Vuong v Minister for Home Affairs
[2019] FCCA 827
•5 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VUONG v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 827 |
| Catchwords: MIGRATION – Partner visa – applicant marries sponsor following expiry of tourist visa – delegate not satisfied parties are in genuine relationship – Tribunal not satisfied criteria for visa are met – criteria for visa – Tribunal fails to make findings as to specific matters prescribed by regulations – parties’ living arrangements and sharing of responsibility for housework – whether Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether mandatory considerations for evaluation of Tribunal – scope of obligation to consider evidence and claims – where claim reformulated on application for judicial review – applicable principles – application allowed. |
| Legislation: Federal Circuit Court Rules 1999, r.44.12 Migration Act 1958 (Cth), ss.5F, 5J, 31, 65, 109, 348, 368, 474, 476, 498 Migration Regulations 1994 (Cth), regs.1.15A, 2.41, sch.1, pt.1 cl.1124B, pt.2 cl 1214C, Sch.2 cl 801.21, 801.211, 801.22, 801.221, 820.211, 820.221 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Craig v South Australia (1995) 184 CLR 163 He v Minister for Immigration and Border Protection (2017) 255 FCR 41 Li v Minister for Immigration and Citizenship (2008) 102 ALD 354 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 Malhi v Minister for Immigration and Border Protection [2017] FCCA 119 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Angkawijaya [2016] 236 FCR 303 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152[2004] 219 ALR 27 Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 Sun v Minister for Immigration and Border Protection [2017] FCA 1270 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24 Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219 Other materials cited: |
| Applicant: | THOAI DUNG VUONG |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 460 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Bayly |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Ms Campbell |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application for judicial review filed on 30 April 2018, be allowed.
A writ of certiorari be issued quashing the decision of the Administrative Appeals Tribunal made on 7 February 2017.
A writ of mandamus be issued directed to the Administrative Appeals Tribunal requiring it to hear and determine in accordance with law the Applicant’s application for review lodged on 30 August 2015.
The First Respondent pay the Applicant’s costs of this application fixed at $7,238.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 460 of 2017
| THOAI DUNG VUONG |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed 30 April 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 7 February 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application for judicial review should be allowed. I have accepted the applicant’s ground of review that the Tribunal failed to make findings respecting two specific matters prescribed by reg 1.15A(3)(b)(ii)-(iii) of the Migration Regulations 1994 (Cth) (Regulations). The failure to make those findings meant that the Tribunal’s decision was vitiated by jurisdictional error. I have rejected the applicant’s other grounds of review that irrelevant considerations were taken into account or that the Tribunal failed to consider other matters which are now relied upon.
Background
The applicant, a female Singaporean citizen aged 41 years, first arrived in Australia on 20 December 2013 on a subclass 601 tourist visa which was valid until 16 March 2014. During that time, the applicant met Dang Quang Nguyen (sponsor). The applicant subsequently returned to Australia on 19 April 2014, whereupon she commenced living with the sponsor. The applicant and sponsor were married on 7 July 2014.
On 8 July 2014, the applicant made a valid application for a Partner visa on the basis of her marriage to the sponsor. The application attached a copy of the applicant’s Singaporean divorce order, her current marriage certificate and the death certificate of the sponsor’s previous wife.
On 16 June 2015, the applicant’s registered migration agent provided the Department with a number of documents, including a National Police Certificate, bank statements from the applicant and sponsor’s joint account, the sponsor’s Centrelink Income Statement, and an album of photographs of the applicant and sponsor engaging in social activities.
On 15 July 2015, the Department wrote to the applicant requesting more information, specifically relationship history statements and evidence of her relationship with the sponsor.
On 1 August 2015, the applicant’s registered migration agent provided the Department with a statement of relationship signed by both the applicant and sponsor. Their statement outlined how they had met, their current living circumstances and their future plans.
On 20 August 2015, a delegate of the Minister refused the application, not being satisfied that the applicant was the spouse of the sponsor.
On 30 August 2015, the applicant lodged an application with the Tribunal for review of the delegate’s decision.
On 25 October 2016, the Tribunal invited the applicant to attend a hearing on 28 November 2016 to give evidence and present arguments relating to the issues arising on the decision under review.
On 23 November 2016, the applicant’s representative provided the Tribunal with a bundle of documents, including a chronology of the applicant and sponsor’s relationship, a number of statutory declarations from friends attesting to their relationship, utility accounts, bank statements and a quantity of photographs (including wedding photos).
On 28 November 2016, the applicant appeared before the Tribunal with her niece, the sponsor and her representative. The hearing commenced at 10.42am and concluded at 2.03pm. The hearing was adjourned, part heard, to 13 December 2016, when evidence from the applicant’s niece was heard over the course of an hour.
On 12 December 2016, the applicant’s representative provided the Tribunal with written submissions addressing concerns which had been expressed by the Tribunal during the first hearing relating to certain bank account deposits and withdrawals said to be associated with the sponsor’s winnings from gambling on Poker machines.
On 8 February 2017, the Tribunal notified the applicant of its decision. In a written statement of reasons (Reasons) dated 7 February 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a Partner visa.
Tribunal’s decision
The Tribunal identified the issue arising on the decision under review as being whether the applicant and her sponsor were in a genuine and continuing spousal relationship: [7], [12]. It identified the relevant requirements under cll 820.211 and 820.221 of Sched 2 to the Regulations and the definition of ‘Spouse’ provided by s 5F of the Act, recognising that the Tribunal was required to have regard to all of the circumstances of the relationship when forming an opinion whether one or more of the conditions prescribed by pars 5F(2)(a)-(d) existed. Attached to the Reasons was a copy of Reg 1.15A.
The Tribunal was satisfied that the applicant and sponsor were validly married in Melbourne on 7 July 2014 and so met the requirements of s 5F(2)(a) of the Act: [10]. However, it expressed serious concern respecting the credibility of the applicant and her sponsor and the evidence which they had given: [13]-[14]. By way of overview, the Reasons considered the following aspects of the parties’ relationship:
a)Financial aspects: [15]-[21]. The Tribunal found that the parties’ financial activities were consistent with a joint financial relationship and attached some weight to that conclusion: [21];
b)Nature of household: [22]-[32]. The Tribunal placed less weight on this consideration. It expressed concerns as to the circumstances in which the applicant had separated from her former husband in Singapore, and found that her evidence had been vague and appeared to be obfuscatory;
c)Social aspects of the relationship: [33]-[36]. The Tribunal placed only some weight on this consideration by reason that statutory declarations submitted in evidence were generally worded and the photographs were of a generic nature; and
d)Nature of parties’ commitment to one another: [37]-[74]. The Tribunal dedicated much attention to this topic. It was not satisfied that since 2014, the parties had a genuine continuous mutual commitment to one another as husband and wife to the exclusion of all others. Nor was it satisfied that they did not live separately and apart on a permanent basis.
In its consideration of the nature of the parties’ relationship, the Tribunal attached significant weight to an aspect of the sponsor’s constant withdrawal of a precise sum of $202.50 from an ATM at the Baker’s Arms Hotel in Abbotsford: [42]-[46]. Contextually, but by way of example only, the sponsor was shown to have withdrawn that sum on 19 occasions within a 6 week period and in circumstances where the sponsor was in receipt of government benefits of ~$700 per fortnight: [15], [46]. Relevantly, the applicant’s oral evidence was that she had not known of the sponsor’s withdrawal of these funds until the hearing: [48], [55]. The Tribunal considered the applicant’s ignorance of the sponsor’s conduct to be inconsistent with the couple sharing a genuine and continuing spousal relationship; this being compounded by the sizeable winnings which the sponsor had apparently achieved from his poker machine activities in a 12 day period in July 2016: [49]-[57].
The Tribunal was also concerned about the parties’ evidence about their discussions about marriage. The sponsor could not recall whether their first conversation about marriage was face-to-face or whether it was in Australia or Singapore. Whilst the Tribunal accepted that the sponsor may have suffered some brain injuries or forgetfulness, it was concerned about the sponsor’s inconsistent answers. When the applicant was questioned about the sponsor’s health, she stated that the sponsor had schizophrenia but could not identify how it manifested itself in more ways than forgetfulness. The Tribunal stated that a person in a genuine and continuing spousal relationship would be expected to properly identify an important syndrome such as schizophrenia.
The Tribunal did not ignore the photographs of the parties in social situations. However, the Tribunal did not consider that the photographs were conclusive of the parties’ relationship. It found that they were of a generic nature and did not accept they showed the parties as representing themselves to other people as being married to each other: [35]. The Tribunal was evidently concerned as to the plausibility of the applicant’s explanation why the parties’ wedding photos had been taken some years after that marriage had occurred.
The Tribunal found that the applicant did not meet the criteria in cll 820.211 and 820.221 of Sched 2 to the Regulations and affirmed the delegate’s decision not to grant the visa: [74]-[79]. The impugned aspects of the Tribunal’s Reasons are addressed in further detail below.
Procedural history
On 8 March 2017, the applicant commenced this proceeding seeking judicial review of the Tribunal’s decision.
As the application was bereft of particularised grounds, the Minister’s Response sought that the application be dismissed with costs.
Orders were made during 2017-2018 regulating the conduct of the matter including that it be set down for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 1999.
As the applicant did not file submissions in accordance with those orders, the Minister filed submissions which were responsive to the application and seeking summary dismissal of the proceeding.
On 30 April 2018, the applicant filed an amended application together with submissions which advanced substantive grounds of review and the bases on which it was contended that those grounds were made out.
In turn, the Minister filed further submissions and the parties agreed in consent orders whereby the show cause hearing was dispensed with and the matter was listed for final hearing.
By her amended application, the applicant contended that the Tribunal had made jurisdictional errors, by reason of which it was claimed that it’s decision was not a ‘privative clause decision’ within the meaning of s 474(2) of the Act such that it was amenable to the relief claimed.
Judicial Review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[6] The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of a Partner visa are satisfied.
[5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[6] Act, s 65(1)(a).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[7]
[7]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Partner visas
The Regulations may prescribe criteria for the grant of a visa and that a visa of a specified class may only be granted in specified circumstances.[8] The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable Regulations under the Act.[9] Part 1 of Sched 1 of the Regulations concerns the subject, Permanent visas. Within Part 1, cl 1124B identifies the manner in which an application for a permanent Partner (Residence) (Class BS) visa may be made. Part 2 of Sched 1 concerns the subject, Temporary visas. Within Part 2, cl 1214C identifies the manner in which an application for a Partner (Temporary) (Class UK) may be made.
[8] Act, sub-s 31(3), 40(1).
[9] Act, s 498.
The primary criteria prescribed for a Partner visa are located in Sched 2, Subclass 801. Clause 801.21 identifies the criteria for a Partner visa which are to be satisfied at the time of application. Relevantly, sub-cl 801.211(1)(b) prescribes that an applicant must meet the requirements of sub-cll (2), (5), (6), (7), (8) or (9). In particular, sub-cl 801.211(2) prescribes criteria that a person must meet to satisfy the requirements of that sub-clause, including that they were the spouse of a person who was an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Clause 801.22 identifies the criteria for a Partner visa which are to be satisfied at the time of decision. Clause 801.221 prescribes that the criteria to be satisfied at the time of decision including that, in relation to an applicant who satisfied sub-cl 801.211(2), they continued to meet the requirements of that provision.[10]
[10] Regulations, Sched 2, para 801.221(1)(a).
The term spouse is defined by s 5F which relevantly provides that for the purposes of the Act, a person is the spouse of another person if, under sub-s 5F(2), the two persons are in a married relationship.[11] Sub-section 5F(2) provides:
[11] Act, sub-s 5F(1).
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
The Regulations may make provision in relation to the determination of whether one or more of the conditions in pars 5F(2)(a)-(d) exist and may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.[12]
[12] Act, sub-s 5F(3).
Regulation 1.15A, which was made under s 5F(3), reads:
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(1) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Textually, the structure of reg 1.15A(3) is arranged by reference to the four principal matters prescribed by sub-par (a)-(d) and the fifteen specific matters enumerated in the Roman numerals beneath them.
The requirements of each of sub-s 5F(3) and reg 1.15A(2)-(3) are expressed cumulatively and in imperative terms. For the purposes of satisfying the criterion in sub-cl 801.211(2) of Sched 2 that an applicant falls within the definition of spouse in s 5F, the determination whether parties are in a married relationship requires that the decision-maker consider all of the circumstances of the relationship, including the matters set out in sub-reg 1.15A(3).
An administrative decision may be vitiated by legal error where a decision-maker fails to take into account a mandatory relevant consideration [13] Whether the matters addressed by reg 1.15A(3) are mandatory considerations is to be determined by reference to the subject matter, scope and purpose of the relevant legislation. In Lo v Chief Commissioner of State Revenue,[14] Basten JA, (with whom Beazley P agreed) said:[15]
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd[16] it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Macfarlan JA, (with whom Beazley P also agreed) said:[17]
. . . in judicial review proceedings the omission of a decision-maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko[18]; Project Blue Sky v Australian Broadcasting Authority[19]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision-maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision-maker will have erred in law in expressly or impliedly misconstruing the statute.
[13]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[14](2013) 85 NSWLR 86.
[15](2013) 85 NSWLR 86, [9].
[17](2013) 85 NSWLR 86, [50].
[18][1986] HCA 40; 162 CLR 24 at 39-40.
The Act distinguishes the basis on which a Partner visa application is to be considered by an administrative decision-maker from that by which a Protection visa is to be assessed. In the latter case, it is the evidence of the applicant which will define the precise claim and basis on which protection is being sought.[20] Contrastingly, in the consideration of an application for review of a decision to refuse a Partner visa application, sub-s 5F(2), reg 1.15A(2)-(3) and cl 801.221 collectively supply the framework of relevant considerations within which a decision-maker is to assess the claims which are made by the applicant.[21] That is because the decision-maker is obliged to proceed by reference to prescribed statutory criteria.[22] By extension, in the review of a Partner visa application, the mandatory relevant considerations which a decision-maker is obliged to consider are those prescribed by sub-s 5F(2) of the Act and reg 1.15A(2)-(3) as distinct from the pieces of evidence or the claims being advanced by an applicant.[23]
[20]Eg, race, religion, nationality, membership of particular social group or political opinion: Act, s 5J(1).
[21]Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [39]-[40] (Reeves J).
[22]Li v Minister for Immigration and Citizenship (2008) 102 ALD 354, [22]-[23] (Jessup J); Sun, supra [2017] FCA 1270, [56]-[57] (Reeves J).
[23] Sun, supra [2017] FCA 1270, [57]-[58] (Reeves J).
In Sun v Minister for Immigration and Border Protection,[24] Reeves J stated a number of principles which applied to the scope of the obligation respecting the considerations relevant to a Partner visa and did so in the context of decision-maker’s evaluation of the matters prescribed by reg 1.15A(3). Those principles were stated[25] by his Honour to be as follows:
a)the requirement to consider, or have regard to, such considerations requires a decision-maker to give “proper, genuine and realistic” consideration to them;
b)a court reviewing a decision to ascertain whether the decision-maker has complied with this obligation has no jurisdiction to engage in impermissible merits review;
c)the importance of a particular matter will affect the nature and extent of the consideration which it attracts;
d)thus, a matter of fundamental importance to the decision-making process requires closer consideration than one of lesser importance;
e)the question whether the decision-maker has complied with their obligation in this regard is a question of “fact and degree”; and
f)it is well-established that any review of a decision-maker’s reasons for a decision should not to be undertaken “with an eye keenly attuned to the perception of error.”
[24] [2017] FCA 1270, [41]-[42].
[25] [2017] FCA 1270, [41] (citations omitted).
In expressing those principles, Reeves J drew support from the Full Court’s statement in relation to the treatment to be applied to the 10 criteria prescribed by reg 2.41 for the purposes of s 109 of the Act in Minister for Immigration and Citizenship v Khadgi that:[26]
It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
[26] (2010) 274 ALR 438, [62] (Stone, Foster and Nicholas JJ).
It is also relevant to reconcile the approach to be taken in the assessment of an alleged failure to give consideration to a relevant consideration and how such failure may be properly inferred in cases where a decision-maker is obliged to proceed, as here, upon statutorily prescribed criteria. In Sun, Reeves J considered[27] that the word ‘all’ appearing in reg 1.15A(2) did not require the Tribunal to identify each and every circumstance of the relationship but required it:
. . . to identify those circumstances that are germane to its task of determining whether the relationship in question is a married relationship, as defined in s 5F(2) of the Act. In other words, as was held in Khadgi, it requires the Tribunal to identify those circumstances of the married relationship raised by the application at hand that are of “central or fundamental importance” so that those circumstances can receive close attention. . . as the Court said in Khadgi, while the Tribunal will be required to turn its mind to each and every one of the matters prescribed in that list, it is not required to treat all of those matters as being of central or fundamental importance in every matter before it.
[27] [2017] FCA 1270, [60]; and see at [41].
The process of inferential reasoning which was open to be taken on judicial review was also considered by Reeves J in Sun who stated the following principles:[28]
a)a decision-maker is required to comply with s 368 of the Act and must prepare a written statement that, relevantly, sets out its “findings on any material questions of fact”.[29] The decision-maker is not obliged to make findings “on any and every matter of fact objectively material to the decision which it was required to make”. Rather, s 368 requires “no more than that the Tribunal set out the findings which it did make” and to set out the findings on the questions of fact which “it considered to be material to the decision which it made and to the reasons it had for reaching that decision”;
b)a court conducting judicial review of a Tribunal’s decision may infer that any matter not mentioned in its Reasons was not considered by it to be material. Thus, a failure to mention a matter may, in turn, reveal jurisdictional error and, if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account;
c)however, this inference is not to be drawn lightly and is a matter upon which an applicant bears the onus. To discharge that onus, the applicant needs to do more than “point to material capable of supporting [the] inference” and instead needs to demonstrate that “having regard to all of the evidence and other material before the Court it would be appropriate to draw [the] inference.”
[28] [2017] FCA 1270, [43]-[46] (citations omitted).
[29] Act, s 368(1)(c).
Reeves J concluded that:[30]
When a Court is determining whether to draw such an inference, it will usually be required to undertake “a close analysis of the decision-maker’s reasons without the benefit of other evidence”. In conducting that analysis, it will be necessary to bear in mind that a decision-maker does not need to refer to, or comment on, each criterion that must be considered, nor conduct a “line by line refutation” of the evidence, and the weight to be given to any particular criterion, or group of criteria, is entirely a matter for him or her. Conversely, the fact that a decision-maker states in his or her reasons that a particular criterion has been taken into account is not conclusive of that issue.
[30] [207] FCA 1270, [46] (citations omitted).
The text of reg 1.15A(2) makes clear that the decision-maker is bound to consider all of the circumstances of the parties’ relationship including the matters in sub-reg 1.15A(3). It is settled that the matters in sub-reg 1.15A(3) are not exhaustive and that the decision-maker must consider all of the relevant circumstances.[31] The importance of doing so was identified in Li v Minister for Immigration and Citizenship[32] where Jessup J held that because reg 1.15A(3) contained an imperative command to consider all the circumstances of the case, this carried an unavoidable obligation to identify what those circumstances were. In turn, his Honour characterised the failure in that case to identify such circumstances as being more fundamental than a failure to consider relevant considerations as the Tribunal had failed to:
. . . make the findings of fact required to discharge its obligation under reg 1.15A to have regard to all of the circumstances of the relationship.
Jessup J’s reasoning was endorsed and followed by Reeves J in Sun.[33]
[31]cf Minister for Immigration and Border Protection v Angkawijaya [2016] 236 FCR 303, 317, [51], [53] (Allsop CJ, Kenny and Griffiths JJ); see also He, supra at [52], [59], [73], [77]; Sun, supra, [2017] FCA 1270, [39]-[40] (Reeves J).
[32] (2008) 102 ALD 354, [24]-[28].
[33] [2017] FCA 1270, [47]-[54], [61].
The proper construction of reg 1.15A was considered by the Full Court in He v Minister for Immigration and Border Protection.[34] As Reeves J delivered judgment in Sun following argument in He, the Full Court invited submissions on Sun before delivering its judgment.[35]
[34] (2017) 255 FCR 41.
[35] (2017) 255 FCR 41, [35].
In He, Siopsis, Kerr and Rangiah JJ held[36] that an administrative decision-maker was obliged to consider “each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3) and any other relevant circumstances of the relationship.” Their Honours further held that it was necessary to identify and consider the relevant circumstances of the parties’ relationship.
[36] (2017) 255 FCR 41, [50].
The Full Court rejected[37] a submission that the decision-maker was not required to separately evaluate each of the fifteen specific circumstances referred to in reg 1.15A(3). Their Honours considered that the question posed in that appeal was the scope of the Tribunal’s obligation to make findings in respect of those matters and held that it was obliged to make findings upon each of the prescribed matters numbered with Roman numerals of sub-par 1.15A(a)-(d).[38] The Full Court held[39] that as a matter of statutory construction, the content of the obligation was to ‘consider’ the matters in that regulation. The decision-maker was therefore obliged to address each of the prescribed matters and to give them active, proper, genuine and realistic consideration:
The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter (citations omitted).
[37] (2017) 255 FCR 41, [67].
[38] (2017) 255 FCR 41, [68], [76].
[39] (2017) 255 FCR 41, [70], [76].
The Full Court further held that a decision-maker was also obliged to make findings upon each of the four principal matters addressed by sub-para’s 1.15A(3)(a)-(d) respectively.[40] In this context, their Honours recognised[41] that where a Tribunal’s Reasons contained no reference to a matter, this may support an inference that it had not been considered.[42]
[40] (2017) 255 FCR 41, [80].
[41] (2017) 255 FCR 41, [79].
[42]Cf Sun, supra [2017] FCA 1270, [43] (Reeves J); citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [69].
However, the reasoning in He makes clear that the decision-maker might properly consider that a particular matter was not relevant or that there was no evidence on which a particular finding could be made. Further, the Full Court did not accept that the Tribunal was required to make a finding as to the existence or otherwise of every potentially relevant circumstance, but only required the Tribunal to make any necessary findings of fact.[43] The content of the obligation to make necessary findings of fact is then informed by the imperative terms in which reg 1.15A(2)-(3) are expressed.
[43](2017) 255 FCR 41, [71] (emphasis in original).
The reasoning in He was generally approved by the Full Court in Williams v IS Industry Fund Pty Ltd,[44] and followed by White J in Nguyen v Minister for Immigration and Border Protection.[45] His Honour endorsed the statement that, when undertaking an assessment of the matters prescribed by reg 1.15A(3), an administrative decision-maker was bound to consider them in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd.[46]
[44] [2018] FCAFC 219, [23]-[28] (Alsop CJ, Reeves and Derrington JJ).
[45] [2018] FCA 1374, [47].
[46] (1986) 162 CLR 24, 39-40 (Mason J, Gibbs CJ, Deane, Dawson agreeing generally).
It follows that each of the four principal and fifteen specific matters prescribed by reg 1.15A(3) are mandatory relevant considerations which a decision-maker is bound to take into account when evaluating a Partner visa application in the manner described above at [38]-[40].
Having regard to the imperative language of reg 1.15A(2), a failure to consider each of the principal and specific matters in reg 1.15A(3) would constitute error which may be characterised as jurisdictional in nature. By extension, it is necessary but not sufficient, that the decision-maker refer in broad terms to the subject matter posed by reg 1.15A(a)-(d) unless findings of fact are made, to the extent necessary, upon each of those principal subjects and each of the specific matters prescribed by reg 1.15A(3). The absence of any reference to evidence relevant to such matters may indicate that it was not taken into account.
Upon the principles examined above, I accept the applicant’s submission that where, for example, an applicant claims that he or she shares a home with their partner,[47] or intends to have a child with that partner,[48] the decision-maker does not perform its obligation according to law where it makes no finding as to that claim, but merely expresses doubt as to the credibility of the applicant’s evidence.[49] To adopt such an approach is to fall short of the command expressed in s 5F(2) and reg 1.15A(2)-(3) which require consideration and findings in relation to each of those circumstances. I accept that this is so because those are matters which are expressly prescribed by reg 1.15A(3). Such matters are to be distinguished from matters of evidence which, although potentially relevant as part of all of the circumstances of the parties’ relationship, are not matters expressly prescribed by reg 1.15A. In the latter case, it will be a separate question whether the matter relied upon by the applicant is of such fundamental or sufficient significance that it is one that ought to have been considered.
[47] Reg, 1.15A(3)(b)(ii).
[48] Reg, 1.15A(3)(b)(i).
[49]Li v Minister for Immigration and Border Protection (2008) 102 ALD 354, [24]-[25] (Jessup J), which considered an earlier form of reg 1.15A; Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [58]-[61] (Reeves J).
I also accept the applicant’s submission that a Tribunal’s consideration of the mandatory considerations prescribed by reg 1.15A need to be evaluated in the broader context of the discharge of its task of review, which requires it to form for itself, on the material before it, the requisite state of satisfaction under s 65 whether the criteria for the grant or refusal of a Partner visa have been satisfied.[50] I further accept that this requires a consciousness of the submissions, evidence and material advanced by the visa applicant.[51]
[50] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [32].
[51] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [38].
To the extent that the Minister’s oral submissions pressed that it was not necessary for the Tribunal to make findings upon each of the fifteen specific matters addressed by reg 1.15A(3), I reject that submission.
Three grounds of review were advanced by the amended application.
Ground 1 – failure to make findings
Ground 1, as amended, reads:
The Tribunal erred in law by failing to complete or perform the statutory task required of it under reg 1.15A(3)(b) of the Migration Regulations 1994 (Cth) (the Regulations).
Particulars
(a) The Tribunal failed to make findings of fact in respect of:
(i) the living arrangements of the applicant and her sponsor; and/or
(ii) the sharing of the responsibility of the housework by the applicant and her sponsor.
Ground 1 stemmed from the Tribunal’s treatment of the subject, Nature of Household, being the subject addressed by sub-par 1.15A(3)(b).
The applicant’s fundamental complaint was that, in its evaluation of the parties’ living arrangements and any sharing of responsibility for house work, the Tribunal failed to deal with the specific matters which required consideration under sub-par 1.15A(3)(b)(ii) and (iii).[52]
[52]The applicant expressly accepted that the Tribunal had made a finding in relation to the matters addressed by sub-par 1.15A(3)(b)(i); the question of joint responsibility for the care and support of the sponsor’s son. The Tribunal stated that “I find that the parties are supportive of the sponsor’s son and note the applicant’s submissions give reference to the sponsor’s son”: see Reasons at [23].
The applicant submitted that the Tribunal could have found that specific matters were of no relevance to the application, or that the evidence did not permit any finding to be made or that it had made a particular finding (whether in support of or adverse to the application).
However, the applicant submitted that the Reasons at [22]-[32] exposed an erroneous consideration of those matters because the Tribunal had failed to make findings respecting the specific matters prescribed by sub-par 1.15A(3)(b)(ii) and (iii), or had dismissed those considerations as being matters which were inconsequential and so did not warrant an affirmative finding.
The Minister, by reference to the principles in He, submitted that an inference could be drawn, despite the absence of express references in the Reasons to some of the matters enumerated in sub-par 1.15A(3)(b), that the Tribunal had considered and made findings respecting those matters. It was further submitted, correctly, that the Reasons were to be read fairly and as a whole and that nothing in He undermined the settled principle that it was a matter for the Tribunal to determine what weight was to be applied to any particular evidence, submission or consideration. Upon those principles, it was submitted that it was open for the Tribunal to conclude that it placed lesser weight upon the nature of the applicant and sponsor’s household as a consideration in its evaluation of whether the parties were in a married relationship: Reasons, [32].
I accept that the Tribunal failed to make findings respecting the specific matters addressed by sub-pars 1.15A(3)(b)(ii)-(iii). While the Tribunal stated that it had considered the question of shared responsibility for housework and acknowledged that the parties were able to describe their living arrangements, the Tribunal merely expressed concerns in relation to aspects of the evidence and concluded that a range of matters undermined the applicant’s credibility: Reasons at [22]-[32]. In addressing the parties’ evidence, the Tribunal expressed its views that some had only limited value, or that concerns were held about other matters. The Tribunal described some evidence as vague and unclear, and in one instance considered that the applicant had tried to obfuscate. This led the Tribunal to a conclusion that it placed ‘lesser weight’ upon the nature of the parties’ household as a consideration to be evaluated.
The train of reasoning adopted by the Tribunal did not in my opinion include any findings in relation to the parties’ living arrangements or sharing of responsibility for housework. The Tribunal’s expressed conclusion that it placed lesser weight upon the nature of the parties’ household as a consideration was not a finding made in relation to the specific matters prescribed by reg 1.15A(3)(b)(ii) or (iii). Nor did the Tribunal find that those specific matters were of no relevance to the application, or that the available evidence did not permit for any finding to be made. Having regard to the matters addressed in the Reasons at [22]-[32], it would not have been open to make findings of either kind. There was evidence bearing upon these specific matters, however, no findings were made. I have reflected upon whether the Reasons may be said to contain implicit findings respecting the questions of the parties’ living arrangements and any sharing of responsibility for housework or whether any such findings may be inferred.[53] However, in my opinion it is not possible, even on a fair reading of the Reasons as a whole, to conclude that the Tribunal made findings upon those matters.
[53] He, supra (2017) 255 FCR 41, [82].
I conclude the Tribunal did not make findings respecting the parties’ living arrangements and any sharing of responsibility for house work, being two of the specific matters in relation to which it was required to make findings. I consider that the Tribunal’s error in failing to make findings in relation to these matters were errors which were jurisdictional in nature. Ground 1 is upheld.
Ground 2 – irrelevant considerations
Ground 2, as amended, reads:
The Tribunal took into account an irrelevant consideration, being the lack of evidence as to the circumstances under which the applicant’s previous relationship ended.
Ground 2 also focussed upon the Tribunal’s treatment of the subject, Nature of Household, but turned on the matters addressed in the Reasons at [26]-[29] where it examined the applicant’s evidence relating to her earlier separation and divorce in Singapore. There, the Tribunal considered the applicant’s oral evidence to be vague and unclear as to the circumstances of such separation, and that a better recall of such significant events should be expected. The Tribunal stated that it was very unclear as to when the applicant’s former husband had begun a new life with his new partner and when he had left the applicant’s dwelling in Singapore. The Tribunal concluded that the applicant appeared to be obfuscating upon these matters, and that this in turn raised concerns as to her claim to have established a household with her sponsor.
The applicant submitted that the Tribunal had treated the ending of the applicant’s earlier marriage as a matter which was relevant to the question of whether the applicant and her sponsor were in a married relationship when this did not form a part of, and was extraneous to, the circumstances of their relationship. This was said to be an irrelevant consideration. It was further submitted that the Tribunal’s concern with the absence of evidence as to the ending of the applicant’s earlier marriage was equally irrelevant and that in taking this matter into account, the Tribunal had committed jurisdictional error. In making those submissions, the applicant accepted that, had the ending of the applicant’s earlier marriage been a live issue before the Tribunal, the position may have been different. However, it was submitted that the issue had not been raised on the evidence and that the Reasons did not indicate that it considered the issue to be relevant to the applicant’s claim.
The applicant submitted that the structure of reg 1.15A(3) was such that the matters enumerated in paras (a)-(d) and the 15 matters addressed by the Roman numerals beneath them supported a conclusion that the regulation should be construed ejusdem generis. In my opinion, this submission failed to recognise or attach weight to the fact that reg 1.15A(2)-(3) and the authorities considered above expressly require that consideration be given to all relevant circumstances. Having regard to its structure, I consider that reg 1.15A reflects an intention that its general words are not to be limited in the manner suggested.[54]
[54] Pearce & Geddes, Statutory Interpretation in Australia 8th Ed (2014), [4.29].
While the applicant relied upon Malhi v Minister for Immigration and Border Protection[55] as authority for the proposition that the Tribunal was required to consider whether the parties were in a married relationship at the time of the decision and that the focus of the inquiry was upon the genuineness of their relationship, the court held that the conduct or motive of a party at the commencement of the relationship could not be determinative of whether the relationship was genuine and continuing at the time of the decision. Malhi, which does not appear to have been considered since, did not hold that a parties’ earlier relationship was of no relevance to issues concerning the nature of the parties’ relationship. In circumstances where the Tribunal found the applicant’s evidence to be vague and unclear on this issue, it was entitled to conclude[56] that it attached lesser weight to this consideration. The fact of the end of the earlier relationship was not an irrelevant consideration.
[55][2017] FCCA 119, [36], [57]-[58] (Jones J).
[56] Reasons, [26], [29], [32].
To adapt the reasoning of Jessup J in Li,[57] it would have entailed a fundamental error on the part of the Tribunal to have not considered what the circumstances were in which the applicant and her spouse came to be their relationship. Just as the Tribunal was entitled to determine the weight that it attached to any particular evidence, in my opinion, it was also entitled to take into account the fact that the applicant had previously been married and that her evidence had been vague and unclear as to the date on which that earlier relationship had ended. Such evidence addressed subject matter which it was legitimate for the Tribunal to consider when evaluating the parties’ relationship and its duration: cf reg 1.15A(3)(d). So long as the Tribunal retained focus upon its obligation to consider the matter as at the time of its decision, it was also entitled to have regard to other relevant considerations: Minister for Immigration and Border Protection Angkawijawya.[58] Here, the Tribunal recognised that it was obliged to consider the matter at the time of decision: Reasons, [8]. Contrary to the applicant’s submissions, the fact of the applicant’s separation from her former spouse in Singapore was a live issue in the proceeding.
[57] Li, supra (2008) 102 ALD 354, [24]-[28]; cf Sun, supra [2017] FCA 1270, [52]-[53].
[58] [2016] 236 FCR 303, [63]-[64] (Kenny and Griffiths JJ, Allsop CJ agreeing).
I accept the Minister’s submission that by Ground 2 the applicant sought to place an impermissible constraint upon the scope of the Tribunal’s consideration of all of the circumstances of the parties’ relationship as that expression was employed in reg 1.15A(2). Having regard to the authorities considered above, it is clear that the matters prescribed by reg 1.15A(3) are non-exhaustive and that other circumstances may be relevant in a particular case when considering whether an applicant and his or her spouse were in marital relationship.
The evidence before the Tribunal included that the applicant had divorced her former husband in Singapore. This became a part of the factual matrix which it was legitimate for the Tribunal to have considered in evaluating whether the parties were in a marital relationship.
Ground 2 is rejected.
Ground 3 – relevant considerations
Ground 3, as amended, reads:
The Tribunal erred in law by failing to perform the review required by s 348 of the Act.
Particulars
(a) The Tribunal failed to consider evidence that the applicant and her sponsor travelled to Vietnam and lived together there for approximately two months in late 2014 and early 2015.
(b) The Tribunal failed to consider evidence that the applicant was physically present at the same address as her sponsor when she was taken to hospital by ambulance on 25 October 2014.
Ground 3 concerned the Tribunal’s failure to consider evidence which was said to be relevant to the Nature of the parties’ household, social aspects of the relationship and the Nature of the parties’ commitment, being the subjects addressed by sub-par 1.15A(3)(b), (c) and (d).
By s 348 of the Act, the Tribunal was obliged to conduct a review of the delegate’s decision. The applicant submitted it to be uncontroversial that that the Tribunal was obliged to consider the claim which was made by the applicant, give consideration to significant and probative evidence and that a failure to do so may be indicative of jurisdictional error.[59] However, the qualified nature of the principle is not unimportant.
[59]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [39], [41]-[45], [50], [62]; MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497, [39] (Young J).
It is not incumbent upon a Tribunal to refer to mention every piece of evidence which is before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[60] Rather, it is only when a significant piece of evidence is not referred to that a finding of constructive failure to exercise jurisdiction may be open: Minister for Immigration and Citizenship v SZRKT.[61]
[60] (2003) 236 FCR 593, [46] (French, Sackville and Hely JJ).
[61] (2013) 212 FCR 99, [112].
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs,[62] the Full Court also expressed the principle in negative terms, stating that a Tribunal:
. . . is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.
See also Tuitaalili v Minister for Immigration and Citizenship.[63]
[62] (2006) 228 CLR 152, [35] (the Court).
[63] [2012] FCAFC 24, [24]-[26] (Flick, Jagot and Barker JJ).
The ambit of the Tribunal’s core function of review was explored in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs[64] by Selway J who considered that the ultimate question was whether the case put by an applicant had been sufficiently raised as a relevant issue such that the Tribunal ought to have dealt with it. His Honour recognised that the function of both the delegate and the Tribunal was to respond to the case being advanced by the applicant and that neither was obliged to consider claims that had not been made.[65] Selway J accepted that the inquisitorial nature of the Tribunal’s role did not mean that it was to conduct its merits review as though deciding issues upon a nineteenth century pleading, but that it was obliged to deal with the case raised by the material and the evidence before it.
[64] (2003) 199 ALR 364, [18].
[65](2003) 199 ALR 364, [17], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, [78] (Kirby J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] FCA 1801, [49] (Full Court).
In Minister for Immigration and Citizenship v SZRKT,[66] Robertson J held that whether a Tribunal was obliged to consider a document or other evidence would depend upon: (1) the cogency of the evidentiary material and; (2) the place of that material in the assessment of the applicant’s claims. Accordingly, it is not correct that a failure to refer to relevant evidence will always constitute jurisdictional error.[67]
[66] (2013) 212 FCR 99, [112].
[67] (2013) 212 FCR 99, [122].
Relatedly, in MZZUT v Minister for Immigration and Border Protection,[68] Middleton J considered that the fact a party had legal representation at the time of lodgement of an application and when submissions were filed was of some (non-determinative) significance in the way that a Tribunal ought be expected to conduct the hearing and the way in which it would read and approach an applicant’s submissions. This reasoning was endorsed in MZZQY v Minister for Immigration and Border Protection[69] as being equally applicable where a party had been represented by a migration agent at the relevant times.
[68] [2015] FCA 141, [18].
[69] [2015] FCA 883, [27] (Beach J).
Further, as the proceedings before a Tribunal are inquisitorial, a Tribunal is not saddled with the role of contradictor: “It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her [claim . . .]. The Tribunal must then decide whether that claim is made out.”[70] It follows that “it was for the [applicant] to put whatever evidence of argument [she] wished to the decision maker to enable her to reach the requisite state of satisfaction.”[71] As noted, sub-s 5F(2), reg 1.15A(2)-(3) and cl 801.221 supply the framework of relevant considerations within which a decision-maker is to assess the claims which are made by the applicant for a Partner visa. Although those provisions supply that framework, it remains for the applicant to adduce evidence and make submissions in support of the Partner visa application. It is not for the Tribunal to do so.
[70] Abebe v The Commonwealth (1999) 197 CLR 510, [187] (Gummow and Hayne JJ).
[71]Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, [76] (Heerey, Conti and Jacobson JJ).
It was submitted that the Tribunal had failed to advert to two pieces of evidence, or that it had adverted to that evidence inadequately.
First, the applicant submitted that a chronology had been submitted to the Tribunal which recorded the travel undertaken by the applicant and sponsor in Vietnam five months after their marriage. This chronology indicated that such travel had been undertaken by them from 6 December 2014 – 23 January 2015, during which period they had attended a joint family gathering. In relation to this issue, the sponsor’s mother had also made a witness statement. In that brief statement, his mother stated that the families of both the applicant and her sponsor had attended the joint family gathering. The applicant submitted that these pieces of evidence were relevant to a number of issues arising under reg 1.15A(3)(b)-(d). This evidence was said to be relevant to the continuing nature and the social aspects of the parties’ relationship. In short, it was said that these items of evidence, which related to events occurring shortly after the parties’ marriage, were probative of those issues. While the applicant accepted that the Tribunal had no obligation to refer to every item of evidence which was tendered before it, it was submitted that the more important the evidence to the issues before it, the more glaring the effect of the Tribunal’s failure to refer to that evidence was.
The second piece of evidence was an invoice from Ambulance Victoria which indicated that the applicant had been conveyed from the sponsor’s home by ambulance to a hospital. While the Tribunal referred to this evidence in the context of the parties’ shared financial arrangements, the applicant complained that the treatment of the evidence in this manner demonstrated a failure to appreciate that it was also relevant to the fact that the applicant shared the same residential address as her sponsor and was therefore relevant to the issues arising under reg 1.15A(3)(b)(ii). Again, it was submitted that while the Reasons at [19] gave some reference to the ambulance issue as bearing upon the nature of the parties’ shared financial arrangements, the brevity of the treatment of that evidence supported a conclusion that the Tribunal had failed to attach any significance to the evidence as being more broadly relevant to the shared nature of the parties’ relationship. It was further submitted that the Tribunal was not proceeding in a vacuum and that, because it was engaged in a merits review of the issues arising upon the decision under review, the relevant starting point was the reasons of the delegate. This submission was plainly correct: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[72] In this context, it was noted that the decisional record of the delegate had referred to the invoice from Ambulance Victoria as evidence which related to the question of the nature of the parties’ household and, in particular, as proof of the applicant’s residence.
[72] (2006) 228 CLR 152, [35] (the Court).
The Minister correctly submitted that the task of the Tribunal in undertaking a review of a Partner visa application was essentially impressionistic and evaluative.[73] It was accepted that the Tribunal had not referred at all to the evidence relating to the parties’ two month trip to Vietnam immediately following their marriage, but it was then said that the failure to refer to the evidence of the trip to Vietnam was merely indicative of the Tribunal having attached no particular significance to it and as confirmatory that this evidence was not particularly probative one way or the other. As concerned the Ambulance Services evidence, the Minister accepted that this evidence was also before the Tribunal but that this had been considered with respect to the parties’ financial relationship. It was further submitted that the failure to advert to this evidence in an evaluation of the shared nature of the parties’ relationship was not an error which was jurisdictional in nature.
[73]He, supra (2017) 255 FCR 41, [51] citing Ally v Minister for Immigration and Citizenship [2008] FCAFC 49, [40].
The Tribunal understood the task which was required to be undertaken. It adopted the subject matter of reg 1.15A(3)(a)-(d) as its subject headings in its Reasons. The Tribunal recognised that it was required to have regard to all of the circumstances of the relationship when forming an opinion whether one or more of the conditions prescribed by par 5F(2)(a)-(d) existed. As concerns Ground 3, the question was whether it assessed in a real and active way the claim, evidence and submissions which were before it.
To adapt the reasoning of Robertson J in SZRKT,[74] where a complaint is made of a failure to consider evidence, a fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error in failing to consider that evidence or to give any sufficient weight to it. I accept the Minister’s submission that the evidence relied upon was not of such significance as it would have altered the outcome of the application.
[74] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111]-[112]
It is of some significance that the applicant’s migration agent prepared the witness statement of the spouse’s mother and the applicant’s submissions. The witness statement did not adduce cogent evidence. Importantly, the evidence now relied upon was located in the applicant’s submissions within that part of the claim which related to the nature of the parties’ household. It was expressly addressed under that heading. So too were the photographs and the invoice from Ambulance Victoria, all of which were relied upon in relation to the consideration of the nature of the parties’ household. That is to say, the applicant, by her agent adduced this evidence in relation to the matters which required consideration under reg 1.15A(3)(b) as bearing upon proof of the nature of the parties’ household. The evidence was not located in the submissions under reg 1.15A(3)(c) or (d) as being relevant to the nature of the parties’ commitment to one another.
The circumstance that the applicant’s migration agent had prepared the submissions and represented the applicant was of some significance in the way that the Tribunal ought to have been expected to conduct the hearing and to read and approach the applicant’s submissions. Further, the circumstance that the matters now relied upon were not raised in relation to other prescribed issues serves to indicate that they were not regarded as being of fundamental importance to those other issues.
Seen in its proper context, it is apparent that the manner in which Ground 3 is framed involves a reformulation of the claim as it had been made before the Tribunal. As has been emphasised, on judicial review the court will insist that the Tribunal’s decision “must be considered in light of the basis on which the application as made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”: S395/2002 v Minister for Immigration and Multicultural Affairs.[75]
[75] (2003) 216 CLR 473 at [1] (Gleeson CJ).
Accordingly, I do not accept that there was any glaring failure by the Tribunal’s failure to refer to the witness statement or to address the other evidence in further detail. The Tribunal was not obliged to refer to every piece of evidence. I do not accept that the Tribunal’s process in not referring to the witness statement entailed error in the foregoing circumstances. It was a matter for the Tribunal to determine what weight was to be applied to any particular piece of evidence. While the absence of any reference in a Tribunal’s Reasons may support an inference that such matter was not considered by it to be material, such an inference is not to be lightly drawn. Even had I concluded that the failure to refer to the witness statement had been erroneous, I would not have characterised it as being jurisdictional in character.
Ground 3 is rejected.
Conclusion
The present application is not one in which the Tribunal overlooked reg 1.15A. The Reasons referred to and attached a copy of the Regulation. Nor do I suggest that the Tribunal may not have been justified in its conclusions as to the applicant’s stated ignorance of the sponsor’s apparent gambling history and the suggested inconsistency between that conduct and his dependence on government support for income.
Instead, this application for judicial review turns upon the Tribunal’s failure to consider the mandatory relevant considerations as prescribed by reg 1.15A(2)-(3). I have concluded that the Tribunal failed to do so in some important respects. It follows that the decision to affirm the delegate’s decision to refuse the application must be set aside. It does not follow that upon reconsideration the application must be granted. Whether that should occur will depend upon the whole of the information which is then before the Tribunal.[76]
[76] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 176 (Wilcox J).
For the foregoing reasons, the amended application for judicial review should be allowed with costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 5 April 2019
[16][1986] HCA 40; 162 CLR 24 at 39 (Mason J).
[19][1998] HCA 28; 194 CLR 355 at [91] - [93].
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