FEDERAL COURT OF AUSTRALIA

Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219

ORDERS

THE COURT ORDERS THAT:

1.    The further amended notice of appeal filed 6 November 2018 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    Mr Williams’ son, Mr Joseph Stephen Williams, died of malignant neurofibromatosis on 7 November 2011. Tragically, Joseph was only 31 years old at the time of his death. At that time he was also a member of Intrust Super Fund.

2    This appeal concerns the decision of the trustee of the Intrust Super Fund, IS Industry Fund Pty Ltd (the first respondent), to pay the whole of the death benefit consequent upon Joseph’s death to Mr Bradley Selvig, his legal personal representative (the second respondent).

3    In brief summary, Mr Williams’ complaint throughout the long history of this matter has been that an “interdependency relationship” existed between him and his son at the time of his son’s death and IS Industry’s decision to pay the death benefit to Mr Selvig was therefore not fair and reasonable in all the circumstances.

4    Before explaining why the expression “interdependency relationship” is central to this appeal, it is convenient to outline its factual context and procedural history in a little more detail.

THE FACTUAL CONTEXT

5    Joseph was born on 22 July 1980. At the age of 4, he was diagnosed with neurofibromatosis. He lived in Ohio, in the United States of America, with his parents, Mr Williams and Ms Katherine Grunwell, until their divorce in about 1999/2000. Following his parents’ divorce, he lived in Ohio with his mother. From 2000 to 2005, he attended College in Pittsburgh and during this period he lived on campus. He would, however, return to his mother’s home in Ohio during College breaks and he also paid regular visits to his father.

6    From September 2005 until November 2010, Joseph lived variously in Pittsburgh, New York and Philadelphia in the United States of America. In November 2010, he commenced working for the Club Med organisation in the Whitsunday Islands, in Queensland, Australia. Upon commencing that employment, he joined the Intrust Super Fund.

7    On 1 May 2011, Joseph took two weeks planned leave and returned to Ohio, where he stayed with his father. At the conclusion of his leave, he was scheduled to commence work at the Club Med resort at Turkoise in the British West Indies. However, at about that time, he was diagnosed with the malignancy that led to his death. As a consequence, he never resumed his employment.

8    In late June 2011, he was admitted to a hospital in Cincinnati, Ohio for palliative care treatment and he remained in hospital until late September 2011. At that point, he was transferred to a hospice in Michigan, near to where his mother was living.

9    Joseph executed his last will on 4 October 2011. He passed away on 7 November 2011. Mr Selvig was appointed as the legal personal representative of his estate on 29 November 2011.

THE PROCEDURAL HISTORY

10    IS Industry notified Mr Williams, Ms Grunwell and Mr Selvig of its decision to pay the death benefit to Mr Selvig by letter dated 7 March 2013. Shortly thereafter, Mr Williams unsuccessfully sought to have IS Industry review that decision. Then, relying upon the provisions of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (SRC Act), Mr Williams made a complaint about IS Industry’s decision to the Superannuation Complaints Tribunal.

11    When it is reviewing a decision of a trustee the subject of a complaint of the kind Mr Williams made, s 37(6) of the SRC Act requires that the Tribunal “must” affirm the trustee’s decision if it is satisfied that, in its operation in relation to the persons affected – in this matter, Mr Williams and Mr Selvig – the decision was “fair and reasonable in the circumstances”. The authorities with respect to the Tribunal’s obligations when considering such a complaint were helpfully reviewed by Griffiths J in Friar v Brown [2015] FCA 135 at [72]–[75].

12    On 17 March 2015, after considering Mr Williams’ complaint, the Tribunal affirmed IS Industry’s decision.

13    As he was entitled to do under s 46 of the SRC Act, Mr Williams next appealed that determination to this Court. Appeals under that provision of the SRC Act are limited to a question of law.

14    Mr Williams was successful in that appeal. In May 2016, the Tribunal’s determination was set aside and it was directed to hear and determine Mr Williams’ complaint according to law: Williams v IS Industry Fund Pty Ltd [2016] FCA 524.

15    On 9 March 2017, following its reconsideration of Mr Williams’ complaint, the Tribunal again affirmed IS Industry’s decision. Again relying upon s 46 of the SRC Act, Mr Williams appealed that second Tribunal determination to this Court. On that appeal, he was unsuccessful: Williams v IS Industry Fund Pty Ltd [2018] FCA 529. That judgment led, in turn, to the present appeal which is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is trite to say that the purpose of this appeal is the correction of error on the part of the primary judge: see, for example, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [30] per Gageler J.

THE EXPRESSION “INTERDEPENDENCY RELATIONSHIP”

16    Returning to the expression “interdependency relationship”, the most convenient way to explain why that expression is central to this appeal is to set out the passages of the first appeal judgment mentioned above ([2016] FCA 524) where that question was considered. They are as follows ([at [14]–[17]):

14     … That expression is used in the Rules of the Intrust Super Fund and is also to be found in the [Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act)]. The Rules of the Intrust Super Fund are set out in the Trust Deed governing the operation of the Fund. Relevantly, those Rules state that, following the death of a member of the Fund, the death benefit payable in respect of that member may be paid, as IS Industry decides to:

(a)    nominated beneficiaries (if any) or other dependants of the deceased member; or

(b)    the deceased member’s legal personal representative.

15    A number of the terms used in this Rule are defined elsewhere in the Trust Deed. The expression “nominated beneficiary” is defined to mean one or more dependants, or the legal personal representative of a member, nominated by the member as a nominated beneficiary. Further, the expression “dependant” is defined to mean the spouse, child, person in an interdependency relationship, or any other person financially dependent on the deceased member. Finally, the expression “interdependency relationship” is defined as having the same meaning as is contained in the SIS Act and the Regulations prescribed under that Act.

16    The expression “interdependency relationship” is defined in s 10A of the SIS Act as follows:

Interdependency relationship

(1)    Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they live together; and

(c)    one or each of them provides the other with financial support; and

(d)    one or each of them provides the other with domestic support and personal care.

(2)    Subject to subsection (3), for the purposes of this Act, if:

(a)    2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and

(b)    they do not satisfy the other requirements of an interdependency relationship under subsection (1); and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;

they have an interdependency relationship.

(3)    The regulations may specify:

(a)    matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and

(b)    circumstances in which 2 persons have, or do not have, an interdependency relationship.

…

17    As is anticipated by the words “subject to” in ss 10A(1) and (2) above and s 10A(3) itself, the [Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations)] set out various criteria which must be taken into account in determining whether two people have, or had, an “interdependency relationship”. In particular, reg 1.04AAAA states:

(1)    For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

(a)    all of the circumstances of the relationship between the persons, including (where relevant):

(i)    the duration of the relationship; and

(ii)    whether or not a sexual relationship exists; and

(iii)    the ownership, use and acquisition of property; and

(iv)    the degree of mutual commitment to a shared life; and

(v)    the care and support of children; and

(vi)    the reputation and public aspects of the relationship; and

(vii)    the degree of emotional support; and

(viii)    the extent to which the relationship is one of mere convenience; and

(ix)    any evidence suggesting that the parties intend the relationship to be permanent;

(b)    the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

(2)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and

(b)    one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

Examples of care normally provided in a close personal relationship rather than by a friend or flatmate:

1.    Significant care provided for the other person when he or she is unwell.

2.    Significant care provided for the other person when he or she is suffering emotionally.

(3)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that they are temporarily living apart.

Example for paragraph (3)(c):    One of the persons is temporarily working overseas or is in gaol.

(4)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.

…

17    Having set out these provisions, it is important to record that, throughout the history of this matter, Mr Williams has accepted that the only basis upon which he could be treated as a “dependant” within the meaning of the Trust Deed (see [15] set out at [16] above) was if his son and he were in an “interdependency relationship”, within the meaning of s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act). He has also accepted that the Tribunal correctly identified that, under s 10A of the SIS Act, one of the criteria for an “interdependency relationship” was that the two persons concerned have to “live together” (s 10A(1)(b)). With respect to those criteria, it is also important to note that it has at all times been accepted that Mr Williams and his son had a close personal relationship within the terms of the criterion in s 10A(1)(a) of the SIS Act.

THE TRIBUNAL’S SECOND DECISION

18    After summarising the procedural history to Mr Williams’ complaint (at [1]–[16]), the apposite provisions of both the Trust Deed and the relevant legislation (at [17]–[21]) and the respective positions advanced by the parties (at [22]–[24]), the Tribunal identified that the nature of its task was: to determine whether IS Industry’s decision was “fair and reasonable” in the circumstances ([25]–[26]). It then briefly outlined the materials it had before it and what matters it had taken into account in determining whether an “interdependency relationship” existed between Mr Williams and his son ([27]–[34]).

19    Thereafter, by reference to the criteria set out in s 10A(1) of the SIS Act (set out above), the Tribunal made the following findings, or drew the following conclusions:

(a)    at [34] – that the “Tribunal does not believe the facts on offer support a finding that immediately prior to [Joseph’s] death an interdependency relationship existed. On 7 November 2011, [Joseph] was 31 years of age. At the end of April 2011, he had returned to his home county from working in Australia, to enjoy a two week vacation with [Mr Williams], prior to taking up another work engagement with [Club Med] in a new overseas country”;

(b)    at [35] – that the relationship between Mr Williams and his son “can be properly characterised as a normal, loving one, simply bearing the hallmarks of a father/adult son relationship”;

(c)    at [36] – that “the facts raised … to show that [Joseph] considered [Mr Williams’ home] as his principal place of residence, namely [Joseph’s] voter registration, driver’s licence and doctor attendance, all concentrated around [Mr Williams’] residence and environs, merely go to the issue of the closeness of their relationship”;

(d)    at [39] – after describing (at [38]) a Facebook post Joseph had made on 31 May 2011 setting out his future employment plans, that “[Joseph] still considered that he would be taking up a new role with [Club Med] in July 2011 and was not intending to stay with [Mr Williams] beyond the start date of his new assignment with [Club Med]”;

(e)    at [40] – that, “[w]hile the Tribunal accepts the facts support that [Joseph] and [Mr Williams’] ‘(had) a close personal relationship’ as required by s10A(1)(a) of the SIS Act, it does not accept [Joseph] and [Mr Williams] satisfied s10A(1)(b) immediately prior to [Joseph’s] death, insofar as they could be described in terms whereby: ‘they live together’. To the contrary, the facts only establish that [Joseph] had returned to [Mr Williams’] home for a brief holiday, prior to setting off again to work for [Club Med] in another foreign country overseas”;

(f)    at [42] – that “[t]he logic is unsustainable; namely, that despite the fact that [Joseph] and [Mr Williams] did not live together, prior to his being hospitalised, that somehow his physical absence in hospital could now ‘add-back’ that missing dimension”;

(g)    at [43] – for the sake of completeness, the Tribunal also noted that “[Joseph], in the weeks immediately before his death, chose to be transported to a hospital away from [Mr Williams] and closer to [Ms Grunwell] in September 2011. He also signed a Power of Attorney and a Will both dated 4 October 2011 removing [Mr Williams] from any position that would allow him to make decisions on behalf of [Joseph]. The Tribunal notes that [Mr Williams] has been unsuccessful in his challenge of the validity of these documents in an overseas court”; and

(h)    at [44] – finally, that it considered “[Joseph] did not see himself as ‘living together’ with [Mr Williams] immediately before his death. Neither was there any evidence that, should he, hypothetically, have gone into remission and emerged from hospital that he necessarily would have recuperated, as in lived together, with [Mr Williams]”.

THE PRIMARY JUDGMENT

20    The primary judge was unpersuaded that the Tribunal had made any error of law in its second decision. In summing up, his Honour concluded ([2018] FCA 529 at [22]) that:

… Here, all that the Tribunal has done is to undertake again the task of deciding whether the decision under review was fair and reasonable, as it was required by the remitter order. It was [sic – has] done that without making any error of law.

21    Earlier in his judgment, his Honour explained why he had reached this conclusion in the following terms (at [19]–[20]):

19    In essence, the Tribunal has viewed the whole of the evidence as disclosing neither more nor less than an intended fortnight’s visit by the deceased to his father after years of living and working abroad, prior to the intended taking up abroad of another work assignment, which was extended by a need for extensive dental treatment and an emergence of an underlying medical condition (at [37]).

20    The Tribunal noted that, on 16 June 2011, the deceased was admitted to hospital and thereafter gradually deteriorated until his death in November 2011, never again setting foot in Mr Williams’ home. The Tribunal just was not persuaded on the evidence before it that the deceased and Mr Williams had ever lived together in an interdependency relationship, as defined …

THE ISSUES RAISED BY THE NOTICE OF APPEAL

22    Mr Williams’ further amended notice of appeal raised four grounds as follows:

1.    The Federal Court of Australia erred by failing to find that the … Tribunal erred in law by failing to make findings about and take into account relevant considerations, consisting of the financial support, domestic support, personal care, and the degree of emotional support involved in the relevant relationship, as required by reg 1.04AAAA(1)(a) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).

2.    The Federal Court of Australia erred by failing to find that the … Tribunal erred in law by misconstruing the phrase “live together” in section 10A(1)(b) of the Superannuation Industry (Supervision) Act1991 (Cth) as requiring or meaning physical co-habitation in the one dwelling.

3.    The Federal Court erred by failing to find that the … Tribunal erred in law by failing to make findings about, and take into account, relevant considerations about whether the living arrangements between [Mr Williams and his son] were temporary, as required by reg 1.04AAAA(3) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).

4.    The Federal Court erred by failing to find that the … Tribunal erred in law by failing to ask the correct question under section 10A(2)(c) of the Superannuation Industry (Supervision) Act1991 (Cth) and [reg] 1.04AAAA(4)(c) of the Superannuation Industry (Supervision) Regulations 1993 [sic – 1994] (Cth).

(Errors in original)

CONSIDERATION

Ground of appeal 1 – the criteria in ss 10A(1)(c) and (d) and the requirements of reg 1.04AAAA(1)(a)

23    For the purposes of this ground of appeal, Mr Williams relied heavily on the Full Court judgment in He v Minister of Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 (Siopis, Kerr and Rangiah JJ). In He, the Court was concerned with the definition of the word “spouse” and, in particular, the constituent phrase “married relationship” in s 5F of the Migration Act 1958 (Cth). That definition contained, in s 5F(3), a provision similar to s 10A(3) of the SIS Act above, which allowed the regulations to specify matters to be taken into account in determining whether the relationship existed. Subregulation (2) of the regulation in issue in He (reg 1.15A of the Migration Regulations 1994 (Cth)) required that the relevant Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. Subregulation (3) then set out four sets of matters (15 in all), each of which related to a different feature of a married relationship.

24    In He, the Court considered the construction and operation of reg 1.15A at some length. Relevant to this matter, it held, at [58], that reg 1.15A(2) above “… requires the Tribunal to ‘identify’ the pertinent or relevant circumstances of the relationship”. It added that: “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.” One of the main issues in He was whether reg 1.15A(2) required the Tribunal to make a finding as to the existence or otherwise of “every potentially relevant circumstance” (emphasis in original), or only required the Tribunal to make “any necessary findings of fact” (emphasis in original) (see He at [71]). The Court concluded it was the latter (see He at [71]).

25    Then, by reference to the judgment of Jessup J in Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354, the Court proceeded to explain the content of that requirement as follows (at [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.

26    In the next paragraph, the Court highlighted the “prescriptive” requirements of reg 1.15A(3) as follows (at [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.

27    Earlier in its reasons, the Court had made some similar observations about the application of reg 1.15A(3) as follows (at [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 [reg] 1.15A(2).

(Emphasis in original)

28    In assessing whether or not a decision-maker’s reasons revealed the requisite “active intellectual process and … proper, genuine and realistic consideration” to the relevant circumstances, the Court referred to the apposite authorities and made the following observations (at [79]):

… 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).

29    Based upon these passages from He, Mr Williams submitted that:

15.1    The Tribunal must ‘identify’ the pertinent or relevant circumstances of the relationship. [He at [58]] This includes an identification of all of the relevant circumstances that the evidence and other material reveal, beyond those that are prescribed in the Regulations. [He at [59]]

15.2    The Tribunal is “required to decide whether it was satisfied that [the relevant matters advanced by the Appellant] existed as a fact (or dismiss [them] as inconsequential) in order to include it or exclude it from the ‘circumstances’ to which the Tribunal would then have regard”. [He at [72]]

15.3    After identifying all of the relevant circumstances, the Tribunal was then required to apply an “active intellectual process and giving proper, genuine and realistic consideration to them.” [He at [58]]

15.4    The failure of the Tribunal to provide findings with respect to each of those relevant circumstances of the relationship may lead to an inference that the Tribunal made no such finding as part of his or her mental process when making the decision. [He at [78]–[79]]

30    Consequently, Mr Williams claimed that the Tribunal had committed an error of law by failing to make findings on, or have any regard to, the written submissions he made to it concerning the level of personal care, financial and domestic support he provided to his son as described in ss 10A(1)(c) and (d) of the SIS Act. Similarly, he submitted the Tribunal failed to consider his submission that the “facts concerning the ownership, use and acquisition of property demonstrate a deep interdependency” as described in the matters listed in reg 1.04AAAA(1)(a). As for the primary judge, Mr Williams submitted his Honour had erred by holding that this question raised a question of fact and not one of law. This was an error, so he submitted, because:

The question raised (in substance) whether the Tribunal complied with the command in reg 1.04AAAA(1)(a) of the SIS Regulations to take into account “all of the circumstances of the relationship”, including the specified matters; and … [that was] a question of law.

31    There is, in our view, a fundamental defect in these contentions. It arises from the fact that the words in parenthesis, “where relevant”, after the word “including” in the text of reg 1.04AAAA(1)(a) in this matter are not included in the regulation under consideration in He. That omission means that reg 1.04AAAA(1)(a) does not itself identify “each of the circumstances set out in [it] as being relevant to the decision and [require] each of those circumstances to be considered” (see He at [59]). Instead, reg 1.04AAAA(1)(a) only requires the listed circumstances to be considered where they are relevant to the determination of the existence of the interdependency relationship in question. It follows that we do not consider the observations in He at [59], [73] and [79] above, with respect to regs 1.15A(2) and (3), apply to the Tribunal’s determination under reg 1.04AAAA(1)(a) in this matter.

32    However, that leaves the question whether the Tribunal committed an error with respect to its more confined obligations as outlined in He in relation to the circumstances listed in reg 1.04AAAA(1)(a). As well, there are two other aspects of the judgment in He that bear upon the Tribunal’s decision-making function in this matter. They arise from two similarities between the text of the regulation under consideration in He and sub-reg 1.04AAAA(1)(a). The first is that, since the words “all of the circumstances of the relationship” appear in both reg 1.15A(2) and reg 1.04AAAA(1)(a), the observations at [58] of He apply with equal force to the Tribunal’s determination in this matter. Specifically, the Tribunal in this matter was required to identify what the relevant circumstances of the relationship in question in this matter were in order to properly discharge its decision-making function. The second relates to the words “must consider” in reg 1.15A(2) and the corresponding words “are to be taken into account” in sub-reg 1.04AAAA(1)(a). Having regard to the similarity in text and context between those two phrases, we agree with Mr Williams’ submissions that they apply the same level of obligation to the Tribunal’s decision-making function in this matter, as was discussed generally in He. That is to say, the Tribunal in this matter was compelled to consider the circumstances it identified as relevant and to apply an active intellectual process in determining whether, in the circumstances, the proffered relationship was an interdependency relationship as defined.

33    The question then is whether the Tribunal duly complied with those requirements. Before turning to answer that question, it is important, first, to reiterate the nature of the decision-making task the Tribunal was required to perform. At its highest level, it was to decide whether IS Industry’s decision was fair and reasonable. It was required to make that determination having regard to the particular kind of interdependency relationship Mr Williams claimed existed between him and his son in the period leading up to his son’s death, namely a father/son relationship. Critical to that determination was the definition of an “interdependency relationship” in s 10A(1) of the SIS Act. Pivotal to whether the father/son relationship advanced by Mr Williams met that definition was the question posed by the criterion in s 10A(1)(b): whether Mr Williams and Joseph “live[d] together” during the period prior to Joseph’s death.

34    In the course of answering that pivotal question in the negative, the Tribunal stated that it had relied upon “the facts on offer” (see at [34] set out at [19(a)] above). In context, that statement plainly referred to the factual matters that were advanced by each party in the course of outlining the respective positions they had put to the Tribunal. Those matters were set out at [22]–[24] of the Tribunal’s reasons. It was with respect to those facts that the Tribunal proceeded to record its findings and make its conclusion commencing at [34] of its reasons (summarised at [19] above).

35    As that summary of those findings and conclusions reveals, on that pivotal question, the Tribunal concluded that Mr Williams and his son did not live together immediately prior to Joseph’s death. It based that conclusion on its findings about Joseph’s work and living arrangements in the period leading up to, and immediately after, May 2011 and his future intentions at that time with respect to those arrangements. In particular, it found that, in May 2011, Joseph was visiting his father for a brief holiday after having worked and lived abroad since November 2010 and with the intention of resuming that employment and that mode of living at the conclusion of his holiday. Its conclusion on that pivotal question led, in turn, to its ultimate conclusion, recorded at [45] of its reasons, that Mr Williams “was not in an interdependency relationship with [his son]” (emphasis added) as defined in s 10A(1) of the SIS Act.

36    This brief review of the Tribunal’s dispositive reasoning demonstrates, in our view, that it complied with all of the requirements outlined above. In particular, from the facts available to it, it identified the circumstances of the relationship advanced by Mr Williams that were relevant to the pivotal question it had to determine. In that process, it made all the necessary findings of fact, specifically as to where Joseph worked and lived in the months and years leading up to his death. It then engaged in an active intellectual process in determining that, in those circumstances, the relationship advanced by Mr Williams did not constitute them living together in the terms of the criterion in s 10A(1)(b) of the SIS Act and, therefore, did not meet the definition of an interdependency relationship in s 10A(1).

37    The Tribunal did not, therefore, make any of the errors alleged by Mr Williams as outlined at [29] above. Nor did it err by failing to consider Mr Williams’ submissions regarding the matters described in ss 10A(1)(c) and (d), or the matters listed in reg 1.04AAAA(1)(a) as alleged at [30] above. The latter is so, for a number of additional reasons. First, since all of the criteria in s 10A(1) must be met for an interdependency relationship to exist, once the Tribunal reached its negative conclusion on one of those criteria, it was unnecessary for it to consider whether the criteria in s 10A(1)(c) or (d) may have been met. Furthermore, it was for the Tribunal to determine what circumstances were relevant to its determination concerning the criterion in s 10A(1)(b). Thus, it can be readily inferred from its failure to expressly mention those two criteria in the crucial part of its reasons that it did not consider they had any relevance to that determination.

38    The same observations apply to the relevance of the circumstances listed in the body of reg 1.04AAAA(1)(a). From the Tribunal’s failure to mention any of those circumstances in the crucial part of its reasons, it can also be readily inferred that the Tribunal did not consider them to be requisitely relevant. This conclusion is separately supported by the fact that those listed circumstances were patently irrelevant to the particular kind of interdependency relationship that was advanced by Mr Williams, namely that of father and son. Self-evidently, the duration of such a relationship is fixed by the birth of the son and by the death of one of them. Hence the circumstance described in reg 1.04AAAA(1)(a)(i): the duration of the relationship; or that described in reg 1.04AAAA(1)(a)(iv): the degree of commitment to a shared life; or that described in reg 1.04AAAA(1)(a)(viii): the extent to which the relationship is one of mere convenience; or that described in reg 1.04AAAA(1)(a)(ix): the intended permanence of the relationship; were all patently irrelevant circumstances. Furthermore, it would be verging on the absurd to suggest that the questions posed by the circumstances described in reg 1.04AAAA(1)(a)(ii): whether or not a sexual relationship exists; or that described in reg 1.04AAAA(1)(a)(v): the care and support of children; had any relevance to a father/son relationship. Similar observations may be made about the relevance of all of the other listed circumstances to the particular relationship with which the Tribunal was concerned. Accordingly, the Tribunal was not, in the circumstances of this matter, required to laboriously mention and exclude seriatim all of those circumstances in its reasons in order to avoid committing the sorts of errors alleged by Mr Williams.

39    It follows, in our view, that the Tribunal duly performed its task under s 10A(1) of the SIS Act and reg 1.04AAAA(1)(a) in accordance with the principles outlined in He. It follows further that the primary judge did not make any error in his review of, and conclusions about, those aspects of the Tribunal’s decision. For these reasons, neither the Tribunal, nor the primary judge, made any of the errors as alleged under this ground of appeal. This ground must therefore be rejected.

Ground of appeal 2 – “live together”

40    Under this ground of appeal, Mr Williams contended that the Tribunal erred by misinterpreting the phrase “live together” in s 10A(1)(b) of the SIS Act, by requiring that the two persons in the relationship must be “physically cohabiting under the one roof”. That misinterpretation was said to be evident in the last sentence of [40] of the Tribunal’s decision (see at [19(e)] above). Mr Williams submitted that, properly construed, the phrase “live together” in that subsection “needs to be read in conjunction with the remainder of s 10A(1), which also looks at the closeness of the relationship, and the level of financial and domestic support that one or both provide to each other”. When that phrase is read in that context, Mr Williams submitted that it described “a household that two people share and contribute to or rely on, which shows that the relationship is an interdependent one”.

41    Relying primarily upon the judgment of Smith J in Clarke v Clarke [1964] VR 773, Mr Williams proposed a number of examples where, so he claimed, a “clear interdependency relationship” existed between two people who were not living under the same roof. One example related to the issue that was considered in Clarke. That is, whether a child who was attending boarding school was “ordinarily residing with” her father. With respect to that situation, Mr Williams relied upon the following observations of Smith J (at 776):

… the fact that more time was being spent at boarding school than at the parents’ home is, in my view, entirely outweighed by the circumstances that the infant’s permanent home had at all times, until February 1960, been with her parents, that the time spent at the school was for the special purpose of education, that the connexion with the parents’ home and household had never been severed, and that they obviously intended to maintain the connexion while the infant’s mode of living remained under their control …

42    Mr Williams also placed some reliance on two other examples mentioned in Clarke where people who spent long periods away from home were still held to be living with their spouse and family. They were a ship’s officer and a wool buyer, as follows (at 776):

… if a ship’s officer spends all but a few weeks of the year at sea, and spends those weeks with his wife and children in the home in which they live, it would be an appropriate use of language to say that he ordinarily resided with his wife … The same would be true of, say, a wool buyer whose occupation prevented him from being at home with his wife and family for more than a few weeks in the year, and who followed a regular round of sales and spent longer periods lodging at particular hotels than at the home. In such cases the strength of the bond that ties the man to his family and their household makes up for the short duration of his stays in the home.

43    In our view, there is nothing in the last sentence of [40] of the Tribunal’s reasons to support Mr Williams’ contention that the Tribunal misconstrued the expression “live together” in the manner he has alleged. On a fair reading of the Tribunal’s reasons and one not astute to detecting error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), all the Tribunal did in that sentence was to sum up the effect of the conclusions it had reached at [34]–[39] of its reasons concerning the non-existence of an interdependency relationship between Mr Williams and his son.

44    Hence, in that sentence, it said that the brief holiday Mr Williams and his son had together in May 2011 was on the facts “the contrary” of them living together. The Tribunal did not say that contradiction arose from them not physically cohabiting under the one roof. Rather, as has already been observed above, it referenced the established pattern of Joseph’s working and living arrangements leading up to that brief holiday and his stated intention to continue that pattern once that holiday had come to an end. That pattern is not, in our view, analogous to the circumstances of the child at boarding school, or of the ship’s officer, or of the wool buyer described in Clarke. Instead, it described a young man living separately from his father and near to his place of work, but at the same time maintaining contact, and a close and loving relationship, with his father and occasionally spending holiday periods with him.

45    For these reasons, we do not consider the Tribunal made any error of law with respect to its treatment of the expression “live together” in s 10A(1)(b) of the SIS Act. If the Tribunal made no such error, it necessarily follows that the primary judge did not err in failing to detect that non-existent error. This ground of appeal must also be rejected.

Ground of appeal 3 – temporarily living apart

46    This ground of appeal can be disposed of briefly. The established pattern of Joseph’s life prior to May 2011, as found by the Tribunal on the facts before it, did not describe two people with a close personal relationship who were not living together because “they are temporarily living apart” within the terms of reg 1.04AAAA(3)(c). It described the contrary, namely two people who were temporarily living together for a brief holiday period, but who otherwise lived apart. No error of law has been demonstrated by this ground of appeal and it therefore must be rejected.

Ground of appeal 4 – the hypothetical scenario

47    This ground of appeal seeks to challenge the Tribunal’s conclusions in [42] and [44] of its reasons (see at [19(f)] and [19(h)] above). Mr Williams described this alleged error of law in the following terms:

Here, the deceased was living in hospital immediately prior to his death. Accordingly, the correct question to ask is whether the deceased would be living with [Mr Williams] if he was not in hospital. This question needs to consider all of the facts and circumstances at that time, including the fact that the deceased did not take up any new employment assignment, and that he had a terminal medical condition.

48    There is no error of law apparent in either of these conclusions. To the contrary, they are entirely consistent with the Tribunal’s findings and conclusions, all of which were properly made, and reached, as discussed above. Accordingly, this fourth ground of appeal must also be rejected.

CONCLUSION

49    Since none of Mr Williams’ grounds of appeal has any merit, his appeal must be dismissed.

50    The Court sought the assistance of the Queensland Bar to provide a contradictor, in default of those interested in the result wanting to participate in the appeal. The Court received considerable assistance from Ms Florence Chen, for which it is very grateful. Such assistance of the Bar epitomises the independent Bar’s service to the Court and to the public, and its intimate involvement in the judicial process, and so in the exercise of judicial power itself: Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at [74] per Gaudron J. The request was made in order to ensure the Court had all relevant arguments. In the circumstances, Mr Williams should not be burdened with the costs of that assistance.

51    The orders are:

1.    The further amended notice of appeal filed 6 November 2018 be dismissed.

2.    There be no order as to costs.

Associate:    

Dated:    4 December 2018