FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration and Border Protection [2017] FCAFC 206

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal against a judgment of the Federal Circuit Court of Australia. By that judgment, the primary judge dismissed the appellants’ application for constitutional writs directed to the second respondent, the Administrative Appeals Tribunal (the Tribunal).

2    The Tribunal (then known as the Migration Review Tribunal) affirmed a decision made by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant each of the appellants a Partner (Residence) (Class BS) Visa (Residence Partner Visa). The basis of the Tribunal’s decision was that it was not satisfied that the first appellant, Ms He, was the “spouse” of her sponsor, Mr Xu, within the meaning of that term in s 5F of the Migration Act 1958 (Cth) (the Act).

Background

3    Ms He was born in China and arrived in Australia on a student visa in 1998. The second and third appellants are her children from a previous relationship.

4    After Ms He’s student visa expired, she applied for a protection visa under an assumed name. That application was refused and the decision was later affirmed by the Migration Review Tribunal. Ms He’s request for ministerial intervention was refused in June 2000, but she remained in Australia unlawfully after that time.

5    On 21 August 2010, Ms He married Mr Xu. Ms He then made a combined application for a Partner (Temporary) Visa (Temporary Partner Visa) and a Residence Partner Visa. Mr Xu was her sponsor. On 14 September 2011, Ms Hu was granted a Temporary Partner Visa. The second and third appellants arrived in Australia on 1 October 2012 on Dependent Child (Subclass 445) Visas. The regulatory scheme requires the holder of a Temporary Partner Visa to remain in a married relationship with the sponsor for two years before being eligible for a Residence Partner Visa (subject to an exception where there has been domestic violence).

6    On 6 February 2013, departmental officers conducted a visit to a house in Auburn in New South Wales, which had been nominated as the marital home. Mr Xu was not present. The officers concluded that there was limited evidence that Mr Xu resided with Ms He at that address.

7    On 26 February 2013, the Minister’s delegate made a decision to refuse to grant the Residence Partner Visas on the basis that the delegate was not satisfied that the relationship was genuine and continuing. The appellants then filed an application for review of the delegate’s decision with the Tribunal.

The Tribunal’s decision

8    In its reasons, the Tribunal summarised the evidence and other material before it. The Tribunal then noted that cl 801.221(2)(c) of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations) requires that, at the time of the decision, the applicant must be the “spouse” of the sponsoring partner. The Tribunal referred to the definition of “spouse” in s 5F of the Act and reg 1.15A of the Regulations and noted that it was required to have regard to all the circumstances of the relationship.

9    The Tribunal went onto say:

56.    Ms He’s and Mr Xu’s evidence, if accepted at face value, supports a finding that they are in a spousal relationship. They claim to have an intertwining of financial affairs, they have a joint bank account, they claim to cohabitate, they have provided evidence from family and others attesting to the relationship and that both claim that they provide each other with companionship and emotional support and both indicate that the relationship is a long term [one].

57.    However, as is evident from the history of the application, the tribunal has serious concerns about the credibility of Ms He and Mr Xu when it comes to evidence about their commitment to the relationship.

10    The Tribunal then discussed the concerns it had about the evidence of Ms He and Mr Xu.

11    First, in the course of her application for a protection visa, Ms He had demonstrated that she was prepared to provide false and misleading information to a Tribunal in order to achieve a “migration outcome”. The Tribunal indicated it would take a cautious approach to her evidence.

12    Second, when departmental officers conducted the home visit, the owner of the house appeared not to know Mr Xu and there appeared to be little evidence that Mr Xu resided at that address. The Tribunal noted that the owner had now provided a statutory declaration to the effect that he misunderstood who the departmental officers were looking for and that Ms He and Mr Xu did in fact cohabit at that address. The Tribunal accepted that it was plausible that the owner misunderstood the departmental officers.

13    Third, Mr Xu had travelled to China on three occasions with his ex-wife, while Ms He had travelled to China on one occasion without Mr Xu. The Tribunal said that Mr Xu’s repeated travel with his ex-wife suggested that their relationship had not ended. The Tribunal said that while repeated travel did not necessarily prove that his relationship with his ex-wife was continuing, it “stretches credulity” when looked at in conjunction with the fact that Ms He also travelled to China without Mr Xu.

14    Fourth, the Tribunal noted that the addresses given for Mr Xu in his incoming passenger cards were different to the address nominated as the marital home. Mr Xu gave inconsistent evidence as to who had completed the passenger cards for him. The Tribunal found that even if, as Mr Xu finally claimed, the cards were completed by his ex-wife, it was implausible that, rather than simply asking Mr Xu where he lived, his ex-wife would make up an address for him.

15    Fifth, the Tribunal said that there were some curious financial transactions which appeared to be consistent with a scenario where Mr Xu was to be paid money for his part in the visa application. Ms He was adamant that there is no financial arrangement or inducement for Mr Xu to sponsor her visa application.

16    The Tribunal found:

69.    The tribunal notes that the financial transactions are circumstantial and taken in isolation do [sic not] prove that the relationship between Ms He and Mr Xu is contrived. Similarly Ms He’s adverse migration history does not prove that the current relationship is contrived. Similarly Mr Xu’s travels with his ex-wife (and lack of travel with Ms He) in isolation do not prove that the relationship is contrived. Furthermore the tribunal accepts that it is plausible that the owner of the property misunderstood the department officers.

70.     However in this case there is contemporaneous evidence (the home visit and passenger cards) that Mr Xu and Ms He were not cohabitating. The tribunal notes that the owners provided [a] statutory declaration attesting that Mr Xu and Ms He cohabitated. However the combination of the home visit and passenger cards is compelling evidence that at that particular time the parties were not cohabitating, notwithstanding the recent statutory declarations.

71.     It is the combination of the above that is problematic. There are a number of circumstantial concerns. One or two of these concerns may be plausible but it is the number of concerns that stretch credulity, particularly in light of the evidence that the parties were not cohabitating. In summary the tribunal is not prepared to find that Ms He and Mr Xu are credible witnesses when it comes to evidence about their relationship.

72.     In this case it is not one thing in particular that is determinative. The tribunal acknowledges that it has been presented with a variety of evidence in support of an ongoing spousal relationship. However the tribunal thinks that the combination of the above concerns is overwhelming. Based on the combination of the above concerns, the tribunal is unable to be satisfied that the relationship between Ms He and Mr Xu is genuine and continuing.

73.    Given these findings the tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore Ms He does not meet cl.801.221(2)(c).

17    The Tribunal accordingly affirmed the decision of the Minister’s delegate.

The judgment of the Federal Circuit Court

18    The Federal Circuit Court dismissed the appellants’ application for review of the Tribunal’s decision. Before the Federal Circuit Court, the appellants relied on three grounds:

(1)    The Tribunal failed to have regard to, or make findings on, the circumstances of Ms He’s relationship with Mr Xu as required by reg. 1.15A(3)(a), (b) and (c) of the Regulations.

(2)    The Tribunal failed to make a finding as to whether Ms He and Mr Xu were cohabiting at the time of the Tribunal’s decision.

(3)    In concluding that the applicant was not the spouse of the sponsor, the Tribunal took into account evidence that was not logically probative of its finding that Ms He was not the spouse of her sponsor.

19    As to the first ground, the appellants accepted that the Tribunal had adverted to the matters in reg 1.15A(3) of the Regulations, but submitted that the Tribunal did not give those matters proper, genuine and realistic consideration. The primary judge rejected that submission. His Honour found that the Tribunal was aware it was required to have regard to all the circumstances of the relationship, including financial and social aspects, the nature of the household and the commitment of the parties to each other. His Honour held that the Tribunal’s reasons indicated that it did have regard to those matters. His Honour considered that the reasoning by which the Tribunal arrived at its overall conclusion could not be fairly characterised as paying “lip service” to the factors identified in reg 1.15A(3)(a), (b) and (c).

20    The primary judge also rejected the appellants’ submission that the Tribunal failed to consider whether Ms He and Mr Xu were cohabiting as at the date of its decision. The Tribunal had relied upon what it described as “contemporaneous evidence” concerning the home visit and the incoming passenger cards. The appellants submitted that this evidence was not contemporaneous, but related to events that occurred well prior to the date of the Tribunal’s decision. The primary judge held that the question that had to be answered at the time of the decision was whether the relationship was genuine and continuing, not whether Mr He and Mr Xu were cohabiting. His Honour concluded that the Tribunal had answered the relevant question as at the time of the decision.

21    It is unnecessary to discuss the primary judge’s reasons for rejecting the third ground, as the appellants have not relied upon that ground in the appeal.

The legislation

22    Section 29 of the Act provides that, subject to the Act, the Minister may grant a non-citizen permission, known as a visa, to travel to and enter Australia, or remain in Australia, or both.

23    Section 31(1) of the Act provides that there are to be prescribed classes of visas, while s 31(3) provides that the Regulations may prescribe the criteria for visas of a specified class.

24    Section 65 of the Act provides, relevantly, that if the Minister is satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, the Minister is to grant the visa, or, if not so satisfied, is to refuse to grant the visa.

25    Regulation 2.01(1) of the Regulations provides that the prescribed classes of visas include the classes set out in Sch 1. The classes in Sch 1 include a Temporary Partner Visa and a Residence Partner Visa.

26    Under regs 2.02(2) and 2.03(1) of the Regulations, the prescribed criteria include the primary criteria and any secondary criteria set out in Sch 2 referrable to the relevant class of visa.

27    Part 801 of Sch 2 prescribes the criteria for a Residence Partner Visa. Clause 801.22 sets out the primary criteria that must be satisfied at the time of the decision. Subclause 801.221(2) requires that: the applicant be the holder of a Temporary Partner visa; the applicant continue to be sponsored by the sponsoring partner; the applicant be the “spouse” of the sponsoring partner; and at least two years have passed since the application was made. These criteria are evidently designed to prevent an applicant who has entered only a short-term relationship from gaining a permanent visa.

28    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.

29    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 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 husband and wife 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.

30    Regulation 1.15A of the Regulation provides, relevantly:

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.

The grounds of appeal and the parties’ submissions

31    The appellants’ amended notice of appeal contains the following grounds:

1.    The Court below erred in finding that the Second Respondent (the Tribunal) lawfully considered the matters it was required to consider in Migration Regulations 1.15A(3)(a), (b) and (c).

2.    The Court below erred in holding (at [36]-[37]) that the Tribunal did not have to consider whether the appellant and her sponsor were cohabiting as at the time of the decision.

Particulars

(a)    The Court should have found that (i) clause 801.221(2)(c) of Schedule 2 to the Migration Regulations read with s. 5F of the Migration Act required the Tribunal to consider whether the appellant and her sponsor were cohabiting as at the time of the decision, and,

(b)    That as it did not do so it fell into jurisdictional error.

32    In support of their first ground, the appellants submit that the Tribunal fell into jurisdictional error by failing to determine, or reach a conclusion about, some of the matters set out in reg 1.15A(3)(a) of the Regulations. The appellants’ written submission say (at [23]):

[The Tribunal] refers to a claim of the appellant and Mr Xu intertwining financial affairs and having a joint bank account. It does not assess the extent of pooling of financial resources, as is required by Reg 1.15A(3)(a)(iii). It also refers to a claim of cohabitation. It does not assess the living arrangements or the sharing of responsibility for housework, as are required by Regs 1.15A(3)(b)(ii) and (iii). It refers to evidence of the family and others attesting to the relationship, but it does not assess what may be concluded or drawn from that evidence which is relevant to the matters in Reg 1.15A(3)(c).

33    The appellants distinguish between the “evidence” in the case and “matters”. They submit that the factors set out in reg 1.15A(3) are matters which, under reg 1.15A(2), the Tribunal was required to specifically “consider”. They submit that it was not enough for the Tribunal to take into account the evidence going to those matters. The appellants submit that the Tribunal was required to “consider” those matters by making a determination, or reaching a conclusion (or, in other words, making a finding) upon each of them.

34    The Minister submits that the specific factors referred to by the Tribunal caused it to doubt the genuineness of the relationship, not the general considerations set out in reg 1.15A(3). The Minister submits that in these circumstances, no error is discernible from the fact that the Tribunal’s reasons focus on those specific circumstances, rather than the general considerations in reg 1.15A(3). It is submitted that, in any event, the Tribunal’s reasons show that it did address the specific matters in reg 1.15A(3) that the appellants allege were not addressed.

35    After judgment had been reserved in this appeal, Reeves J delivered judgment in Sun v Minister for Immigration and Border Protection [2017] FCA 1270 (Sun), in which his Honour applied the reasoning of Jessup J in Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 (Li). The parties were asked to provide further submissions dealing with the impact of those cases upon the present appeal.

36    The Minister submits that Li and Sun decided that reg 1.15A does not require the Tribunal to address each and every piece of evidence or make a finding in respect of each and every circumstance of the relationship. The Minister submits that those cases decided that it is first necessary for the Tribunal to identify the circumstances which are “of central and fundamental importance” or “germane” or “pertinent”, and this may require the Tribunal to make factual findings in relation to those circumstances. The Minister submits that so understood, the application of Li and Sun is fact sensitive, such that whether or not a particular circumstance will be sufficiently “pertinent” or “germane” as to require the making of factual findings as a question of fact and degree and is a matter for the Tribunal.

37    The Minister argues that the findings the Tribunal is required to make, in accordance with its obligation under s 368 of the Act, are limited to those which are, in its opinion, material. The Minister submits that it will not always be necessary, and will usually be unnecessary, for the Tribunal to make findings of fact in relation to a particular issue, relying upon the judgment of Dowsett J in Davis v Minister for Immigration [2004] FCA 686 at [35].

38    The Minister submits, in the alternative, that Li and Sun were wrongly decided and ought not to be followed. The Minister submits that there is nothing in the way reg 1.15A is, and was, expressed to support a conclusion that the Tribunal is obliged to record all circumstances of the relationship and state findings in respect of those circumstances. It is submitted that the obligation to “consider” imposes no more than a requirement to give proper, genuine and realistic consideration to the issue. The reasoning in Li is said to involve error because it conflates the obligation to “consider” with an obligation to make or record a determination. The Minister also submits that Li and Sun pay insufficient regard to the obligation to give reasons set out in s 368 of the Act.

39    The Minister argues that it is established that the Tribunal is not required to set out and separately evaluate the specific circumstance of the relationship referred to in reg 1.15A(3), relying upon Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]-[21] for this proposition.

40    The Minister submits that the Tribunal’s obligation is to have regard to considerations set out in reg 1.15A(3), but this does not require it to make an express finding in respect of each consideration. The first respondent submits that a duty to consider a matter is not to be elevated to a duty to make express reference to that consideration or reach a particular conclusion in respect of the consideration, relying on Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290; [2013] FCAFC 141 (Salahuddin) at [22]-[24], [29] and [34].

41    The appellants submit that Li and Sun are authority for the proposition that the Tribunal is required to make findings of fact as to whether the appellant’s claims, including those which arose under regs 1.15A(3)(a)(iii), (b)(ii) and (c), are factually accurate, so as to inform their consideration under reg 1.15A(2). The appellant submits that those cases were correctly decided.

42    In support of their second ground, the appellants argue that whether the criterion in s 5F(2)(d) that the persons live together, or do not live separately and apart on a permanent basis, had to be satisfied at the time of the decision. The appellants submit that his Honour erred by holding that it was unnecessary for the Tribunal to answer the question of whether the persons were cohabiting at the time of the decision.

43    The Minister submits that the question of cohabitation could potentially be relevant to a finding regarding the genuineness of the relationship, but this does not mean that the Tribunal was required to make a specific finding as to whether the persons were cohabiting at the date of the decision. The Minister submits there was no error on the part of the primary judge in so holding.

Consideration

The first ground

44    It is necessary to bear in mind the boundaries of the appellants’ argument. Their argument that the Tribunal must make a finding upon each of the relevant matters does not rely on s 368(1)(c) of the Act, which 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 requires the Tribunal to set out the findings of fact which the Tribunal considered to be material to the decision it has made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [9]-[10], [34], [68]. A court may draw an inference that a matter not mentioned in the written statement was not considered by the Tribunal to be material to its decision: Yusuf at [5], [35], [69], [217]. The appellants do not argue that the absence of findings about relevant matters means that an inference should be drawn that they were not taken into account (in the sense that the Tribunal failed to apply an active mental process to them).

45    The appellants’ argument is more fundamental. Their argument is that the requirement in reg 1.15A(2) that the Minister “consider” the matters set out in reg 1.15A(3) means that the Tribunal (standing in the shoes of the Minister) must make findings upon each of those matters. The argument continues that the Tribunal failed to comply with reg 1.15A(2) by failing to make findings upon the extent of pooling of Ms He’s and Mr Xu’s financial resources, their living arrangements and evidence of others attesting to their relationship.

46    The appellants’ argument that the Minister must make findings upon each of the matters in reg 1.15A(3) necessarily starts with the premise that the Minister is required to take each of those matters into account, in the sense of applying an active mental process to those matters. The Minister cannot be required to make findings upon matters that he or she is not required to think about. That makes it necessary to commence by identifying what matters the Minister must consider.

What matters does reg 1.15A(2) and (3) require the Minister to consider?

47    The Tribunal was ultimately required to decide whether it was satisfied that the criteria set out in cl 801.221(2) of Sch 2 were satisfied. One criterion is that the visa applicant is the “spouse” of her sponsor at the time of the decision. This required the Tribunal to determine whether it was satisfied that Ms He and Mr Xu met the definition of “spouse” in section 5F of the Act. That definition requires the Tribunal to be satisfied that the persons are in a “married relationship”, which in turn requires satisfaction as to the existence of the four conditions specified in s 5F(2). Those conditions are:

(a)    that the persons are married under a marriage valid for the purposes of the Act;

(b)    that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others;

(c)    that the relationship is genuine and continuing; and

(d)    that they live together or do not live separately and apart on a permanent basis.

48    Regulation 1.15A(2) requires that when the Minister determines whether the conditions in s 5F(2) of the Act exist, the Minister must “consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”.

49    Regulation 1.15A(3) then sets out four principal matters in paragraphs (a) to (d): the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the persons’ commitment to each other. Regulation 1.15A(3) also sets out various specific matters, fifteen in total, identified within paragraphs (a) to (d) and numbered with Roman numerals.

50    The Minister is required 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.

51    Section 5F of the Act gives the word “spouse” a narrower definition than its ordinary meaning by imposing the four conditions that are required to be satisfied. The definition seems designed principally to avoid sham or contrived marriages being used to obtain the grant of visas. The conditions that the persons must have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship be genuine and continuing are impressionistic and evaluative: Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 at [40]. The requirement of reg 1.15A(2) that the Minister must consider all the circumstances of the relationship recognises that the nature of marital relationships is infinitely varied and incapable of being fully described. The presence or absence of any particular circumstance in a marriage does not necessarily mean that the marriage is or is not genuine. However, reg 1.15A(3) sets out particular circumstances that the Minister is required to consider, presumably on the basis that these circumstances are considered to be of particular relevance or significance to determining whether a marriage satisfies the conditions set out in s 5F(2) of the Act.

52    The matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider: see Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at [51]. This requires a decision-maker to bring an active intellectual process to each of those matters: Tickner v Chapman (1995) 57 FCR 451 at [462], [476], [495]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45] (and the authorities cited therein). In other words, the decision-maker must actively think about each such matter. Further, the term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant matters: Bondelmonte v Bondelmonte (2017) 341 ALR 179; [2017] HCA 8 at [43]. The requirement to give proper, genuine and realistic consideration to a matter necessarily incorporates the application of an active intellectual process. These authorities do not suggest that a requirement to “consider” a matter may not require a decision-maker to do more in an appropriate statutory context.

The authorities

53    In statutory provisions, the expressions “have regard to” and “take into account” can usually be regarded as synonyms for “consider”. In most statutory contexts, expressions such as these may merely require the decision-maker to bring active intellectual process and give proper, genuine and realistic consideration to a relevant matter. Other statutory provisions may, by their terms or their manner of operation, require a determination to be made, or a conclusion to be formed, upon a relevant consideration. For example, in Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501; [2012] FCA 266, Jagot J observed that procedural fairness required the Minister to ordinarily treat the best interests of the visa holder’s children as a primary consideration when deciding whether to cancel a visa under s 501 of the Act. Her Honour held that the Minister was required to make a determination as to what was in the best interests of the children in order to be able to assess whether their best interests were outweighed by other relevant factors: see also Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27; [2012] FCA 897; Tauariki v Minister for Immigration and Citizenship (2012) 135 ALD 51; [2012] FCA 1408; Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; [2014] FCAFC 28. These cases assist to demonstrate that what the word “consider” requires a decision-maker to do must depend upon the particular statutory context in which that word is used.

54    In Li, Jessup J considered reg 1.15A(3) of the Regulations, which at that time required the Minister to “have regard to all of the circumstances” and was, in substance, a composite version of the current reg 1.15A(2) and (3). Despite these differences, that version is not relevantly distinguishable from the current version. The visa applicant had provided evidence to the Tribunal that she and her sponsor intended to have a baby. While the Tribunal mentioned that claim in its written statement, it made no finding as to whether it accepted or rejected the claim. His Honour held at [24]-[28]:

[24]    …It is at this point, in my view, that the Tribunal’s treatment of the appellant’s case fell short of what was required. The Tribunal noted that both the appellant and her sponsor had stated their intention to have a baby, but it made no finding as to whether it accepted their evidence in that regard…

[25]    …A reader of the Tribunal’s decision does not know whether the evidence was rejected; or whether it was accepted in point of fact but considered to be of insufficient weight to affect the final conclusion … It is sufficient that the joint intention to have a baby was something which the appellant put forward in support of her application. It was, I consider, incumbent upon the Tribunal to decide for itself whether the intention existed as a fact (or clearly to dismiss it as inconsequential) for the purpose of including it within, or excluding it from, the “circumstances” to which the Tribunal would then have regard under reg 1.15A(3).

[26]    In the passage which I have set out in par 5 above, the Tribunal said that it had made its finding “on the basis of the entirety of the circumstances of the relationship”. The difficulty with this statement is that it does not reveal what the circumstances were ... My concern arises from the fact that the Tribunal here appears to have glossed over, as it were, the intermediate stage. That is an important stage, because it links what is otherwise just a miscellany of information to the statutory criteria.

[27]    …As mentioned above, I consider that the obligation to identify the circumstances by reference to which the Tribunal makes its decision under reg 1.15A is implicit in the way sub-reg (3) is expressed…

[28]    …However, as I have attempted to explain, the Tribunal’s error was more fundamental than failing to have regard to a relevant consideration: it did not 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...

55    In Sun, Reeves J was concerned with reg 1.15A in its current form. The appellant argued that the Tribunal had failed to make findings upon relevant matters when deciding that the visa applicant’s relationship with her husband was not a genuine and continuing one. The Minister argued that by requiring the Tribunal to identify each and every circumstance of the relationship and make findings of fact in respect of all those circumstances, the judgment in Li was plainly wrong.

56    However, Reeves J concluded that in Li, Jessup J had not held that the Tribunal is required to identify every circumstance of the relationship or to make findings of fact as to all the circumstances of the relationship. Justice Reeves considered that Jessup J had held that for the Tribunal to “have regard to” all the circumstances of the married relationship, as was required by reg 1.15A(2), it had to identify what the relevant circumstances were and make any necessary findings of fact for that purpose. Only then could the Tribunal comply with the command to consider (or have regard to) all the circumstances of the case. His Honour regarded Jessup J’s point as compelling.

57    Justice Reeves held that the word “all” in reg 1.15A(2) does not require the Tribunal to identify each and every circumstance of the relationship, but requires the Tribunal to identify those circumstances that are “germane” to its task of determining whether the relationship is a married relationship as defined in s 5F(2) of the Act. His Honour held:

[61]    The direction in reg 1.15A(2) therefore essentially requires the Tribunal to identify all of the pertinent circumstances of the relationship that need to be considered in determining whether that relationship is a married relationship, by reference to the matters set out in reg 1.15A(3), and any other matters that are presented by the application before it. This identification process may require the Tribunal to make findings of fact so as to include, or exclude, particular matters as circumstances based upon the exigencies of the relationship in question. In Li, the intention to have a child was considered by Jessup J to be such a matter. It follows that I do not consider that Jessup J was plainly wrong in Li in holding that the Tribunal committed a “more fundamental” error by failing to approach its task in the manner described above. To the contrary, I respectfully agree with his Honour’s reasoning that the “command” in reg 1.15A(2) (in Li, reg 1.15A(3)) dictates this approach.

…

[68]    In short, therefore, there is little, if any, indication in the Tribunal’s statement of reasons that it determined Ms Sun’s application according to the requirements in reg 1.15A(2) to consider all the circumstances of her married relationship, by reference to those matters set out in reg 1.15A(3) and any other such matters that were raised by the materials before it. It therefore did not make its determination as to whether a married relationship existed between Ms Sun and her husband as defined in s 5F(2) by reference to those prescribed circumstances.

58    In Li and Sun it was held that reg 1.15A(2) (or its equivalent) requires the Tribunal to “identify” the pertinent or relevant circumstances of the relationship. We respectfully agree. It is necessary to identify what the relevant circumstances of the relationship are in order to consider those circumstances by applying an active intellectual process and giving proper, genuine and realistic consideration to them.

59    However, reg 1.15A(3) itself identifies each of the circumstances set out in the provision as being relevant to the decision and requires each of those circumstances to be considered. The evidence and other material before the Tribunal may also reveal other relevant circumstances of the relationship that do not fall within reg 1.15A(3), and which instead fall to be considered under s 1.15A(2).

60    In Davis, the appellant argued that the Tribunal had failed to comply with the requirements of s 368 of the Act by failing to record its findings of fact concerning the matters set out in the then reg 1.15A(3) (which was in the same form as in Li). Justice Dowsett held:

[35]    Although subreg 1.15A(3) requires that the Minister ‘have regard to all the circumstances of the relationship including’ the various matters specified, it does not require that the Tribunal make specific findings concerning any of those matters. To the extent that the material dealt with these matters, the Tribunal appears to have considered them and recorded substantial amounts of the relevant material in its reasons. There is no obligation upon a tribunal of fact to make findings as to whether it accepts or rejects every allegation made in the course of evidence.

61    This passage must be read in the context of the particular submission that Dowsett J was ruling upon in Davis. The submission was that s 368 of the Act required the Tribunal to record in its reasons its findings concerning the matters set out in reg 1.15A(3). As has been discussed, in Yusuf it was held that the Tribunal is only required under s 368 to set out its findings on the facts that it regards as material to its decision. Read in the context of the submission that was made, the quoted passage must be understood as describing what the Tribunal is not required to do under s 368. The submission advanced in this case, that it is the word “consider” in reg 1.15A(2) which requires the Tribunal to make findings upon each of the matters in reg 1.15A(3), was not made in Davis, and was therefore not considered by his Honour.

62    In Chey v Minister for Immigration and Citizenship [2007] FCA 871, Kenny J considered a submission that the Tribunal had not specifically addressed all circumstances that reg 1.15A(3) (in the same form as it was in Li) required it to consider. Her Honour said:

51    The Tribunal made no finding about “any joint responsibility for care and support” of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35], reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case.

…

53    Examination of the Tribunal’s reasons in the present case and, in particular, its consideration of the evidence relevant to reg 1.15A(3), also shows that the requisite matters were considered and are reflected in the Tribunal’s findings to the extent they are relevant … Accordingly, I would not infer from the Tribunal’s failure to mention the issue of joint child care and support that the Tribunal did not consider it or any other matter it was bound to consider.

63    In Chey, the appellant’s argument was that the Tribunal had failed to “address” a matter specified in reg 1.15A(3) “as a relevant consideration”. In other words, the argument was to the effect that the Tribunal had failed to give active mental consideration to the specified matter, or had failed to give proper genuine consideration to that matter. As was the case in Davis, in Chey, the judge was not pressed with the submission that “consider” required that findings be made on the specific matters set out in reg 1.15A(3).

64    In Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92 (Pelka), the Full Court was concerned with the question of whether the applicant was “a member of a couple” within the meaning of that expression in s 4 of the Social Security Act 1991 (Cth). Section 4(2)(b) provided that a person was a member of a couple if five conditions were met, including that the relationship was “a marriage-like relationship”. Section 4(3) provided that the decision-maker was to have regard to all the circumstances of the relationship, including the matters specified in that provision. The provision had some similarity to reg 1.15A of the Act.

65    The Minister relied on the following observations of the Full Court in Pelka:

24    There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter (see Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [34]-[38]).

66    These observations must be considered in the context of the facts and circumstances of that case. In Pelka, one of the factors which the Tribunal was required to consider was whether the parties to the relationship were in a sexual relationship. The parties gave evidence on this question. However, the Tribunal found that the evidence was such that it was unable to make a finding one way or another as to whether the parties were or were not in a sexual relationship. Accordingly, in evaluating whether the parties were in a marriage like relationship, the Tribunal treated the question of whether the parties were or were not in a sexual relationship as neutral. The Full Court found that it was not necessary for the Tribunal to give a binary answer to that question. It was sufficient for the Tribunal to have considered the evidence on the question and to have determined that the evidence did not permit the making of a factual finding one way or the other. A similar approach was taken by the Full Court in Paerau at [27], [69] and [119].

67    The Minister submits that it is established that the Tribunal is not required to separately evaluate the specific circumstances of the relationship referred to in reg 1.15A(3), relying upon Zhang at [20]-[21]. We do not accept that Zhang addresses or supports that proposition. The Full Court noted that “the Tribunal did not laboriously evaluate seriatim each of the considerations in reg 1.15A(3)”, but held that the Tribunal did address and have regard to each of the matters which reg 1.15A(3) required. The Court in Zhang was not dealing with the argument put in the present case.

68    The Minister submits that a duty to consider a matter is not to be elevated to a duty to make express reference to that consideration, or reach a particular conclusion in respect of the consideration, relying on Salahuddin at [22]-[24] and [29]. We do not accept that Salahuddin is authority for a proposition of that generality.

69    Support for the appellants’ submission is found in the recent judgment in Singh v Minister for Immigration and Border Protection [2017] FCA 1298, where Charlesworth J said at [26]:

[W]ith the exception of the passages to which I have referred, there is no explicit finding in the Tribunal’s reasons as to its evaluation of the particular subject matter referred to in reg 1.15A(3)(d)(iii). The Tribunal has either implicitly considered (or at least purported to consider) the subject matter, or it has erred by failing to make any assessment at all of the degree of emotional support the parties to the relationship drew from each other.

70    In this case, the question is whether reg 1.15A(2) requires that the Tribunal must make findings upon each of the circumstances set out in reg 1.15A(3). As we have indicated, Davis, Chey and Zhang must be understood in the context of the different submissions upon which the Court was ruling in those cases. The content of a requirement to “consider” relevant matters must depend on the particular statutory context. In our opinion, these authorities do not necessarily provide a barrier to the success of the submission made in this case.

Whether the Minister (or Tribunal) is required to make findings upon each of the circumstances in reg 1.15A(3)

71    The Minister submits that Li and Sun did not decide that reg 1.15A requires the Tribunal to make a finding in respect of each and every circumstance of the relationship. As Reeves J recognised in Sun, Jessup J did not suggest that it is necessary for the Tribunal to make a finding as to the existence or otherwise of every potentially relevant circumstance under reg 1.15A(2), but only to make any necessary findings of fact. Justice Jessup was not required to consider the argument put in this appeal: that the Tribunal is required to make findings of fact regarding every matter set out in the current reg 1.15A(3). Despite that, his Honour’s reasoning also has application to reg 1.15A(3) and, in our respectful opinion, is persuasive.

72    In Li, Jessup J held that the asserted intention of the visa applicant and her husband to have a child was a relevant circumstance of the relationship, and the requirement on the Tribunal to “have regard to” that circumstance meant that the Tribunal was required to make a finding as to whether it accepted their evidence. The Tribunal was required to decide whether it was satisfied that their asserted intention existed as a fact (or dismiss any such intention as inconsequential) in order to include it or exclude it from the “circumstances” to which the Tribunal would then have regard.

73    Regulation 1.15A(3) itself identifies circumstances of the relationship that the Tribunal must consider. It is prescriptive. It deems each of the prescribed circumstances, or matters, to be relevant to the question of whether there is a married relationship. The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances.

74    As has been discussed, the structure of reg 1.15A(3) commences with four principal matters (the principal matters) set out in paragraphs (a) to (d) that must be considered, namely:

(a)    the financial aspects of the relationship;

(b)    the nature of the household;

(c)    the social aspects of the relationship; and

(d)    the nature of the persons’ commitment to each other.

75    There are then set out a series of specific matters (numbered with Roman numerals) relevant to the principal matters. So, for example, when considering “(b) the nature of the household”, the Tribunal is expressly required to consider:

(i)    any joint responsibility for the care and support of children;

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework.

76    In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

(i)    whether there are children and whether there is any joint responsibility for their care and support;

(ii)     what the living arrangements of the persons are; and

(iii)    whether and to what extent there is sharing of the responsibility for housework.

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. 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: cf Paerau at [27], [69] and [119]. 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.

77    So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.

78    The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages.  Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a  legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.

79    The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised 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: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).

Whether the Tribunal failed to make necessary findings

80    In the present case, the question is whether the appellants have demonstrated that the Tribunal failed to make findings upon the matters they rely upon, namely the extent of pooling of financial resources (reg 1.15A(3)(a)(iii)), living arrangements (reg 1.15A(3)(b)(ii)), and evidence of others attesting to the relationship (reg 1.15A(3)(c)(ii)). If the Tribunal failed to do so, then it failed to consider circumstances required to be considered in the evaluation of whether there was a “married relationship”.

81    The Tribunal observed in its reasons that it was required to “have regard to” each of the matters set out in reg 1.15A(3). The Tribunal expressly identified the four principal matters set out in reg 1.15A(3) and stated that these were matters to which, along with all the circumstances of the relationship, regard must be had. The Tribunal noted that evidence produced by Ms He and Mr Xu, if accepted at face value, would support a finding that they were in a married relationship. That evidence concerned their intertwining of financial affairs, their joint bank account, their claim that they cohabitated and their claim that they provide each other with companionship and emotional support and that their relationship is a long-term one. The Tribunal also noted that there was material from family members and others attesting to their relationship. The Tribunal then went on to examine evidence and circumstances which appeared to contradict the evidence relied on by the appellants, before concluding that it was not satisfied that Ms He and Mr Xu were in a married relationship.

82    The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.

83    As to whether the Tribunal made findings upon the extent of any pooling of financial resources, the Tribunal discussed Ms He’s and Mr Xu’s claims to have an intertwining of their financial affairs, finding that they had a joint bank account. The Tribunal referred to what it called “curious financial transactions”, including a withdrawal by Mr Xu of $21,000 in cash shortly after Ms He was granted a provisional partner visa. The Tribunal said that the financial arrangements appeared to be consistent with a scenario where Mr Xu was paid money for his part in the visa application, but went on to say that the financial transactions when taken in isolation did not prove that the relationship was contrived. The Tribunal must be understood to have concluded that it was unable to decide whether the intertwining of financial affairs was designed to ensure that Mr Xu would be paid for a sham marriage. The Tribunal also mentioned some aspects of the evidence relevant to the pooling of financial resources which it did not make findings upon. However, the Tribunal was not required to refer to or make findings upon every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46], Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80], Yusuf at [9]-[10], [77]. Rather, it was required to make findings upon the matters prescribed in reg 1.15A(3). In our opinion, the Tribunal’s reasons demonstrate that it did make findings upon, and therefore considered, the extent of the pooling of financial resources, as was required under reg 1.15A(3)(a)(iii).

84    Regulation 1.15A(3)(b)(ii) requires the Tribunal to consider the persons’ living arrangements. This imports a requirement to consider to their living arrangements throughout the marriage, so far as is revealed by the material before the Tribunal. The evidence of Ms He and Mr Xu was that they had cohabited throughout their marriage. The Tribunal considered that evidence. The Tribunal rejected Mr Xu’s explanation as to why, in his incoming passenger cards, he gave addresses other than the address of the nominated marital home. Further, the Tribunal found that the home visit revealed little evidence that Mr Xu lived there. The Tribunal said it was not prepared to find that Ms He and Mr Xu were credible witnesses. In view of these findings, the Tribunal rejected the appellants’ case that Ms He and Mr Xu had cohabited throughout their marriage.

85    It is true that the Tribunal set out no express finding as to whether Ms He and Mr Xu were cohabiting at the time of the decision. However, an inference is available from the Tribunal’s reasons read as a whole that the Tribunal did make such a finding upon this matter as part of its mental process in making its decision. As we have said, the Tribunal rejected the evidence of Ms He and Mr Xu that they had cohabited throughout their marriage. The appellants advanced no case that Ms He and Mr Xu had lived together for a time, and then separated for a time, but had resumed living together by the time of the hearing before the Tribunal. The Tribunal was not required to speculate about that prospect. The Tribunal was not satisfied that there was ever a genuine and continuing marital relationship. The Tribunal must be understood to have found that it was not satisfied that they had lived together at any time. The Tribunal did consider Ms He’s and Mr Xu’s living arrangements as at the date of its decision as was required under reg 1.15A(3)(b)(ii).

86    Regulation 1.15A(3)(c)(ii) requires the Tribunal to consider “the opinion of the persons’ friends and acquaintances about the nature of the relationship”. The Tribunal noted that Ms He and Mr Xu had provided evidence from family members and others attesting to their relationship. The Tribunal referred to evidence from Mr Xu’s ex-wife and his son. The Tribunal’s reasons reveal no specific findings as to whether it accepted or rejected that evidence, or whether it was unable to reach a conclusion upon that evidence. However, this is not a case in which it should be inferred that the Tribunal failed to make a finding upon the matter as part of its mental process involved in making its ultimate decision. The Tribunal stated that it was not prepared to accept the evidence of Ms He and Mr Xu as credible. It follows from that finding that the Tribunal was not prepared to accept the evidence of the witnesses as reliable. When the reasons are read as whole, it should not be inferred that the Tribunal failed to make a finding upon the relevant matter.

87    For these reasons, the appellants’ first ground of appeal must be rejected. That is not to say that we endorse the Tribunal’s written statement as a model of well-written reasons. As was said in Salahuddin at [23] and [31], where a statute requires that consideration be given to specified matters, it is preferable for a decision-maker to expressly refer to such matters.

The second ground of appeal

88    As to the second ground of appeal, the appellants submit that the primary judge erred in holding that the Tribunal did not have to consider whether the appellant and her sponsor were cohabiting as at the time of the Tribunal’s decision.

89    Section 5F of the Act and cl 801.221(2)(c) of Sch 2 to the Regulations required the Tribunal to consider whether the appellant and her sponsor were living together at the time of the Tribunal’s decision. The Tribunal was also required under reg 1.15A(3)(b)(ii) to consider the “living arrangements of the persons”. As has been discussed, this imported a requirement to make a finding about the living arrangements of Ms He and Mr Xu throughout their relationship including at the time of the Tribunal’s decision, so far as was possible on the material before the Tribunal. The primary judge held that no consideration had to be given to whether Ms He and Mr Xu were cohabiting at the date of the Tribunal’s decision. That was an error.

90    However, the Tribunal must be understood to have found that it was not satisfied that Ms He and Mr Xu had lived together at any time. Accordingly, the Tribunal did consider whether they cohabited at the date of its decision. Therefore, the error identified by the appellants is not a material one.

91    The appeal must be dismissed, with costs.

Associate:

Dated:    14 December 2017