Zeng v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1593

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Zeng v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1593

File number(s): SYG 1912 of 2019
Judgment of: JUDGE GIVEN
Date of judgment: 1 October 2025
Catchwords: MIGRATION – Whether findings of Tribunal failed to engage with evidence – whether identified inconsistencies were based on minor and immaterial discrepancies   
Legislation:

Migration Act 1958 (Cth) s 359A, 359AA

Migration Regulations 1994 (Cth) reg 1.15A
Cases cited:

ASB17 v Minister for Home Affairs (2019) 268 FCR 271

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Division: General Federal Law
Number of paragraphs: 90
Date of hearing: 9 December 2024
Place: Sydney
Counsel for the Applicant: Mr N Poynder
Solicitor for the Applicant: Herald Legal
Solicitor for the Respondents: Mr Taverniti, Sparke Helmore

ORDERS

SYG 1912 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SHI ZENG

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

1 OCTOBER 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The application filed on 26 July 2019, as amended, is dismissed.

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

REASONS FOR JUDGMENT

JUDGE GIVEN:

  1. By an application made pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act), the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 June 2019, affirming a decision of the first respondent to not grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (visa).

    BACKGROUND

  2. The background to the matter and summary of the Tribunal’s decision is derived primarily from the written submissions of the parties, and the material in the Court Book.  Unless otherwise indicated, it does not appear to be in dispute.

  3. The applicant, a citizen of China, applied for the visa on 9 September 2015 (Court Book (CB) 1 to 29).  In his visa application, the applicant identified his wife as his sponsor (sponsor) (CB 13).

  4. On 12 June 2017, a delegate of…

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Zeng v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1593
Case
[2025] FedCFamC2G 1593
Decision Date

CaseChat Overview and Summary

The case of Zeng v Minister for Immigration and Multicultural Affairs involved the applicant challenging the decision of the Tribunal to affirm the decision not to grant him a visa. The Tribunal had found various inconsistencies in the applicant's evidence regarding the nature and history of his relationship with the sponsor, which led to the conclusion that the relationship was not genuine. The applicant argued that the Tribunal’s findings were based on minor and immaterial discrepancies and failed to properly engage with the evidence presented.

The central legal issues in this case revolved around the proper application of credibility assessments in visa applications, particularly in determining whether the inconsistencies identified by the Tribunal were sufficient to undermine the applicant’s claims. The court needed to consider whether the Tribunal's adverse credibility findings were justified and whether they had a rational basis in the evidence.

The court examined the Tribunal's findings and noted that while the Tribunal had identified multiple inconsistencies in the applicant’s and sponsor’s accounts of their relationship, the court could not find that these inconsistencies were based on major or material errors. The inconsistencies identified by the Tribunal were largely minor and did not necessarily undermine the overall credibility of the applicant’s evidence. The court found that the Tribunal had not properly considered the explanations provided by the applicant and had failed to sufficiently engage with the evidence.

The court concluded that the Tribunal had erred in its assessment of the credibility of the applicant’s evidence and that this error was sufficient to warrant the setting aside of the Tribunal's decision. The court found that the applicant had not demonstrated that the inconsistencies were based on significant errors or that they materially affected the credibility of his evidence.

The final orders of the court were that the decision of the Tribunal be set aside and that the matter be remitted back to the Tribunal for re-hearing, taking into account the proper principles of assessing credibility and the nature of the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 12 June 2019, the Tribunal affirmed the decision not to grant the visa (CB 281 to 292).Tribunal decision The Tribunal set out that, at the hearings, it had put to the applicant a number of inconsistencies in his evidence pursuant to s 359AA of the Act (which applied at the time of the Tribunal’s decision). By reference to the evidence, the Tribunal listed nine potential inconsistencies, arising therefrom:(a)the date the parties first met (potential inconsistency 1); (b)by whom expenses pertaining to the applicant’s elder son were paid (potential inconsistency 2); (c)by whom expenses pertaining to the applicant’s younger son were paid (potential inconsistency 3); (d)when the sponsor first met the applicant’s elder son (potential inconsistency 4); (e)the last occasion on which a family “celebration” had been attended together (potential inconsistency 5); (f)what the parties had eaten for dinner the previous evening (potential inconsistency 6); (g)details of their wedding (potential inconsistency 7); (h)the amount paid to the applicant for work the previous Saturday (potential inconsistency 8); and (i)when the applicant’s car had last been serviced (potential inconsistency 9). A further potential inconsistency (potential inconsistency 10) was described by the Tribunal in relation to the parties’ evidence about their shared home in a particular suburb (CB 287 at [24]). The Tribunal identified to the applicant the potential relevance of the information, and outlined the consequences of it relying on the same (CB 284 at [16]). The Tribunal expressed concerns that the applicant and sponsor were not able to consistently answer questions about where, and when, they first met and how their relationship developed. The Tribunal observed that, when the inconsistencies were put to the applicant at hearing, he gave answers which seemed deliberately vague and, thereafter, adjusted his answers on an ongoing basis. The Tribunal did not consider it plausible that the applicant would fail to remember pertinent details about his relationship with the sponsor. It found the lack of knowledge and frequent shifting of evidence which the applicant displayed was not consistent with the relationship that the parties claimed to have. Further, the Tribunal was not satisfied the explanations given were sufficient to overcome the cumulative effect of the inconsistencies (CB 286 at [18]). The Tribunal accepted, based on the medical evidence provided, that the sponsor suffered from depression and that medication she took might make her drowsy, and at times, forgetful. The Tribunal took this into account when assessing the sponsor’s evidence (CB 286 at [19]). The Tribunal accepted that the applicant and sponsor were legally married to each other (CB 286 at [22]) and proceeded to consider all the circumstances of the relationship as set out in reg 1.15A(3) of the Regulations (CB 286 at [21]). Considering the financial aspects of the parties’ relationship, the Tribunal noted the applicant’s evidence that he and the sponsor had been living in a rented five-bedroom house for the last four months (the rental home). He could not provide the address of the rental home but named the suburb in which it was located correctly, and said that the sponsor’s two daughters lived with them (CB 287 at [23]). The Tribunal found the evidence of rental payments for the rental home to be ambiguous, observing that the bank statements which showed those payments being made also recorded the payments being reversed thereafter back to the same account.

Ratio Decidendi

Legal Principle Established

Insofar as the Tribunal’s adverse credibility findings are challenged, the first respondent says that jurisdictional error cannot be established unless the applicant can demonstrate those findings (and the facts upon which they rely) were illogical, and had no probative weight, citing EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] in which Stewart J observed:Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made…Consideration Potential inconsistency 1 The applicant and sponsor gave various, differing accounts to the delegate and the Tribunal about when they first met one another including the: (a)visa application made on 9 September 2029 at CB 19: “01 Sep 2009”; (b)statement of the sponsor dated 14 March 2018 at CB 114 at [4]: “(Shi) and I met for the first time in May 2010”, which claimed the couple met in Xi’an where the sponsor and her family were operating a restaurant, which the sponsor attended while travelling; (c)statement of the applicant dated 14 March 2018 at CB 116 at [4]: “I met Ling Hui Kong …for the first time in May 2010”, which claimed the couple met in Xi’an at the restaurant of the sponsor’s family; (d)statement of the sponsor dated 4 October 2018 at CB 216 at [1] seeking to correct the statement referred to at [42(b)] above: “My husband Shi Zeng (Shi) and I first met each other in Shenzhen, China in March 2011. Then, we met each other again in Xi’an, China in May 2011 when my husband and her sister travelled to the city”; and (e)statement of the applicant dated 4 October 2018 at CB 217 at [1] seeking to correct the statement referred to at [42(c)] above: “I met Linghui Kong for the first time in Xi’an, China in March 2011.(…) In May 2011, I again met Linghui Kong in May 2011 when I travelled to Xi’an, China.”. At the Tribunal hearings: (a)the applicant gave evidence that he met the sponsor in May, or March or April[1] in Shenzhen[2] in the applicant’s factory;[3] and(b)the sponsor gave evidence that she first met the applicant in 2011 when she first went to Shenzhen and he picked her up from the airport and took her to the factory.[4][1] First Tribunal transcript T 26.11 to 26.17[2] First Tribunal transcript T 26.21 to 26.33[3] First Tribunal transcript T 26.37 to 26.41 and also second Tribunal transcript at T 21.38 to 24.11[4] First Tribunal transcript T 52.13 to 52.23 and T63.03 to 63.23 The applicant submits: However, at (CB 286 at [18]) the only concern expressed by the Tribunal about these inconsistencies was their evidence at the hearing. When closely scrutinised, the Tribunal’s claims of inconsistency do not stand up. At [18], the Tribunal said the following (emphasis added): The Tribunal was concerned the applicant and the sponsor were not able to answer questions put to them about where and when they had first met and the development of their relationship. When the inconsistencies were put to the applicant under s.359AA of the Act the applicant frequently sought to adjust his answers and sought wherever possible to evade giving an answer. The Tribunal did not consider it plausible that he could fail to remember pertinent details about the history of the relationship. The Tribunal was concerned the answers the applicant gave were deliberately vague in an attempt to not disclose any information he considered may be prejudicial to the claim. The lack of knowledge and the frequent shifting of evidence displayed by the applicant were not consistent with the relationship the parties claimed to have. Whilst it is appreciated Tribunal proceedings can be very difficult for parties and this stress can of itself lead to some inconsistencies in the evidence given, the Tribunal is not satisfied the explanations given are sufficient to overcome the cumulative effect of the inconsistencies.