to translate. Mr Tran’s wife left the documents in their bedroom with the intention that when her husband (Mr Tran) was free he would translate them.
The [appellant] states, that had been the reasons as to why Ms Trieu’s documents were found in Mr Tran’s bed room.
5.        Inconsistent evidence given at interview with the delegate
(a)       Cost of the car
The [appellant] states his wife and he had borrowed from the Mr Tan Thanh $7000 in cash with the intention to buy a car. Of this money, however, they have spent $4000 and only $3000 left.
Both husband and wife came to the agreement that they would buy the [car] for $5000 instead of $7000 as it initially planned.
The [appellant] then borrowed another $2000 from his friends Thai and Ngoc Anh and gave all $5000 in total to his wife (Ms TRieu).
Ms Trieu asked Tan Thanh (the landlord) to take her to see a car dealer in Geelong and bought the car with the price of $7000 because instead of $5000. She borrowed another $2000 from Tan Thanh. Ms Trieu states she liked that the car very much, but was worried that her husband would not be if the price was $7000 instead of $5000 as agreed.
The [appellant] states, at the interview with the Immigration officials in January 2011, when asked his wife said $7000 and he said $5000.
The [appellant] states, at the time of interview with the Department officials, he had paid $1500 to his friends (Thai and Ngoc Anh) and still owed them $500. At the same time his wife said they still owed Tan Thanh $7000 including the money they had borrowed to spend.
Following the interview with the Department the couple, as stated by the [appellant], reviewed and found correctly.
The [appellant] states apart from the above said documents, his wife (Ms Trieu) did not have any personal effects in a different room in the restaurant as claimed by the Department officials.
(b)       New Year’s Eve 2010
The [appellant] states the whole family (the couple and two children) planned to go to watch fireworks on the New Year’s Eve at the Geelong foreshore.
When the couple left home the two children were playing “Kara OK”, but they joined the couple later by [taxi] to watch fireworks with them and returned home on the same car.
The [appellant] states, perhaps, his wife (Ms Trieu) misunderstood the question of the Department official. In fact they went to eat BBQ at Ngoc Anh’s home the next day, but not the day before they went to watch fireworks.
[underline emphasis in original]

In some parts (not quoted in these reasons) of the Tribunal’s letter to the appellant, the Tribunal had referred to incorrect sections of the relevant legislation. The Tribunal therefore wrote a second letter to the appellant on 11 February 2013, correcting the references to the legislation and inviting him again to comment on or respond to certain information. That information was set out in substantially the same terms as in the first letter.
The appellant advised the Tribunal, in response to the second letter, that he had decided to make no further comment on these issues, and that he believed that he had, in his previous response, “provided the Tribunal with all the facts, comments and information regarding the issues mentioned” by the Tribunal. The appellant’s letter in response to the Tribunal’s second letter also took the opportunity to confirm that the relationship the appellant had with his wife was “genuine and ongoing”.
THE TRIBUNAL’S FINDINGS ARISING OUT OF ITS CONSIDERATION OF THE EVIDENCE
The Tribunal considered that the “principal issue in the present case is whether the applicant is the spouse of the sponsor at the time of application” [emphasis added] (para 11 of the decision record), and the Tribunal’s ultimate findings were directed only to the “time of application” criteria for the granting of a Subclass 820 visa. In his submissions on behalf of the Minster in this appeal, by way of explanation of the Tribunal’s approach, Mr Brown said this (at Transcript, p 10, ll 13‑16):
… for the purposes of the decision the tribunal considered that it did not need to go beyond the time of application criteria because, in the view of the tribunal, this was not a genuine spousal relationship, and that was a necessary condition at the time of application for the visa application to succeed.
Some of the Tribunal’s particular findings of fact and reasoning, however, appear to refer to circumstances prevailing at the time of the Tribunal’s decision. I will examine that discrepancy later in these reasons.
As to the first limb of the definition in reg 1.15A(1A) of a “married relationship”, the Tribunal was satisfied that the appellant and Ms Trieu had been and remained married to each other under a marriage that is recognised as valid for the purposes of the Act (reg 1.15A(1A)(a)).
The Tribunal then undertook a detailed consideration of the second limb: whether the appellant and Ms Trieu had a mutual commitment to a shared life as husband and wife to the exclusion of all others; whether the relationship between them was genuine and continuing; and whether they lived together or did not live separately and apart on a permanent basis (regs 1.15A(1A)(b)(i) to (iii)). In assessing whether their relationship was genuine and continuing, the Tribunal explained that it had had regard to all of the circumstances of the relationship, including evidence of the financial and social aspects and the nature of the appellant’s and sponsor’s household and their commitment to each other (reg 1.15A(3)).
As to the “financial aspects of the relationship”, after examining the relevant evidence, the Tribunal was “not satisfied that the parties pool resources or share day to day household expenses in a manner consistent with being in a genuine spousal relationship” (para 59).
As to the “nature of the household”, the Tribunal made the following finding at para 61:
The parties have told the Tribunal that they share the housework however they have provided no insights into their domestic activities. If a couple has lived together for more than 5 years they should be able to talk in detail about their household activities and provide robust evidence about their household arrangements. For these reasons, the Tribunal is not satisfied that the [appellant] and the sponsor have shared household and associated domestic activities.
In respect of the “social aspects of the relationship”, the tribunal made the following findings:
[64] It is the Tribunal’s view that the [appellant] has not provided a satisfactory reason for the inconsistent accounts given by him and his wife regarding their activities on New Year’s Eve 2010. The Tribunal concludes from this inconsistency that the parties were not together on this date and that they do not socialise together in a manner that is characteristic of a couple in a genuine spousal relationship.
…
[66] It is up to the [appellant] to make his case. Given the limited amount of evidence, the Tribunal cannot be satisfied that the [appellant] and the sponsor plan and share social activities and present themselves to others as a couple in a genuine and ongoing relationship.
As to the “nature of the persons’ commitment to each other”, the tribunal considered that there was information before the Tribunal which supported the claim that the appellant and Ms Trieu “have a genuine commitment to each other and see their relationship as long term”. However, at para 69, the Tribunal weighed that information against the following information which was also before the Tribunal:
·the sponsor makes frequent trips to Vietnam without the [appellant], and both parties told the Tribunal that she [the sponsor] needs to travel to see friends and family because she is stressed. This indicates to the Tribunal that the sponsor does not seek emotional support and comfort from the [appellant] as is usual in a genuine spousal relationship. They are frequently apart and the sponsor’s primary emotional attachments appear to be outside the spousal relationship;
·there is conflicting information from the parties regarding the financing of the significant overseas travel;
·there is limited independent evidence that the parties share finances and/or make joint financial decision [sic];
·there is little independent evidence, apart from photos, that supports the parties [sic] claims that they present to others socially as a couple; and
·there is no evidence that persuades the Tribunal that the sponsor’s adult children consider the parties to be in a genuine spousal relationship.
The Tribunal made the following finding on the nature of the appellant’s commitment to Ms Trieu, and vice versa:
[76] The Tribunal has considered all of the evidence to assess whether the contradictions or inconsistencies are material to the [appellant]’s claims and lead to an adverse credibility finding.
[77] There are several aspects of the evidence, as detailed above, which continue to give rise to doubt that the Tribunal has been told the full story about the relationship between the [appellant] and the sponsor. Little probative evidence has been presented to the Tribunal indicating that they are in a genuine and continuing spousal relationship, despite their claim that they have lived together as spouses for 5 ½ years. This lengthy period has provided the parties with ample opportunity to demonstrate evidence of their commitment to each other and social acceptance of them as a couple.
After considering each of these matters, the ultimate position reached by the Tribunal was this:
[78]     On the basis of the evidence before it, the Tribunal is not satisfied that at the time of application the [appellant] and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not satisfy the requirements of [regs 1.15A(1A)(b)(i) and (ii)].
[79]     The Tribunal does not accept that the [appellant] and the sponsor have lived together in a spousal relationship, nor that they intend to live together on a permanent basis as spouses. The Tribunal finds that the [appellant] and the sponsor did not live together at the time of the visa application and that the [appellant] and sponsor did live separately and apart on a permanent basis: [reg 1.15A(1A)(b)(iii)].
…
[82]     The Tribunal is not satisfied that, at the time of application, the [appellant] was the sponsor’s spouse within the meaning of [reg 1.15A]. Accordingly, the [appellant] does not satisfy cl.820.211(6). As c1.820.211(2) also requires that the [appellant] be the spouse of the sponsor, and as none of the other subclauses of 820.211 are relevant to the [appellant’s] circumstances, the [appellant] cannot meet cl.820.211(1) and cannot be granted a Subclass 820 visa.
THE REASONING OF THE PRIMARY JUDGE
The primary Judge dealt separately with each of nine particulars of the ground of review in the application to the Federal Circuit Court. Those particulars are identical to the particulars quoted at [28] of these reasons which support the ground of appeal in this Court.
As to the contention (Particular (a)) that the Tribunal had erred in its interpretation of reg 1.15A and cl 820.211(6) “in that there was ample evidence for the conclusion that the appellant and Ms Trieu had a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing and that the couple did live together”, the primary Judge held that this was simply a “broad factual assertion” which “traversed the entirety of the Tribunal’s reasons”. The primary Judge held that, “in a general way”, the Tribunal’s findings seemed to him to be open to it “on a reading of the materials in the case”.
Particular (b) asserted that it was not a relevant consideration to the Tribunal’s decision making whether or not the appellant was aware as to who supported his wife’s travel. The primary Judge understood this criticism to be a reference to the Tribunal’s finding of inconsistency between the appellant’s and Ms Trieu’s explanations of how Ms Trieu’s overseas travel was paid for. The primary Judge noted that inconsistencies in evidence are plainly a matter going to the credibility of the parties, and held that the Tribunal’s conclusion that parties living in a marriage “would be likely to know about something as important as the costs of extensive overseas travel”, in circumstances where on their own case they were impecunious and lacking in funds, “was entirely open to it”.
Particular (c) asserted that the Tribunal’s findings that Ms Trieu had travelled numerous times to see her family in Vietnam and that this signified she was not getting emotional support from the appellant, were irrelevant considerations. The primary Judge held that “the fact that [Ms Trieu] spent so much time overseas could reasonably be interpreted at the very least to suggest that [her] primary emotional attachment was not to her purported husband”. The primary Judge considered that this was “clearly a matter capable of being relevant in deciding whether the marriage was a genuine one”.
Particular (d) asserted that the Tribunal should have taken into account the evidence of the appellant’s landlord, Mr Tan Thanh. The primary Judge held that the Tribunal had taken this into account. Although the Tribunal had reservations about the quality of the evidence, those reservations were “open to it on the materials”.
As to Particular (e), which asserted that the Tribunal should have taken into account the fact that the appellant and Ms Trieu resided in a room and therefore household and domestic activities were of less significance, the primary Judge said that this assertion “in substance says that the Tribunal should have come to a different conclusion on the evidence”. The primary Judge held that the Tribunal’s finding – that parties living as a couple for five years could reasonably have been expected to have had evidence of their domestic activities – “was open to it on the materials”, and indeed, was a “common-sense observation about an ordinary facet of any marriage”.
As to Particular (f), which asserted that the Tribunal had “automatically assumed that because the children of the sponsor gave no supporting evidence, then it must draw an adverse inference”, the primary Judge said this:
In my view, the Tribunal’s finding that the parties were reticent to discuss the visa sponsor’s children was plainly open to it as an assessment of the demeanour of the visa applicant and the visa sponsor. The scepticism of the Tribunal in circumstances where the applicant works for the visa sponsor’s daughter is in my view understandable and reasonable. While the finding that the parties were not together as they had said they were on New Year’s Eve 2010 might or might not lead every person who considered the matter to the same conclusion as that of the Tribunal, the finding was one that was open to the Tribunal and does not suggest jurisdictional error. Furthermore, the Tribunal’s finding that the children’s failure to be called was a relevant consideration was in my view unexceptionable. The children were clearly not unavailable to give evidence as they live in the Geelong area, and one of the children actually employs the visa applicant.
Particular (g) asserted that the Tribunal did not ask the appellant or Ms Trieu about the nature of the relationship between the appellant and Ms Trieu’s children. The primary Judge, having noted that the Tribunal was correct to say that it was up to the appellant to make his case, held that “in the circumstances, it was not incumbent upon the Tribunal to ask the questions the visa applicant posits”.
Particular (h) asserted that in considering the anonymous allegations received by the Department the Tribunal had taken into account an irrelevant consideration. Particular (h) also contended that because the allegations were anonymous, they “should not even be mentioned in the decision, as it has no bearing”. The primary Judge held that the mere fact that the allegations were anonymous did not make them irrelevant. The primary Judge noted that the Tribunal was “properly cautious” about the weight it gave such matters and was “careful not to take the allegations as fact”. The Tribunal’s finding was that the 2010 investigation by Departmental officers (which had been initiated following the anonymous allegations) had produced anomalies. That conclusion was, according to the primary Judge, “clearly open to [the Tribunal] on the materials”.
Particular (i) asserted that it was irrelevant that the Tribunal had sent the appellant two letters inviting his comment, on the basis that the second letter was a repeat of the same questions and the appellant relied upon the answers he had already provided. The primary Judge concluded that although it was true that the second letter was sent to correct a minor error in the first one, nevertheless “the Tribunal was right to say that it had given the applicant two opportunities to comment and right to note that the applicant had not provided satisfactory responses”.
The primary Judge therefore concluded that the appellant’s criticisms were all “in substance either misconceived and/or merits review”. His Honour held that the Tribunal’s finding was “clearly open to it”.
CONSIDERATION OF THE GROUNDS OF APPEAL
Before turning to consider each of the particulars of the ground of appeal in the notice of appeal, it is necessary to say something about two particular matters: first, the way that the primary Judge approached the appellant’s assertion in the Federal Circuit Court that the Tribunal’s decision was affected by jurisdictional error; and second, the apparent failure of the Tribunal and the primary Judge to distinguish between matters relevant, on the one hand, to whether the appellant and respondent were in a spousal relationship at the time of the visa application and, on the other hand, to whether they were in a spousal relationship at the time of the Tribunal’s decision.
As to the first matter, the primary Judge’s only discussion of the relevant law is in these terms:
[4] All concerned agree that the only issue before the Tribunal relevant to these purposes was whether or not the applicant was in a spousal relationship with his visa sponsor. The Tribunal asserted at [para 13 of the decision record] that:
“In the case of both married and de facto relationships, the Tribunal must be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis.”
[5] In my view that is a correct enunciation of the relevant applicable, and critical, principle.
[6] The Tribunal’s decision commences by setting out a Review of the Application and the Relevant Law. As I have indicated there is no dispute about what the relevant law is, and that the passage cited sufficiently indicates what the relevant test is.
[bold emphasis added]
The primary Judge’s reasons do not contain any discussion of the fact that, pursuant to reg 1.15A(3) (reproduced at [22] of these reasons), there are particular aspects of the circumstances of the relationship to which the Minister (and therefore the Tribunal in place of the Minister) must have regard in forming an opinion whether two persons are in a married relationship. If it were simply the case that the statement quoted at [4] of the primary Judge’s reasons was the extent of the statutory test, then the primary Judge’s discussion of the particulars of the appellant’s ground of review and whether or not each of the Tribunal’s findings were open to it, may well have been a correct approach. But where, as here, there is a comprehensive (although not exhaustive) legislative statement of matters to which the Tribunal must have regard, it is necessary to examine the Tribunal’s reasons in light of those matters. That is, whether or not any of the particulars of the ground of review (or, in the case of this appeal, the ground of appeal) correctly assert that the Tribunal fell into jurisdictional error by failing to consider relevant matters or by considering irrelevant matters, the relevance (or not) of those matters is to be determined by reference to reg 1.15A(3).
The appellant’s Contentions of Fact and Law document filed in this appeal cites a passage of the decision of the Full Court in Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, 8 May 1990, Northrop, Wilcox and French JJ), in which their Honours set out a test for assessing whether a marriage is genuine. Dhillon, however, pre‑dates the statutory definition of marriage contained in reg 1.15A (indeed, it pre-dates the entirety of the Regulations, in their present form). It is therefore of no assistance.
As to the second matter mentioned at [67] above, the primary Judge’s reasons do not at any point disclose a consideration of the difference between the criteria which the Tribunal had to be satisfied were met at the time of the visa application and those which it had to be satisfied were met at the time of its decision.
The Tribunal’s reasons are repeatedly inconsistent as to whether the Tribunal was at any particular point undertaking a consideration of the matters relevant to meeting the “time of application” criteria or the “time of decision” criteria. For example, at para 53, the Tribunal said this:
The Tribunal next considered whether the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis: r.1.15A ( 1A)(b) and 1.15A(2)(c).
Putting aside the reference to reg 1.15A(2)(c) (which is entirely irrelevant to the appellant’s matter since it relates to de facto relationships), the language here (in present tense) strongly suggests that the Tribunal was considering the position at the time of its decision. The findings which follow this statement in the Tribunal’s reasons also suggest by their language that the Tribunal was making findings as to present matters (see, for example, the findings quoted at [50] to [52] of these reasons). At para 80, however, after having set out its findings, the Tribunal concludes that the appellant “does not satisfy cl.820.211(6)”. Clause 820.211(6), though, is a “time of application” criterion.

There is plainly an important distinction to be made between matters which are relevant to a finding that the appellant and Ms Trieu were or were not in a “married relationship” on 31 May 2007 (the date of the visa application) and matters which are relevant to a finding that they did or did not “continue to be” in a married relationship almost six years later on 20 February 2013 (the date of the Tribunal’s decision). Matters which are relevant to the latter finding may be irrelevant to the former. For example, simply because circumstances at one time might suggest that two people do not have a mutual commitment to a shared life as husband and wife, does not necessarily mean that they did not have that commitment at some earlier time. Of course, it may well be open to the fact finding body (in this case, the Tribunal) to draw an inference from evidence of later circumstances, as to the position at an earlier time, if findings of fact are made about the later circumstances and those facts properly support an inference about the earlier period. Nevertheless, it is necessary to examine the appellant’s contentions in light of the apparent failure by the Tribunal to distinguish between matters relevant to the two different times.
In respect of each of the particulars of the ground of appeal in the notice of appeal to this Court, the position is this.
As to Particular (a), the primary Judge was correct to say that this is simply a broad factual assertion that the Tribunal reached the wrong conclusion on the factual question it had to answer. There is nothing in Particular (a) which suggests any aspect of the Tribunal’s conclusion which might give rise to jurisdictional error.
As to Particular (b), which must be a reference to the Tribunal’s finding of “significant differences in the explanation given by the [appellant] and the sponsor in relation to the cost of overseas travel”, the Tribunal said this at para 55 of its reasons:
The Tribunal has considered the [appellant’s] response on this matter in his response to the letter sent by the Tribunal on 16 November 2012, however the Tribunal does not accept that the [appellant] would not know, or would not consider it significant, that his father, brother-in-law and sister support his wife’s travel.
At para 59, the Tribunal concluded:
The Tribunal considers that the evidence submitted to support the parties’ claim that they share financial aspects of a spousal relationship is of limited evidentiary value. Accordingly the Tribunal is not satisfied that the parties pool resources or share day to day household expenses in a manner consistent with being in a genuine spousal relationship.
[emphasis added]
The regard which the Tribunal had to the appellant’s awareness of who supported his wife’s travel was in the context of its consideration of the financial aspects of the relationship, including those matters described in reg 1.15A(3)(a), especially regs 1.15A(3)(a)(iii) and (v). It was open to the Tribunal to find, by way of an adverse credit finding, that the parties’ evidence on this point was of limited evidentiary value. The primary Judge was correct therefore to conclude that the appellant’s awareness of who supported his wife’s travel was relevant to the question whether or not the appellant and Ms Trieu did, in fact, share financial aspects of the relationship by, for example, pooling resources for significant expenses such as overseas travel.
The issue, though, is whether the appellant’s apparent lack of awareness at the time of the Tribunal’s hearing process (in late 2012) as to who supported his wife’s travel, was relied upon by the Tribunal to draw an inference that the parties did not pool resources or share day to day household expenses at the time of the visa application (31 May 2007). The Tribunal did not, on the face of the decision record, make that finding. Instead, it made a finding which is, on its face, addressed to the time of the decision making. The Tribunal said that it was not satisfied that “the parties pool resources [present tense] or share [present tense] day to day household expenses”. The Tribunal then relied on that finding (among others) to conclude that it was not satisfied that “at the time of the application the [appellant] and sponsor had a mutual commitment to a shared life as husband and wife”.
In light of the approach taken by the Tribunal, it was not a relevant consideration (to the question of whether the appellant and Ms Trieu were in a married relationship at the time of the visa application in 2007) whether or not the appellant was aware (in 2012) as to who had supported his wife’s travel in more recent times. Although it might have been possible for an inference to be drawn in a relevant way, the Tribunal’s reasons do not disclose that any inference was drawn. The Tribunal simply failed to engage with the question it purported to be answering when it was examining this aspect of the evidence.
The Tribunal therefore fell into jurisdictional error by considering the matters referred to in Particular (b) in answer to the question it asked itself.
As to Particular (c), the matter which is said to have been irrelevant considerations is the fact that Ms Trieu travelled numerous times to see her family in Vietnam, in reliance upon which the Tribunal concluded that this circumstance signified Ms Trieu was not getting emotional support from the appellant.
It may have been open to the Tribunal, having noted Ms Trieu’s travel to Vietnam without the appellant during periods after 31 May 2007, to draw an inference that that travel supported a finding that Ms Trieu did not seek emotional support and comfort from the appellant at 31 May 2007. However, again, the Tribunal’s reasons do not suggest that that inference was drawn. Instead, the Tribunal said that the travel “indicates to the Tribunal that the sponsor does not seek emotional support and comfort from the [appellant] as is usual in a genuine spousal relationship”. That is a finding which, on its face, relates to the present time.
The Tribunal did not engage with the question of whether the travel was relevant (by way of an inference drawn from findings of fact about Ms Trieu’s travel or otherwise) to the emotional support which Ms Trieu obtained from the appellant at 31 May 2007. In the absence of any consideration of that question in the process of reasoning, the travel after 31 May 2007 was not a relevant matter in determining whether the appellant was in a married relationship with Ms Trieu as at 31 May 2007, being the statutory question the Tribunal was asking itself.
The Tribunal therefore fell into error by considering the matters referred to in Particular (c).
As to Particular (d), a consideration of the Tribunal’s reasons demonstrates that the Tribunal did take into account the evidence of Mr Thanh. The appellant’s reference to the “evidence” of Mr Thanh must be a reference to letters from Mr Thanh provided to the Tribunal by the appellant’s representative. Those letters stated that the appellant and Ms Trieu had rented a room at properties owned by Mr Thanh at particular times between 2007 and 2012. As to these, the Tribunal said this at para 60:
The [appellant] states that he and the sponsor have lived together in a room subleased from a friend’s rental property(s) since February 2007 and he has submitted a letter from the landlord in support of his claim. The Tribunal concludes that the landlord, Mr Tan Thanh, is not an independent witness as he is a long‑standing family friend and it is claimed that he has provided the parties with a loan of $9000. The Tribunal is not prepared to give this letter from the landlord document sufficient weight to overcome its broader concerns with the evidence taken from the [appellant] and the sponsor.
[emphasis added]
It is plain from that passage of the Tribunal’s reasons that it did take Mr Thanh’s evidence into account, but gave it little weight. That assessment of the Tribunal’s reasons is consistent with the Tribunal’s later statement at para 68 that the “statement from the landlord” was one of four pieces of “information before the Tribunal which supports the claim that the [appellant] and the sponsor have a genuine commitment to each other and see their relationship as long term”. The Tribunal’s finding that Mr Thanh was not an independent witness, and the weight which the Tribunal therefore gave to this evidence, were findings open to it. They do not give rise to jurisdictional error.
Particular (e) asserts that the Tribunal should have taken into account the fact that the appellant and Ms Trieu “resided in a room”. The Tribunal found, however, as a fact (at para 79) that the appellant and Ms Trieu “did not live together at the time of the visa application and … did live separately and apart on a permanent basis”.
An analysis of the Tribunal’s reasoning leading to that finding demonstrates that the Tribunal does not refer to any evidence which goes to the question of whether the appellant and Ms Trieu resided in a room together on 31 May 2007.
The statutory question the Tribunal was asking itself, as to the aspect of reg 1.15A(1A)(b)(iii), was whether it could be satisfied that the appellant and Ms Trieu were living together or at least not living separately and apart on a permanent basis at the time of the application for the visa (31 May 2007). In answering that question the Tribunal found as a fact that they did not live together and were living separately and apart on 31 May 2007 and thus, on the facts as found, the Tribunal was not satisfied that they were in a married relationship for the purposes of reg 1.15A.
The finding of fact made by the Tribunal going to its state of satisfaction on the statutory question, directed as it was to a particular point in time, was not open to it, because the Tribunal failed to consider whether any of the evidence supported that finding at that particular point in time. The fact that evidence, for example, from the departmental investigation in December 2010 might have suggested that the appellant and Ms Trieu did not live together in December 2010 cannot support a finding that they also did not live together at 31 May 2007 (three and a half years earlier).
Since that finding was not open to the Tribunal having regard to the reasoning, Particular (e) draws attention to the conclusion that the Tribunal fell into error by failing to satisfy the requirement in reg 1.15A(3)(b)(ii) (read together with the Subclass 820 criteria in Sch 2 of the Regulations) to consider the “parties’ living arrangements” as a circumstance relevant to the determination of the existence of a married relationship at the time of the visa application.
As to Particular (f), in considering the social aspects of the relationship, the Tribunal was required to take into account “any basis on which the persons plan and undertake joint social activities”: reg 1.15A(3)(c)(iii). After noting inconsistencies between the evidence of the appellant and Ms Trieu in their respective accounts of a family outing on New Year’s Eve in 2010, the Tribunal said this:
[64]     It is the Tribunal’s view that the [appellant] has not provided a satisfactory reason for the inconsistent accounts given by him and his wife regarding their activities on New Year’s Eve 2010. The Tribunal concludes from this inconsistency that the parties were not together on this date and that they do not socialise together in a manner that is characteristic of a couple in a genuine spousal relationship.
[65]     The Tribunal considers that the sponsor’s children would be well placed to attest to the genuine nature of the relationship between their mother and the [appellant], however they have not provided supporting statements and they did not attend the hearing to give evidence.
[66]     It is up to the [appellant] to make his case. Given the limited amount of evidence, the Tribunal cannot be satisfied that the [appellant] and the sponsor plan and share social activities and present themselves to others as a couple in a genuine and ongoing relationship.
The process of reasoning reflected in para 64 is that the perceived inconsistency in the versions of the social event on New Year’s Eve in 2010 leaves open the conclusion that the appellant and Ms Trieu were not together on that occasion and, further, a conclusion that they “do not socialise together” in a manner characteristic of a genuine marital relationship in the reg 1.15A sense. These observations focus upon New Years Eve in 2010 and events in a forward-looking way to the events at the date of the Tribunal’s decision (“they do not socialise together” etc.), rather than an assessment of the factual position on 31 May 2007.
The process of reasoning reflected in paras 65 and 66 is that Ms Trieu’s children would be well placed to speak to the features of the relationship between the appellant and Ms Trieu in a way which would shed light on the reg 1.15A(1A)(a) and (b) and reg 1.15A(3) factors, and that in seeking to “make his case” and assist the Tribunal in reaching a state of satisfaction favourable to the appellant on the genuineness of the relationship, the sponsor and the appellant elected not to put on statements from the children nor present them before the Tribunal to give oral evidence. It followed for the Tribunal that the resulting “limited amount of evidence” meant that it could not be satisfied that Ms Trieu and the appellant plan and share social activities and present themselves to others as a couple in a “genuine and ongoing” relationship. There is some force (in the sense of being open to it to conclude) in the Tribunal’s concern that Ms Trieu’s daughter, who is the appellant’s employer, was not called by the appellant with the support of Ms Trieu to give evidence of the factors at regs 1.15A(1A)(b) and 1.15A(3) in seeking to assist the Tribunal to reach a state of satisfaction on the relevant factors favourable to the appellant. The particular factors under consideration in these paragraphs of the Tribunal’s reasons are the reg 1.15A(3)(c)(iii) factor of joint social activities and the reg 1.15A(1A)(b)(ii) factor of whether the relationship is “genuine and ongoing” (para 66) or “genuine and continuing” to use the language of the Regulations. Again, the Tribunal does not appear to have focussed its enquiry into these factors as at 31 May 2007. The Tribunal on one view seems to have expressed a broader concern of whether it could be satisfied about the particular factors at all or at any time.
Nevertheless, the Tribunal does not address the considerations at paras 65 and 66 in the context of the application at 31 May 2007 but rather expresses its conclusions in an immediate and present context (at the date of decision) by observing that the Tribunal cannot be satisfied that the appellant and the sponsor “plan and share social activities” and “present themselves” to others as a couple in a genuine and ongoing relationship.
The issue raised in Particular (g) is that the Tribunal did not ask the appellant or Ms Trieu about the nature of the relationship between the appellant and Ms Trieu’s children. That relationship is not the relevant relationship to which the Tribunal was required to have regard. The Tribunal was required, in considering the nature of the household, to have regard to “any joint responsibility for care and support of children, if any”: reg 1.15A(3)(b)(i). That consideration, however, does not seem to be of substantial relevance or application in circumstances where the children are adult children and do not live with either of the persons.
Nevertheless, as the Tribunal noted, Ms Trieu’s children may have been in a position to comment on the social aspects of the relationship (between the appellant and Ms Trieu) including whether the appellant and Ms Trieu represent themselves to other people as being married (reg 1.15A(3)(c)(i)) and the opinion of the appellant’s and Ms Trieu’s friends and acquaintances about the nature of the relationship (reg 1.15A(3)(c)(ii)). The best evidence of those matters would be evidence from those “other people” and those “friends and acquaintances”. As the Tribunal notes, however, no evidence was provided from Ms Trieu’s children.
Nevertheless, to the extent that the relationship between the appellant and Ms Trieu’s children is relevant to the statutory question, the contention of Particular (g) is that the Tribunal did not ask the appellant or Ms Trieu about these matters. The Tribunal records at para 63 that neither the appellant nor Ms Trieu “mentioned their interaction with [Ms Trieu’s] children until asked specifically about this by the Tribunal” [emphasis added]. The Tribunal also found that both parties “appeared reticent to discuss” Ms Trieu’s children.
The appellant’s contention at Particular (g) has no substance.
As to Particular (h), the Tribunal was “mindful” that the allegations “were anonymous allegations and therefore cannot be tested” (para 71). To the extent that the Tribunal considered the anonymous allegations relevant, it was only so far as they provided contextual background, that is, they explained why the Departmental investigation had been initiated. It was the investigation (not the allegations) which, according to the Tribunal, “identified evidence that casts doubt on the claimed spousal relationship between the [appellant] and the sponsor” (para 71).
The primary Judge was not in error in observing that the mere fact that the allegations were anonymous does not render them irrelevant to the contextual matters to which the Tribunal had regard. In any event, the Tribunal’s reasons do not suggest that the anonymous allegations were a matter upon which the Tribunal relied in making any finding of fact.
Particular (h) does not demonstrate jurisdictional error on the part of the Tribunal.
As to Particular (i), this is presumably a reference to the Tribunal’s comment at para 72 of its reasons that it had “provided the [appellant] with 2 opportunities, at the hearing and in 2 letters inviting comment on information post-hearing, to provide an explanation for … anomalies [in the evidence]”.
If the contention in Particular (i) is that the irrelevant aspect of the Tribunal’s consideration was that it relied on there having been two letters sent, and that by reason of that circumstance it purported to draw a conclusion different in some way to the conclusion which would have been drawn if only one letter had been sent, then that contention has no substance. The Tribunal was merely noting that the appellant had been given what it considered to be a sufficient opportunity to respond to apparent inconsistencies in the evidence. There is no suggestion that the appellant’s response to the first letter was given any less weight by reason of his shorter response to the second letter.
There is no content to Particular (i).
The difficulty with the reasoning of the Tribunal is the failure to have precise regard to the statutory questions asked of it in the discharge of the review function which required the Tribunal to isolate the precise content of the statutory question to be asked and then analyse the particular factual matters relevant to the statutory questions to be answered as at 31 May 2007 and then at the time of the making of the decision. The Tribunal fails to connect its findings as to various circumstances subsisting at the time of its decision to its ultimate finding as to the nature of the appellant’s and Ms Trieu’s relationship almost six years previously at the “time of application”. If the question the Tribunal had asked itself had been whether the appellant and Ms Trieu continued to be in a married relationship at the time of the Tribunal’s decision, then the relevance of much of the material considered by the Tribunal would be clearer. But that was not the question the Tribunal posed (at para 11) or purported to answer (at para 82).

As mentioned earlier, the Minister submitted to this Court that the Tribunal did not consider it necessary to turn its mind to the “time of decision” criteria for a Subclass 820 visa, because the Tribunal was satisfied that the appellant did not meet the “time of application” criteria. This Court cannot say whether, if the Tribunal had examined the “time of decision” criteria, it would have refused the appellant’s visa application on the basis that the appellant and Ms Trieu did not continue to be in a married relationship at the time of the Tribunal’s decision. The Tribunal never asked that question. It applied later evidence to the question to be answered at the earlier date without identifying whether the evidence relevant to the questions to be answered at the later date supported an inference as to matters relevant at the earlier date. Put simply, the Tribunal bundled the questions and factual matters together.
The appeal should be allowed.
Orders 2 and 3 of the orders made by the Federal Circuit Court on 3 December 2013 will be set aside, and in lieu thereof there will be orders that the decision of the Tribunal made on 20 February 2013 be set aside and the matter be remitted to the Tribunal for determination according to law.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.
Associate:
Dated: 3 December 2014

Citation:	Truong v Minister for Immigration and Border Protection [2014] FCA 1312
Appeal from:	Truong v Minister for Immigration & Anor [2013] FCCA 1965
Parties:	DUC THAO TRUONG v MINISTER FOR IMMIGRATION & BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number(s):	VID 1342 of 2013
Judge(s):	GREENWOOD J
Date of judgment:	3 December 2014
Catchwords:	MIGRATION – consideration of an appeal from the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant’s application for a Partner (Temporary) (Class UK), Subclass 820 (Spouse) visa – consideration of the definition of spouse in reg 1.15A of the Migration Regulations 1994 (Cth) – consideration of the criteria for the grant of a subclass 820 visa contained in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) – consideration of the distinction between “time of application” criteria and “time of decision” criteria – where Tribunal failed to distinguish between matters relevant to the “time of application” criteria and matters relevant to the “time of decision criteria”
Legislation:	Migration Act 1956 (Cth), s 31 Migration Regulations 1994 (Cth), regs 1.03; 1.15A; 2.01; 2.03; Sch 1, cl 1214C; Sch 2, cls 300.213, 820.21, 820.211, 820.22, 820.221, 820.222, 820.223, 820.226
Cases cited:	Truong v Minister for Immigration & Anor [2013] FCCA 1965 – cited and quoted Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Full Court of the Federal Court of Australia, 8 May 1990, Northrop, Wilcox and French JJ) – cited
Date of hearing:	4 March 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	111
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Mr D Brown, Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1342 of 2013

JUDGE:	GREENWOOD J
DATE OF ORDER:	3 DECEMBER 2014
WHERE MADE:	MELBOURNE

JUDGE:	GREENWOOD J
DATE:	3 DECEMBER 2014
PLACE:	MELBOURNE