FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 558

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Background

1    This is an appeal from the judgment of a Judge of the Federal Circuit Court given on 24 February 2015 dismissing with costs the appellant’s application for review of a decision of the Migration Review Tribunal (the Tribunal) dated 18 October 2013 affirming a decision of a delegate of the first respondent dated 11 November 2011.

2    The appellant applied for a Partner (Temporary) (Class UK) subclass 820 visa on 24 November 2010. His application was sponsored by his spouse, Kirsty McDonald, an Australian citizen, whom he married on 21 November 2010. The appellant’s visa application was lodged under cover of a letter from his migration agent dated 23 November 2010. Enclosed with that letter were various documents including, relevantly, Form 40SP entitled “Sponsorship for a partner to migrate to Australia” completed and signed by Ms McDonald, and a document entitled “Joint Statement”. The Joint Statement is unsigned and undated but it purports to be a statement by the appellant and Ms McDonald concerning the history and status of their marital relationship. According to the Joint Statement the couple:

    first met on 8 July 2010;

    were engaged on 13 October 2010;

    were married on 21 November 2010; and

    commenced living together after their marriage.

3    The Joint Statement also included statements indicating that the appellant and Ms McDonald considered that they were in a “genuine and lasting relationship” and that they planned to have children and purchase a home together.

4    By letter dated 3 February 2011 Ms McDonald withdrew her sponsorship of the appellant’s visa application on the basis that their relationship had ceased. This caused the Department to write to the appellant seeking his response to the information it had received from Ms McDonald. In response, the appellant’s migration agent informed the Department that the appellant had been the victim of domestic violence perpetrated by Ms McDonald and that he had obtained a protection order under the Domestic and Family Violence Protection Act 1989 (Qld).

5    The Department then wrote to the appellant seeking (inter alia) evidence demonstrating that his relationship with Ms McDonald was genuine. The appellant’s agent provided a response to this request by a facsimile dated 26 September 2011 and a letter dated 27 October 2011.

6    A delegate of the first respondent refused the appellant’s visa application on 11 November 2011. The appellant sought review of that decision by application to the Tribunal lodged on 22 November 2011. The appellant participated in a hearing before the Tribunal on 18 February 2013. He tendered various documents including a Protection Order Application dated 24 March 2011 identifying the appellant as aggrieved together with a copy of the Protection Order. He also tendered a copy of a Protection Order Application dated 16 February 2011 identifying the sponsor as aggrieved. The appellant gave evidence and made submissions in support of his application.

The Relevant Legislation

7    The criteria for the grant of a subclass 820 visa are set out in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). One of the criteria which the appellant had to satisfy at the time he made his application was cl 820.211. It relevantly provided:

(2)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the spouse or de facto partner of a person who:

(i)    is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii)    is not prohibited by subclause (2B) from being a sponsoring partner; and

(c)    the applicant is sponsored:

(i)    if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; …

8    Section 5F of the Migration Act 1958 (Cth) (the Act) defines “spouse” and relevantly provides:

(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.

9    In relation to the question whether two persons are in a married relationship, reg 1.15A relevantly provides:

(2)    If the Minister is considering an application for:

    …

(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, …

(b)    the nature of the household, …

(c)    the social aspects of the relationship, …

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

10    At the time of the delegate’s and the Tribunal’s decisions, cl 820.221 relevantly provided:

820.22        Criteria to be satisfied at time of decision

820.221 

…

(3)    An applicant meets the requirements of this subclause if:

(a)    the applicant would continue to meet the requirements of subclause 820.211(2) … except that the relationship between the applicant and the sponsoring partner has ceased; and

(b)    either or both of the following circumstances applies:

(i)    either or both of the following:

    (A)    the applicant;

    …

has suffered family violence committed by the sponsoring partner;…

11    Regulations 1.22 and 1.23 set out the evidentiary requirements relevant to a claim of family violence. At all material times they relevantly provided:

1.22    References to person having suffered or committed family violence

(1)    A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.

…

1.23    When is a person taken to have suffered or committed family violence?

…

Circumstances in which family violence is suffered and committed—court order

(4)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

(a)    a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

…

(5)    For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

The Tribunal’s Decision

12    The Tribunal did not accept that the appellant and Ms McDonald had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of the visa application. Nor did the Tribunal accept that the appellant and Ms McDonald were living together at the time of the application or that their separation was only temporary. On that basis the Tribunal concluded that the appellant did not satisfy s 5F(2)(d) at the time of application and that he therefore did not meet the requirements of cl 820.211(2) for the grant of a visa.

The Application to the Federal Circuit Court

13    The appellant raised the following three grounds in his further amended application for review:

(1)    The Tribunal did not accord the applicant procedural fairness in that it did not consider all the circumstances of the relationship. It did not consider evidence in the sponsorship form completed by the sponsor. It did not consider evidence in the letter from the sponsor withdrawing her sponsorship.

Particulars

…

6.    The Tribunal did not consider the evidence in the sponsorship form.

…

8.    The Tribunal did not consider the circumstances revealed by the content of this letter that confirmed that the applicant had been sponsored by his spouse.

9.    The Tribunal denied the applicant procedural fairness by not considering the information provided by his sponsor in the sponsorship form completed by her, and by not considering evidence in his sponsor’s withdrawal letter.

(2)    The Tribunal misconstrued and misapplied the law. It failed to consider all the circumstances of the relationship. It failed to consider evidence in connection with domestic violence. It failed to consider that the sponsor had alleged the domestic violence started before the marriage. It failed to consider that the applicant had sought a court order to recover his property. It failed to consider the sponsor’s continuing use of the applicant's surname, in her Protection Order Application and in the letter from her to the Department of Immigration and Citizenship withdrawing her sponsor.

Particulars

…

3.    The Tribunal failed to consider circumstances revealed by the evidence in connection with domestic violence:-

(i)    The Tribunal failed to consider the sponsor’s allegation that the domestic violence started before the marriage.

(ii)    The Tribunal failed to consider the applicant’s request for an order seeking the return of personal property located at the sponsor’s premises.

(iii)    The Tribunal failed to consider the sponsor’s continuing use of the applicant’s surname after the end of the relationship.

(3)    The Tribunal misconstrued and misapplied the law. The Tribunal failed to take into account that, when there is an issue as to the existence of a fact at a particular date, the evidence of history subsequent to the date is only relevant if this evidence tends logically to show the existence or nonexistence of facts relevant to this issue. The Tribunal erred in law when it purported to rely on the contents of text messages between the applicant and his sponsor to determine the applicant's sponsor was not his spouse at the time of application.

    Particulars

1.    The applicant provided the Tribunal with text messages between him and his sponsor including text messages sent on or after 11 December 2010.

2.    The Tribunal relied on the contents of the text messages to conclude that the couple had never been “in a genuine married relationship”, and accordingly, that the applicant’s sponsor was not his spouse at the time of time [sic] (CB Vol 1, p.304 at [56]; p.305 at [57]).

3.    As a matter of law, it was not open to the Tribunal to use the text messages to determine that the applicant’s sponsor was not his spouse at the time of application.

4.    The Tribunal’s purported determination that the applicant’s sponsor was not his spouse at the time of application was vitiated by this misconstruction and misapplication of the law. It was jurisdictional error.

14    In relation to ground 1, the primary judge noted that there were two items of evidence which the appellant alleged the Tribunal overlooked. The first was the sponsorship form; the second was Ms McDonald’s letter of 3 February 2011 withdrawing her sponsorship of the appellant’s visa application.

15    The primary judge refers to the appellant’s submission in relation to the sponsorship form at [18]. The primary judge described the submission as follows:

[18]    The applicant alleged that the Tribunal failed to consider “all of the circumstances of the relationship” as required by reg.1.15A in that it had failed, he alleged, to consider whether his sponsor had considered her relationship with him to be a genuine spousal relationship. The applicant alleged that this failure was evidenced by the Tribunal’s failure to consider certain information contained in two documents, namely:

(a)    the sponsor’s sponsorship form; and

(b)    the sponsor’s letter of withdrawal dated 3 February 2011.

16    The same submission was advanced in the appeal, in that the appellant submitted that the primary judge should have accepted the submission recorded at [18] of his reasons. The submission was rejected by the primary judge on the basis that he was not persuaded that the Tribunal did not consider “the sponsor’s ostensible endorsement of the genuineness of the relationship.”

17    As to ground 2, the appellant’s submission to the primary judge was recorded by his Honour at [25]. The primary judge said:

[25]    The paperwork associated with the protection orders sought and made in the Queensland Magistrates Court referred to the sponsor’s allegation that the domestic violence started before the marriage, that the applicant had sought the return of personal property and that the sponsor had continued to use the applicant’s surname after the end of their relationship. The applicant said that these were circumstances of his relationship with the sponsor which went to the credibility of his claims and were matters which had to be considered by the Tribunal. He submitted that this information was not considered by the Tribunal.

18    His Honour dealt with ground 2 as follows:

[29]    In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, as was the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. As the applicant did not suggest to the Tribunal that the commencement date of the alleged family violence and his pursuit of an order for the return of property were aspects of his claims, the Tribunal did not err by not taking them into account when considering his claims.

[30]    However, the applicant did submit to the Tribunal that the sponsor’s use of his surname was a matter which pointed to the existence of a committed and long term relationship. The submissions relevantly said:

    … Further in her protection order application Kirtsy [sic] mentioned her family name as SINGH and she declared her address … . No woman will declare someone else’s surname as her’s [sic] unless she is in a committed relationship. Declaration of surname as ‘SINGH’ in her application clearly proves that relationship existed until at least that point. …

    … Even in protection application Kirtsy [sic] mentioned her family name as ‘SINGH’ clearly shows that she was also committed to long term relationship, just like me. … (CB 225, 226).

[31]    It is apparent that the Tribunal was aware of the protection order proceedings in the Queensland Magistrates Court. Nevertheless, I think it likely that this minor aspect of that material, the submissions concerning which were small and unremarkable comments buried in a five page written submission concerned with domestic violence, was overlooked by the Tribunal.

[32]    An applicant who has established procedural deficiency on the part of the Tribunal is entitled to succeed unless the Court is satisfied that that unfairness could have had no bearing on the outcome: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 at 557 [91], 558 [95] and 559 [97]; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at 100-101 [17]-[18].

[33]    The material upon which the Tribunal based its decision was solid and cogent whereas the applicant’s submission was speculative and unsupported by any evidence from the sponsor concerning the significance of her use of the applicant’s name. Further, the evidence referred to in the applicant’s submission added nothing of substance to the allegations concerning the nature of their relationship which he and the sponsor had already made in their joint statement which I have found the Tribunal did consider. In the circumstances, I am satisfied that any failure by the Tribunal to advert to the applicant’s submission regarding the significance of the sponsor’s use of his surname could have had no bearing on the outcome of the review.

[34]    Consequently, I find that any failure by the Tribunal to consider the sponsor’s continued use of his surname did not amount to a failure by the Tribunal to discharge its duty to review.

19    In his submissions, with respect to ground 2, counsel for the appellant placed reliance upon his Honour’s finding that the Tribunal most likely overlooked the appellant’s submission to the Tribunal in relation to Ms McDonald’s use of her married name. It was also submitted that the Tribunal failed to have regard to material relevant to the appellant’s claim that he was subjected to domestic violence in deciding whether the appellant and Ms McDonald were ever in a genuine marital relationship. The primary judge found at [29] that the Tribunal did not err by not taking these matters into account when assessing the appellant’s claims.

20    Ground 3 was argued by the appellant before the primary judge on the basis that the Tribunal made use of the text messages that the appellant tendered was irrational in the sense that no reasonable Tribunal could have drawn the inferences from the text messages that were drawn by the Tribunal. The primary judge was not satisfied that it was not open to the Tribunal to draw such inferences. On appeal the appellant submitted that the primary judge erred in rejecting that submission.

The Grounds of Appeal

21    As I have indicated, the grounds of appeal mirror the grounds of review relied upon by the primary judge.

The Notice of Contention

22    In response to ground 2 the first respondent filed a notice of contention in which he refers to a submission made on his behalf to the primary judge to the effect that the appellant had not established that the Tribunal overlooked the material referred to in ground 2. The notice of contention further asserts:

[G]iven the lack of cogency and probative value of this particular material, and in light of the [Tribunal’s] reasoning, the [Tribunal’s] omission to expressly deal with this item of evidence did not demonstrate jurisdictional error.

Consideration

Ground 1

23    The primary judge was correct to reject the appellant’s argument that the Tribunal had not considered Ms McDonald’s sponsorship form. It is clear that the Tribunal was aware that Ms McDonald was the appellant’s sponsor and that the Departmental file containing the sponsorship form was before it: see para [17] – [20] of the Tribunal’s reasons.

24    The appellant’s argument that the Tribunal did not have regard to the sponsorship form is founded on the proposition that the Tribunal does not explicitly refer to it in its reasons. Counsel does not suggest that the appellant drew any particular feature of the sponsorship form to the Tribunal’s attention. Nor could counsel point me to any information in the document that was of any particular significance to the appellant’s claims beyond the fact that it bore Ms McDonald’s signature. Ultimately, the submission made by counsel for the appellant was that the document was of particular significance because, unlike the Joint Statement, it had been signed by Ms McDonald and was for that reason capable of carrying more weight than the latter document.

25    The absence from the Tribunal’s reasons of any mention that Ms McDonald signed the form is not a sufficient basis for inferring that the existence of the document, the information contained within it or the fact that it was signed by Ms McDonald, were matters that the Tribunal overlooked. This is especially so in circumstances where these matters were given no attention in the appellant’s submission to the Tribunal and where there is no suggestion that the Tribunal’s assessment of the information in the Joint Statement was influenced by the fact that it was not signed by Ms McDonald. The factual premise upon which this aspect of ground 1 is based is not made out.

26    With regard to Ms McDonald’s letter of withdrawal, it is clear that the Tribunal had regard to it because it is specifically referred to by the Tribunal: see para [22] of the Tribunal’s reasons. Counsel for the appellant submitted that the letter showed that Ms McDonald continued to sign her name using “Singh” as her surname well after her relationship with the appellant had broken down. However, the letter of withdrawal is in fact signed by Ms McDonald in her maiden name, so the submission is inconsistent with the facts. It is true that in the first paragraph of the letter Ms McDonald refers to herself by the name of Singh, but that seems to me to be wholly inconsequential in the circumstances, which would explain why the Tribunal made no mention of it in its reasons.

Ground 2

27    In support of ground 2 counsel for the appellant placed reliance upon the Protection Order Application filed by Ms McDonald in the Southport Magistrates Court on 16 February 2011. He submitted that this document, also signed by Ms McDonald, was significant in two particular respects: first, because it described the “aggrieved person” by the name of Singh, and secondly, because Ms McDonald signed the document as “K. Singh”. It was submitted by counsel that this was important evidence that showed that Ms McDonald believed that she and Mr Singh were in a genuine relationship at the time of the application and that this evidence was overlooked by the Tribunal.

28    The written submissions provided by Mr Singh to the Tribunal included the following paragraphs:

To prove that I met the requirement of Section 5F(2)(d), I would like to state that we were living together before marriage breakdown. To prove this point I would like to state that marriage application form was filled by Ms Mcdonald and Ms Mcdonald stated our address as [specified address]. Lease of this property was in the name of Ms Macdonald. Property manager of Meadowlands, Mr Dennis Le Gassick confirmed that I was living at this address in his letter dated 19 November 2010 and again in email dated 18 January 2013. Further in her protection order application Kirtsy mentioned her family name as SINGH and she declared her address [specified address]. No woman will declare someone else’s surname as her’s [sic] unless she is in a committed relationship. Declaration of surname as ‘SINGH’ in her application clearly proves that relationship existed until at least that point. Copy of her application is attached to prove the above mentioned point. Moreover there are so many SMS messages between us showing that we were living as a married couple. I am submitting these documents to show that I met requirements of Section 5F(2)(d).

…

Reg 1.15A(3)(d) - Breakdown of this relationship had enormous emotional effect on me. I became suicidal. It was the support of Mr Tim Smyth (Psychologist), I was able to recover. We both regarded relationship as long term and was always interested in welfare of Kirtsy. Her welfare was the reason, I made her make the·promise that she will never smoke again. Even in protection application Kirtsy mentioned her family name as ‘SINGH’ clearly shows that she was also committed to long term relationship, just like me.

(emphasis added)

29    The passages in the statements in Mr Singh’s written submissions which I have emphasised drew attention to the use by Ms McDonald of the name Singh in her Protection Order Application. It was put to the Tribunal in these passages that Ms McDonald’s use of that name was evidence that she had been in a committed, long term relationship.

30    The primary judge accepted the fact that Ms McDonald had signed the Protection Order Application as “K. Singh” was overlooked by the Tribunal. However, his Honour was of the view that the fact that the document had been prepared in this way added nothing of substance to the allegations concerning the nature of their relationship that was not already apparent from the Joint Statement.

31    I respectfully disagree with the first of his Honour’s findings. The Tribunal was not obliged to refer to every piece of evidence before it nor to every submission that was put to it. While it may be inferred that matters not mentioned in the Tribunal’s reasons were not considered to be material, it does not necessarily follow that such matters were not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] per French CJ and Kiefel J. As the Full Court pointed out in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34]:

The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: SZGUR at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

32    The submission made by the appellant to the Tribunal to the effect that Ms McDonald’s use of the name Singh in the Protection Order Application established that she was committed to a long term relationship lacks cogency because it is logically unsound. That is something to be borne in mind when considering whether or not it should be inferred the Tribunal overlooked the appellant’s submission. Moreover, the relative significance of the matters said to have been overlooked is to be assessed by reference to other material before the Tribunal including evidence of the marriage, various declarations made by third parties (including Ms McDonald’s mother and stepfather), the Joint Statement, and the appellant’s sworn declaration. Considered against the background of the other evidence before it, I consider it more likely than not that the matters said by the appellant to have been overlooked by the Tribunal were not mentioned in its reasons not because they were in fact overlooked, but because the Tribunal did not consider them to be material to its decision.

33    Even if the contents of the Protection Order Application were overlooked, I am not satisfied that this gave rise to any jurisdictional error. Merely to ignore relevant material does not establish jurisdictional error unless it affects the Tribunal’s exercise of power: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 97 (Robertson J) citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The material said to have been overlooked was insignificant and, even if overlooked, could not have had any bearing on the exercise of the Tribunal’s power.

34    Counsel for the appellant also relied upon a handwritten notation (presumably written by Ms McDonald) in the Protection Order Application which is said to indicate that the appellant was living with Ms McDonald as early as October 2010. This was said to be significant because it supported the appellant’s own evidence to the effect that they commenced living together on about 7 November 2010. That in turn was said to be significant because it tended to confirm the appellant’s evidence that a statement made by the appellant’s migration agent to the effect that they did not live together until after they were married was an error by the migration agent, and not an inconsistent statement that the Tribunal should see as reflecting unfavourably on the appellant’s credibility.

35    No submission was put to the Tribunal as to the significance of the handwritten notation. In particular, the written submissions to which I have referred say nothing of it. It by no means follows from the handwritten notation that the appellant and Ms McDonald were living together as early as October 2010. That proposition is, after all, inconsistent with both the contents of the Joint Statement and the appellant’s evidence to the Tribunal. The handwritten notation is also open to the interpretation that the “domestic violence” about which Ms McDonald complained commenced prior to the date on which they began living together. In any event, the Tribunal did not commit a jurisdictional error by failing to notice this argument in circumstances where it was not raised with the Tribunal by the appellant: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [35] (Keane CJ) and [49] (Emmett J).

36    Finally in relation to ground 2, counsel for the appellant submitted that the Tribunal committed a jurisdictional error by failing to consider the contents of the appellant’s Application for a Protection Order. In particular, it is said that it failed to consider the reference in the document to the appellant’s desire to retrieve his clothes, luggage and other possessions, something which was said to provide evidentiary support for the appellant’s contention that his relationship with Ms McDonald was genuine and of a domestic nature. This submission does not appear in the appellant’s written submissions to the Tribunal. In the circumstances, I am not prepared to infer that this material was not considered by the Tribunal.

Ground 3

37    It became clear in the course of oral argument that ground 3 is to be understood to raise a challenge to the Tribunal’s decision on the ground that it was illogical. In particular, it was submitted on behalf of the appellant that if the Tribunal was to have regard to the text messages, then it should have had regard to all the text messages, not just the few that it relied upon in support of its ultimate conclusion.

38    The primary judge dealt with this issue at [37]-[41] of his reasons. His Honour said:

[37]    The applicant also submitted that the most that the Tribunal could infer from the text messages was that on certain dates the applicant and the sponsor were not sleeping at the same premises. He submitted that it was not logical to conclude from that inference that he and his sponsor were not living together on those dates or at the time of application.

…

[38]    The fact that amongst the texts referred to by the Tribunal was one from the applicant’s wedding day, three days before the visa application was lodged, which indicated that the applicant and his wife were not spending the night together was evidence relevant to the nature of the couple’s relationship. So were the text messages sent less than a week later which indicated that the couple were apart for two nights. Those messages, particularly because they were so close in time to their marriage and the date of the application, were especially relevant to the question of whether the relationship between the applicant and the sponsor was a genuine spousal relationship. The Tribunal did not err by taking them into account.

[39]    As those text messages were relevant, it was appropriate that the Tribunal take the other ones it cited into account in order to gain a more complete understanding of the parties’ relationship.

[40]    The text messages were also relevant to the applicant’s credit, the Tribunal noting at para. 47 of its reasons that they contradicted some of his evidence.

[41]    Once it is concluded that the Tribunal did not err by taking the text messages into account, the question which remains is whether the conclusions it drew from them were lawfully open to it. I find that they were and not of a sort which no reasonable tribunal would have reached. Consequently, they were not erroneous in the relevant sense so the Tribunal’s decision was not affected by jurisdictional error on that account.

39    I agree with his Honour’s analysis. I do not think there was anything illogical or irrational in the Tribunal’s conclusions or in the use the Tribunal made of the text messages in arriving at them.

Disposition

40    The primary judge correctly found that the Tribunal’s decision was not affected by jurisdictional error. The appeal must be dismissed with costs.

Associate:

Dated:    5 June 2015