Wang v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1334
•21 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1334
File number(s): CAG 13 of 2023 Judgment of: JUDGE LEISHMAN Date of judgment: 21 August 2025 Catchwords: MIGRATION – Application for judicial review – Partner (temporary) (class UK) (subclass 820) visa – Whether genuine spousal relationship exists – Whether family violence allegations required to be considered – No jurisdictional error established – Application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5CB, 5F, 368, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 2, Sch 2
Migration Regulations 1994 (Cth) regs 1.09A, 1.15A, Sch 2, cll 801.221, 820.211, 820.221
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Vo v Minister for Home Affairs [2019] FCAFC 108
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304
He and Others v Minister for Immigration and Border Protection and Another (2017) 161 ALD 17
Campos v Minister for Immigration and Border Protection [2019] FCA 1791
Kanu v Minister for Immigration and Border Protection [2018] FCCA 435
Fabian v Minister for Immigration and Border Protection [2018] FCCA 434
Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 358
Kaur v Minister for Immigration and Border Protection [2014] FCA 1251
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 15 August 2025 Place: Canberra Solicitor for the Applicant: Self-represented litigant, in-person Solicitor for the First Respondent: Ms Ho of Clayton Utz Solicitor for the Second Respondent: Submitting appearance ORDERS
CAG 13 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YU-PING WANG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LEISHMAN
DATE OF ORDER:
21 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Citizenship.
2.The application filed on 31 March 2023 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LEISHMAN
INTRODUCTION
On 31 March 2023, the Applicant applied to this Court under s 476 of the Migration Act 1958 (Cth) (‘the Act’), for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), as it then was, made on 21 March 2023.
In that decision, the Tribunal affirmed a decision not to grant the Applicant a Partner (Temporary) (Class UK) (subclass 820) visa.
PROCEDURAL BACKGROUND
The Applicant is a citizen of Taiwan and arrived in Australia on 22 November 2014 on a visitor visa. She later applied for and was granted a student visa.
On 13 August 2019, with the assistance of a migration representative, the Applicant applied for a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa. The visa application was based on the Applicant's relationship with an Australian citizen who was her sponsor (‘the sponsor’).
The Applicant and the sponsor said in the visa application that they met in a pub in Sydney in June 2018. They met again by chance in Canberra in January 2019 and exchanged contact details. They began a relationship in February 2019 whilst the Applicant was studying and working in Sydney and the sponsor was living in Canberra. The sponsor proposed to the Applicant in July 2019 and they married on 10 August 2019. The Applicant moved to Canberra permanently in October 2021 and she and the sponsor began living together.
On 2 March 2022, a Delegate of the Minister (‘the Delegate’) notified the Applicant of its decision to refuse to grant the visa on the basis the Applicant did not meet the definition of spouse or de facto partner under ss 5F and 5CB of the Act, such that she did not satisfy the criterion in cl 820.211(2)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Consequently, the Applicant did not meet cl 820.211 which is a criterion that must be satisfied at the time of the application.
Further, as the Delegate had refused the Partner (Temporary) (Class UK) (Subclass 820) visa, the Applicant was not the holder of a Subclass 820 visa and consequently did not meet the criterion in cl 801.221(2), (2A), (3), (4),(5) or (6) of the Regulations. Therefore, the application for a Partner (Residence) (Class BS) (Subclass 801) visa was also refused.
On 21 March 2022, the Applicant applied to the Tribunal for review of the Delegate's decision with the assistance of her representative.
On 25 March 2022, the Tribunal acknowledged receipt of the Applicant's application by written correspondence dated that day. By an information sheet accompanying that letter, the Applicant was notified that if she wished to provide material or written arguments for the Tribunal's consideration, she should do so as soon as possible.
On 17 January 2023, the Tribunal invited the Applicant by written correspondence to appear before it and present arguments. The Applicant was notified that she should provide all documents she intended to rely on in support of her case by 1 March 2023.
On 3 February 2023, in response to that invitation, the Applicant's representative provided a Response to Hearing Invitation. In the Response to Hearing Invitation, the Applicant confirmed that she would attend the hearing with her representative. The Applicant provided additional materials in support of her application.
The Applicant included information that she and the sponsor had broken up in January 2023 due to family violence. The Applicant had obtained an interim Family Violence Order on 5 January 2023 and enclosed a copy of the application and the interim Order.
On 8 March 2023, the Applicant attended a hearing with her representative to present arguments. She was assisted at the hearing by a Mandarin interpreter. Due to the Applicant’s relationship with the sponsor having ended, she sought to rely upon the family violence exemption in cl 820.221(3).
On 21 March 2023, the Tribunal notified the Applicant of its decision to affirm the Delegate’s decision not to grant the visa.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is at pages 362 to 369 of the Court Book (‘CB’).
The Tribunal identified at [2] and [13] (CB363-364) of its decision that the issue on review was whether the Applicant met the requirements of cl 820.211(2)(a) and cl 820.221 of Sch 2 of the Regulations.
Clause 820.211 sets out the primary criteria that must be satisfied at the time of the decision. Clause 820.211(2)(a) requires that the Applicant is the spouse or de facto partner of a person who, is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, is not prohibited by subclause (2B) from being a sponsoring partner and has turned 18 or if under 18 has an eligible parent or guardian.
The central criterion for both a Temporary Partner Visa and a Residence Partner Visa is that the visa applicant must be the spouse of the sponsor.
Section 5F of the Act defines the word spouse as follows:
5F Spouse
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
Regulation 1.15A of the Regulations sets out the mandatory factors to be considered when determining whether the visa applicant is a spouse for the purposes of s 5F of the Act.
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
At [10] of its decision (CB363), the Tribunal recorded that at the time of the hearing, the Applicant and sponsor were no longer in a relationship. The Applicant said she was a victim of family violence and that was why the relationship ended.
The Tribunal noted that before considering the Applicant’s claims as to family violence, it first needed to be satisfied that the Applicant and her sponsor were in a genuine spousal relationship as envisaged by the Act and that but for the alleged family violence, the relationship would be ongoing.
At [13] of its decision (CB364), the Tribunal recorded that cl 820.211(2)(a) and cl 820.221 require that at the time the visa application was made, and at the time of its decision, the Applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident, or an eligible New Zealand citizen.
The Tribunal referred at [14] of its decision (CB364) to the definition of spouse in s 5F of the Act and the factors in reg 1.15A(3) of the Regulations which are required to be considered when determining whether the relevant parties are in a married relationship.
At [15] (CB364) the Tribunal accepted the evidence of a valid marriage for the purposes of s 5F(2)(a) of the Act, as there was a copy of the marriage certificate on the Tribunal’s file.
The Tribunal listed at [16] to [19] of its decision (CB354-365) the documents it took into account in reaching its decision. This included the following evidence submitted by the Applicant prior to the hearing:
(a)4 Nov 2020 - 4 Jun 2021-joint bank statement to the same address;
(b)11 Jun 2021 - 2 Jan 2023-joint bank statement to the same address;
(c)7 Jul 2019 - joint rental agreement 7 Jul 2019;
(d)6 Jun 2021 - joint rental agreement from 20 Jun 2021-19 Jun 2022;
(e)31 May 2022 - joint lease renew agreement for 20 Jun 2022-19 Jun 2023;
(f)8 Feb 2023 - landlord statement shows applicant and sponsor lived at the same address from 20 Jun 2021 to 6 Jan 2023;
(g)6 Feb 2020 - NOA to the same address - sponsor;
(h)5 May 2022 - tax invoice to the same address - applicant;
(i)7 Jan 2022 - vaccination statement to the same address - applicant;
(j)27 Apr 2022 - tax invoice to the same address - applicant;
(k)11 Jul 2022 - letter to the same address - sponsor;
(l)27 Sep 2022 - bank letter to the same address - applicant;
(m)30 Oct 2022 - letter to the same address – applicant;
(n)21 Nov 2022 - tax invoice to the same address – applicant;
(o)Form 888 – RILEY;
(p)Form 888 - SCOTT;
(q)Joint photos when wedding day;
(r)Joint photos with sponsor's family;
(s)Marriage certificate
(t)Nov 2020 - Jun 2021 - messages between applicant and sponsor;
(u)13 Oct 2021 - 2 Sep 2022 - messages between applicant and sponsor;
(v)A number of medical receipts; and
(w)Screen shots of bank transactions with ANZ.
The Tribunal also had regard to the documents relating to the application for an interim Family Violence Order and a submission made by the Applicant through her representative after the hearing.
The Tribunal noted at [17] (CB365) that the parties had provided no personal statements or statutory declarations about their relationship to the Delegate or the Tribunal.
The Tribunal gave consideration to whether the requirements of a spouse relationship existed at [20] to [42] of its decision (CB365-367).
In respect of the requirements in reg 1.15A(3) of the Regulations, the Tribunal considered the following matters.
Financial Aspects of Relationship
The Tribunal considered various bank statements, screenshots of transactions into a bank account and the Applicant's oral evidence and noted that there were few transactions that demonstrated costs associated with a shared household. For example, electricity and utility bills, rent, phone bills, insurance or other costs did not appear to be paid from the account and nor were the parties’ salaries deposited to it. The Applicant later told the Tribunal she was paid in cash and that she had discovered the sponsor had not paid the electricity bill for the entire time she and the sponsor were living together.
The Tribunal considered that the evidence did not demonstrate that the parties shared or pooled their financial resources or that they had any shared assets or liabilities.
In respect of the Applicant’s claim that she and the sponsor planned to buy a house together, the Tribunal took into account and pointed out to the Applicant that her bank account showed a balance of only $10.07.
Having regard to all of those matters, the Tribunal concluded that the financial aspects of the parties’ relationship did not support a finding that they had a mutual commitment to a shared life together.
The Nature of the Household
The Tribunal noted at [28] (CB366) that until around October 2021, the Applicant worked in both Sydney and Canberra as a masseuse and that after that time, she and the sponsor shared an apartment together in Canberra.
The Tribunal considered lease agreements and evidence from the Applicant's landlord during the hearing and accepted that the parties entered into a lease for a flat together in around June 2021. The Tribunal noted that the sponsor spoke to the Applicant's daughter in Taiwan from time to time and observed that the Applicant did not say there was any plan to sponsor the Applicant’s daughter to live with the parties at any time. The Tribunal also noted that the Applicant stated she became pregnant and terminated the pregnancy as she had consumed drugs and alcohol at the time. It also noted that the Applicant gave no indication that the termination of her pregnancy was a joint decision between herself and the sponsor.
At [32] of its decision (CB366), the Tribunal accepted that the Applicant and the sponsor shared the same address and accommodation, but was not satisfied the evidence supported a finding that they lived together as husband and wife or had a mutual commitment to a shared life together.
The Social Aspects of the Relationship
The Tribunal considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.
The Tribunal noted at [34] (CB366) that the Applicant told the Tribunal that they do not have many friends and did not socialise much. Despite this, the Tribunal gave some weight to photographs of the parties together at their wedding and other places with other people. It also had regard to two statutory declarations from the sponsor’s brother and an old family friend, both of which indicated that they believed the relationship between the Applicant and the sponsor to be genuine.
However, the Tribunal was not satisfied the social aspects of the parties’ relationship was weighty enough to allay its concerns in relation to other aspects of the relationship. It concluded at [35] (CB366) that the social aspects of the parties’ relationship did not support a finding that they present themselves to others as a married couple, or that they have a mutual commitment to a shared life together, to the exclusion of all others.
The Nature of the Persons’ Commitment to Each Other
The Tribunal considered at [37] (CB367) how the Applicant and sponsor met and the details and duration of their relationship.
With the Applicant’s permission, the Tribunal spoke to a family friend who had provided a supporting statutory declaration. The Tribunal recorded at [38] (CB367) that the friend told the Tribunal the Applicant and sponsor had broken up and they were living together amicably but were both seeing other people, with the sponsor having been in another relationship since July 2022. The Applicant denied she had been in another relationship but acknowledged the sponsor had had an affair. She said this was what led to the family violence. When asked why she remained in the relationship, she told the Tribunal she hoped the sponsor would forget about the other woman and things would get better.
The Tribunal expressed concern at [40] of its decision (CB367) that the Applicant did not disclose the fact that the sponsor had been in another relationship whilst claiming to still be in a genuine, continuing, and ongoing relationship with the Applicant. The Tribunal considered the Applicant’s failure to disclose this relevant information did not give it confidence that she had been entirely forthcoming about the entirety of her relationship with the sponsor.
The Tribunal was therefore not satisfied the Applicant and sponsor had a mutual commitment to a shared life together to the exclusion of all others.
The Tribunal concluded at [42] (CB367) that it was not satisfied the requirements of s 5F(2) of the Act were met at the time the visa application was made or at the time of its decision.
As a result of that determination, the criterion in cl 820.211(2)(a) or cl 820.221(1)(a) were not met.
In respect of the family violence exemption in cl 820.221(3), the Tribunal found that the spouse relationship had to exist before it could be found to have ceased. It therefore concluded at [45] of its decision (CB367) that because a spouse relationship did not exist at the relevant time, it was not required to make a decision about the Applicant’s family violence allegations against the family violence provisions.
The Tribunal therefore affirmed the Delegate’s decision not to grant the visa.
CURRENT PROCEEDINGS
On 31 March 2023, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the decision of the Tribunal (‘the application’). The Applicant also filed an affidavit annexing the Tribunal’s decision.
On 28 August 2023, procedural orders were made which included an order permitting the Applicant to file any submissions, amended application, and any additional evidence upon which she sought to rely 28 days prior to the hearing.
On 18 February 2025, the procedural orders made on 28 August 2023, were confirmed by a Registrar.
On this date, the Court also noted that the Applicant indicated that she did not have a copy of the Court Book. The solicitor for the First Respondent confirmed that she had forwarded an additional copy of the Court Book to the Applicant at her email address for service.
The Applicant did not file any further material except for a Notice of Address for Service form on 6 May 2025.
The matter was listed for a final hearing on 15 August 2025.
MATERIAL RELIED UPON
At the hearing, the material set out below was before the Court.
The Applicant relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The application for judicial review filed on 31 March 2023; and
(c)The affidavit of Yu-Ping Wang filed 31 March 2023;
The First Respondent relied upon the following material:
(a)The Court Book which was tendered and marked as Exhibit C-1;
(b)The response filed 30 April 2023; and
(c)The outline of submissions filed 31 July 2025; and
(d)List of authorities filed 13 August 2025.
The Applicant confirmed she had a copy of the Court Book and had received and read the First Respondent’s written submissions. The Applicant was also given the opportunity to make oral submissions in support of her application and in reply to the submissions made by the First Respondent.
A mandarin interpreter was present at the hearing to assist the Applicant.
I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.
REQUIREMENT FOR JURISDICTIONAL ERROR
The Court may set aside the Tribunal’s decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth) ss 474 and 476; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [2] as:
…breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".
GROUND OF REVIEW
The Applicant’s one ground for judicial review is set out in the application filed on 31 March 2023.
Ground One
1.I met all the requirements to grant the spouse visa.
This ground is a bare assertion that the Applicant met the requirements for the spouse visa to be granted.
The Applicant does not refer to any evidence that was before the Tribunal that demonstrates she met the criterion in cl 820.211 and cl 820.221 and which the Tribunal failed to take into account. The ground is simply an expression of her disagreement with the Tribunal’s decision.
At the hearing before this Court, the Applicant submitted that she had told the Tribunal she and the sponsor were still in a relationship for all of 2022 and that the evidence they had broken up in July 2022 was untrue.
The thrust of her submissions was that the Tribunal’s decision was unfair and an incorrect interpretation of the facts.
The Applicant did not assert any legal error in the Tribunal’s decision.
Mere disagreement with the Tribunal’s findings does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, at [40] per Gleeson CJ and McHugh J and Vo v Minister for Home Affairs [2019] FCAFC 108 per Derrington, Banks-Smith and Colvin JJ.
To the extent the Applicant may be seeking a merits review by asking the Court to reconsider the facts, the Court does not have the power, and it is impermissible to undertake a merits review of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal correctly identified the issue on review and applied the law in relation to s 5F of the Act, reg 1.15A(3) of the Regulations, and cl 820.211 and cl 820.221 of Sch 2 to the Regulations. The Tribunal also carefully evaluated each consideration in reg 1.15A(3).
S 368(1)(c) of the Act, provides that where the Tribunal makes a decision on a review, the Tribunal must make a written statement that ‘sets out the findings on any material questions of fact’. That provision only requires the Tribunal to set out the findings of fact which the Tribunal considered to be material to the decision it has made: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9], [10], [34], and [68].
To the extent the Applicant submitted the Tribunal incorrectly interpreted the facts, the Tribunal’s reasons demonstrate it considered all aspects of the Applicant’s evidence in reaching its decision.
The Tribunal gave weight to some aspects of the Applicant’s evidence such as statements from friends and family about the relationship and photos provided, but considered it was not sufficiently weighty to detract from concerns it had about other parts of the Applicant’s evidence in respect of the relationship between the Applicant and sponsor.
The weight to be given to evidence is a matter entirely for the decision-maker, attributing whatever weight or persuasive quality is thought appropriate: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 at [24] per Keifel CJ, Keane, Gordon and Steward JJ.
The Tribunal identified at [14] of its decision (CB364) that it was required to have regard to all the circumstances of the relationship including evidence of the financial and social aspects, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3) which it annexed to its decision. It also noted that each of the matters set out in reg 1.15A(3) are effectively questions that must be answered.
While the Tribunal’s reasons did not specifically address in a formulaic manner every reg 1.15A(3) factor, its written reasons and the circumstances of the relationship it had regard to were detailed and lead to a powerful inference that the Tribunal nonetheless made findings on each of those factors in the course of assessing the Applicant's evidence.
In He and Others v Minister for Immigration and Border Protection and Another (2017) 161 ALD 17 at [79] and [82], the Full Court held that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act, noting “the impressionistic and evaluative nature of the Tribunal’s task”, and that the Tribunal's reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
In Campos v Minister for Immigration and Border Protection [2019] FCA 1791 (‘Campos’), the Court stated at [36] when considering the matters in reg 1.15A(3) that:
…While it may be helpful to do so by a check-list, that approach is not required.
At [37] of its decision in Campos the Court went on to state:
The Tribunal is not required to refer to or make findings on every piece of evidence as opposed to the topics or matters referred to in reg 1.15A(3). That important point is made in He (at [83]), where the Court also confirmed that the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing inferences from its reasons.
It was submitted on behalf of the First Respondent that in light of the Tribunal's clear identification of the reg 1.15A(3) factors, and its detailed reasons, the proper inference to be drawn is that the Tribunal made a finding in respect of each sub-regulation in reg 1.15A(3), such that it correctly applied the law. See: Kanu v Minister for Immigration and Border Protection [2018] FCCA 435; Fabian v Minister for Immigration and Border Protection [2018] FCCA 434; Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 358 at [21] in relation to analogous reg 1.09A(3).
For all of the above reasons, I consider the Tribunal properly considered and made findings in respect of each of the factors in reg 1.15A(3).
In respect of the issue of family violence, the Tribunal was not obliged to consider this in circumstances where the Tribunal was not satisfied that the Applicant and her sponsor were in a genuine spousal relationship at the time of the visa application. In this regard, I refer to the decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 1251 where Murphy J stated at [44]:
In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.
In terms of the Tribunal’s procedural fairness obligations, the Applicant raised that she had asked the Tribunal to adjourn the hearing when she received notice of it, as she was in the midst of the family violence proceedings against the sponsor. There is no evidence of this request having been made on the Tribunal’s file and the Applicant could not identify the method she used for making this request. Instead, the Tribunal’s file shows the Applicant’s migration agent who appeared at the Tribunal hearing with her, submitted the response to hearing form confirming the Applicant would be at the hearing.
The Tribunal appears to have otherwise complied with its procedural fairness obligations in that the Applicant was properly invited to a hearing which she attended with her representative. She was also afforded the opportunity to make submissions and provide additional information both before and after the hearing.
No jurisdictional error is made out in respect of the Ground contained within the Application and accordingly, it must fail.
CONCLUSION
For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.
COSTS
The First Respondent sought costs fixed in the amount of $8,371.30.
As the application has been dismissed, it is usual that costs should follow the event.
Accordingly, I order costs in the amount of $8,371.30 being the applicable scale amount at item 3 of Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), when the proceedings commenced.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman. Dated: 21 August 2025
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