FEDERAL COURT OF AUSTRALIA

Nduta v Minister for Immigration and Border Protection [2016] FCA 1596

ORDERS

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

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing Constitutional writ relief in respect of the decision of the Migration Review Tribunal given on 12 June 2014 to affirm the Minister’s delegate’s decision not to grant the appellant a partner (temporary) (class UK) visa: Nduta v Minister for Immigration [2016] FCCA 1220.

Background

2    The appellant was aged 23 at the time of his marriage on 15 September 2010 to his then 76 year old wife. He applied on 20 December 2010 for the visa based on his being the spouse of his wife within the definition of “spouse” in s 5F of the Migration Act 1958 (Cth).

3    As with much in the Act, nothing is as clear as it might seem. Not only does s 5F provide a definition of “spouse” but s 5F(3) provides that the regulations may make provision in relation to determining whether one or more of the conditions in s 5F(2) are satisfied. Relevantly, s 5F and reg 1.15A of the Migration Regulations 1994 (Cth) provided:

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.

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:

…

(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. (emphasis added)

4    It was important that the appellant meet the defined criterion of “spouse”, namely, of being in a married relationship, for the purposes of his application, by reason of two criteria in Sch 2 to the Regulations for the grant of the visa that had to be satisfied at two different times, first, the date of the application for the visa, here, 20 December 2010 (cl 820.211), and secondly, if that criterion was satisfied, at the time of the decision whether to grant the visa (cl 829.221).

5    The appellant claimed that he met the first temporal criterion, at the time of the application, because he was the spouse of an Australian citizen who was his sponsor (cl 820.211(2)(a)(i)). A large number of other requirements applied in a variety of cases that it is not necessary to discuss for the purposes of these reasons. The second temporal criterion had to be satisfied at the time of the decision, namely that the appellant either continued to meet the requirement in cl 820.211(2), namely, that he was still the spouse of his sponsoring wife, or if he were not at this later time in a married relationship, he would have continued to meet the requirements of cl 820.211(2) except that his relationship with his sponsoring wife had ceased, and relevantly (as the appellant claimed), he “has suffered family violence committed by the sponsoring partner” (cl 820.221(3)(b)(i)).

6    In its decision, the Tribunal concluded that, despite their marriage, the appellant had not satisfied the criterion in cl 820.211(2)(a), namely, that at the time of his application for the visa he was the spouse of his wife within the meaning of s 5F. The appellant contended that the Tribunal committed a jurisdictional error in the process by which it arrived at that conclusion.

The proceedings in the Tribunal

7    In reaching that conclusion, the Tribunal had before it a good deal of material, running to many hundreds of pages. The appellant had included with his visa application statutory declarations by two daughters of his sponsor. She also had four other children. The statutory declarations substantively recounted the daughters’ contemporaneous observations that their mother appeared to be very happy in the relationship she had with the appellant.

8    However, matters did not progress happily for long. The Tribunal also had before it evidence of mutual allegations by the appellant and his wife that each one had committed family violence abuse against the other, together with police reports and a court transcript. There was other material before the Tribunal that bore on those matters.

9    The appellant claimed that, as a result of the breakdown of his relationship, by the time of the hearing before the Tribunal he fell within the exception in cl 820.221(3)(b)(i), namely, that he was no longer in the relationship because he had suffered family violence committed by his wife.

10    Shortly before the hearing in the Tribunal the solicitor/migration agent acting for the appellant provided it with a letter dated 27 May 2014 that attached a number of documents which the appellant had obtained under a freedom of information request from the Department as to matters on its file relating to its consideration of his visa application. These included a case note of an interview at the then matrimonial home conducted by a case officer on 18 March 2011. Much of the case note discussed aspects of the relationship. It recorded the wife saying that she believed that their relationship then was good, that the appellant cared about her and had looked after her when she was sick or injured. The case officer asked the couple for evidence of joint accounts and the appellant’s payslips. The case note also referred to other matters, including a previous relationship that the appellant had conducted in July 2009 on the internet with a woman who had informed him that she was a lesbian with children and wanted to marry him. The case note recorded that they had never met in person, although the woman had filled in a marriage licence with his details.

11    The case note referred to the wife’s concerns about the appellant’s use of phones and text messages. The case officer considered that those concerns had been allayed after the appellant gave her access to the phones to check the nature of his calls and messages, and found that most of them involved his uncontentious communications. At the end of the note, the case officer recorded that she had explained to the couple that:

while I still had some concerns about the commitment of the couple I conceded that I may have been reacting to the concerns voiced by the sponsor. I have advised that I would review the file and consider the information collected at the home visit and this interview and make my report following that.

12    Other notes in the freedom of information material dealt with observations by case officers at various times in the period between the March 2011 home visit and August 2012, including a family violence/pre-referral assessment form completed by a case officer and signed by a team leader on 9 August 2012, in which the case officer had recommended that the decision-maker make a finding that the appellant satisfied the criterion that, prior to the relationship ending, he was the spouse, as defined, of the sponsor.

13    The appellant gave evidence to the Tribunal during which it explored with him his relationship with his wife, including the age difference between them, allegations that he was having relationships with other women, and the mutual family violence issues. It also asked him about allegations made in, first, an unsigned letter faxed on 21 April 2011 that appeared to be from all six of the wife’s children. That letter raised concerns about their mother’s health, how she was being cared for and her relationship with the appellant. It also referred to a substantial inheritance that the wife would receive from the estate of a relative. Secondly, a letter dated 4 May 2011 from a friend of the wife raised similar concerns.

The Tribunal’s decision

14    The Tribunal recorded that it discussed all of the claims made against the appellant in relation to the nature of his commitment to his sponsor (wife) and had considered his responses, including that he loved his wife, was committed to her as a husband, was never unfaithful and never knew of the sponsor’s inheritance until after their marriage. His response to questions concerning the inheritance was that the children may not have liked him and possibly wrote their letter because of their interest in that inheritance.

15    The Tribunal considered the appellant’s claims that he and the wife had bought a car together, but it found that the registration papers disclosed that the car was registered in his sole name. It also found that there was no evidence before it of any shared assets or liabilities, although it accepted that the appellant had contributed to the household’s costs. It found that the appellant and his wife had lived together in her rental property for about 19 months. It considered his evidence about their going shopping for food, his household work, including gardening, and evidence of the appellant and the wife going to events together. The Tribunal also considered claims by the six children, as set out in the delegate’s decision, that the appellant had gone out and left their mother alone a good deal of the time. It also considered the evidence given by a witness called by the appellant whom the Tribunal found to be an acquaintance and to whose evidence it gave little weight because it was apparent that she was not a close friend of the sponsor or the appellant. It also considered some brief written evidence from another person as to the relationship between the appellant and his sponsor. The Tribunal also noted that it had considered the statutory declarations of the two daughters that accompanied the application for the visa, the letter from all six of the wife’s children and the letter from the wife’s friend.

16    Critically, the Tribunal found:

17.    Notwithstanding the review applicant’s evidence, the Tribunal remains concerned by the seriousness of the claims made against him by the sponsor, her friend and children. The Tribunal is also concerned by the highly unusual age difference between the review applicant and sponsor. These factors lead the Tribunal to question the credibility of the review applicant and his claims – which the Tribunal does not consider to be very plausible. As such, the Tribunal is not satisfied of the truthfulness of the review applicant’s evidence that he married for love, was genuinely committed to the sponsor and the spouse relationship. The Tribunal considers in the circumstances the sponsor’s claims that the review applicant married her for visa [sic] and had relations with other women, appear quite plausible.

18.    In reaching this conclusion the tribunal has also had some regards to the review applicant’s apparent online marriage discussions with a woman named Julia in Queensland, soon after his entry in Australia in 2009 as a student. The review applicant does not dispute this matter, set out in the decision record, merely stating he did not wish to marry Julia as she was a lesbian. He gave no explanation, however, as to why a lesbian woman in Queensland, a person he had not met in person, would be emailing him with confirmation of a marriage license. This evidence does suggest to the Tribunal that the review applicant’s motives in his relationship with the sponsor may not have been genuine. (emphasis added)

17    The Tribunal was not satisfied that, at the time the visa application was made, the parties were in a spousal relationship and, accordingly, it found that the appellant did not meet the criterion in cl 820.211(2)(a). The Tribunal then said:

31.    The Tribunal has not considered the claims of the review applicant that he was the victim of family violence because it is not satisfied that the review applicant was the spouse of the sponsor within the meaning of the Act. (emphasis added)

18    It is common ground that in [31] the Tribunal should be understood as recording that it was not making findings in relation to whether, at the time of its decision, the appellant was the spouse of his sponsor for the purposes of cl 820.221.

The trial judge’s decision

19    The trial judge gave detailed reasons for dismissing the application. Only two of the five grounds for review below have been pressed in this appeal and I need only deal with her Honour’s treatment of them. The grounds were that the Tribunal erred, first, in finding that the appellant had not met the time of application criterion because it took into account material that was not relevant, being evidence of events and observations that occurred after 20 December 2010 when the application was made, and, secondly, had failed to consider other material that was relevant, including the case officer’s note of 18 March 2011.

20    Her Honour found that the Tribunal did not make a jurisdictional error in considering matters that had occurred or observations that were made after the date of application for the visa. That was because reg 1.15A(2)(d) required that, in considering whether the parties were in “a married relationship” as defined in s 5F, the Tribunal had to have regard to “all of the circumstances of the relationship”. She found that the Tribunal had a broad and unconfined discretion as to the matters that it had to take into account, save that the relevant circumstances had to pertain to the relationship between the parties.

21    Her Honour found that each of the matters identified by the appellant as being irrelevant considerations, in fact did pertain to the issue of whether he and his sponsor were in a married relationship and involved consideration of the many aspects of the relationship, including the unusual age difference between the parties. The trial judge found that none of the matters that the Tribunal considered in finding that the appellant was not a spouse at the time of his visa application were irrelevant, in the sense of the Act or Regulations providing that it could not consider that matter for the purpose of making its decision.

22    She held that in other respects, the appellant’s complaints were in the nature of a disagreement with the Tribunal’s findings, inviting merits review, rather than matters that could constitute a jurisdictional error.

23    Her Honour also rejected the second ground that the Tribunal had failed to consider the material obtained under the freedom of information request that accompanied the appellant’s solicitor/migration agent’s letter of 27 May 2014. The appellant relied on that material before her Honour and on the appeal to contend that officers of the Department who were investigating the visa application were satisfied that he was the spouse of his sponsor at the time of his application, the relationship between him and his sponsor was genuine and that the investigation of whether the appellant met the family violence exception should proceed.

24    Her Honour rejected that submission. She found that it was not for the officers of the Department to make any determination as to the genuineness or otherwise whether there was a “married relationship” for the purposes of investigating the application because they were not then exercising the power to decide whether to grant the visa. She found that, in the event of a complaint of family violence, the Departmental officers had an obligation to refer a matter to the family violence unit for assessment.

25    The trial judge found that none of the material in the freedom of information documents amounted to a determination by any of the Departmental officers that the appellant and his sponsor were in a spousal relationship at the time of the application, and none of those officers gave evidence to the Tribunal or made any submissions. Her Honour also found that the Tribunal had referred to the appellant’s solicitor/migration agent’s written submissions of 27 May 2014 and it confirmed that the submissions were in its possession.

26    Her Honour held that it was open to the Tribunal to consider information to be or not be material and, for that reason, it did not need to make any express reference to information that it did not consider was material. She also noted that it was not necessary for the Tribunal to comment on every item of evidence or information before it. Her Honour also relied on what Robertson J had said in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 130-131 [111]-[112], that it is not always a jurisdictional error for relevant material to be overlooked and that, in making such an assessment, a court on judicial review could have regard to the cogency of the evidentiary material and the place of that material in the assessment of claims. She found that the material on which the appellant relied, whilst capable of being taken into consideration, was not cogent in the sense to which Robertson J had referred and the Tribunal’s failure to refer specifically to it did not amount to jurisdictional error.

27    In those circumstances, her Honour inferred that the Tribunal had had regard to the freedom of information documents referred to in the second ground but did not find them material and, alternatively, her Honour was satisfied that the material in those documents was not sufficiently cogent so as to amount to a jurisdictional error, were the Tribunal to have overlooked it.

The appellant’s submission

28    The appellant relied on appeal on only two grounds, which reflected, in substance, the two grounds considered by her Honour to which I have referred above. The appellant abandoned a third ground of appeal which had asserted the Tribunal had failed to comply with provisions of s 359AA of the Act.

29    The appellant’s argument in support of his two grounds had an element of mutual contradiction in them in this sense. First, the appellant contended that her Honour erred in failing to identify a jurisdictional error in the Tribunal’s use of the claims made against him after he had applied for the visa, in the sponsor’s children’s letter of 21 April 2011, her friend’s letter of 4 May 2011 and in the family violence allegations. The contradiction in the grounds appeared when, in the alternative, he argued that if the Tribunal was entitled to look at those subsequently occurring matters, then it should have looked at all subsequent matters, including all of his family violence claims, rather than ignoring those, as it had done in [31] of its reasons. He argued that the concerns the Tribunal expressed in [17]-[18] of its reasons demonstrated that it had had regard to later events to determine whether they assisted in establishing a state of affairs at an earlier point of time in a way that misused that material. That was, he argued, because the later events were probative only of a change in the spousal relationship that had occurred between the earlier contemporaneous statutory declarations of the sponsor’s two daughters and other material before the Tribunal. The appellant argued that relationships can frequently change and sometimes very quickly and that the Tribunal erred in having regard to what appeared to have been evidence of a subsequent falling out or breakdown in the relationship between the appellant and his sponsor, as probative of the state of their relationship at the time of the lodging of the visa application. He contended that this use of subsequent events went beyond the limited use which the Tribunal could lawfully make of any such subsequent events as explained by Moore, Goldberg and Jacobson JJ in Ally v Minister for Immigration and Citizenship [2008] FCAFC 49 at [33]-[34] and by Smith FM in the trial of those proceedings: Ally v Minister for Immigration [2007] FMCA 430 at [34]-[36].

30    The appellant contended in support of his second ground of appeal that, if the Tribunal was entitled to look at, among others, the events of which the first ground complained, then it failed to discharge its obligation to look at all of the circumstances in accordance with reg 1.15A(2). He relied on what Tracey, Flick and Griffiths JJ had said in Minister for Immigration & Border Protection v Truong [2016] FCAFC 54 at [46] namely:

As this statutory structure makes clear, there is “little utility” in considering the issue of “family violence” for the purposes of cl 820.221(6)(c) unless the spousal relationship is first established: Kaur v Minister for Immigration and Border Protection [2014] FCA 1251. In the context of considering a like requirement imposed by cl 820.221(3), Murphy J there concluded:

[43]    As I have said, the Tribunal was not satisfied that the appellant and her sponsor were in a genuine spousal relationship at the time of the visa application. I consider that the Tribunal was not obliged to consider the issue of family violence …

[44]    In the context of an application for a partner visa there is little utility in considering the issue of family violence unless a spousal relationship for the purposes of 820.211(2) is first established. As the Tribunal found that the appellant failed to establish the necessary relationship at the time of the visa application, there was no requirement for it to assess the issue of family violence.

An application seeking special leave to appeal to the High Court of Australia was dismissed: Kaur v Minister for Immigration and Border Protection [2015] HCASL 27. In dismissing that application, Hayne and Nettle JJ observed that there was “no reason to doubt the correctness of the conclusions reached …”. (bold emphasis added)

31    The appellant argued that there was more material before the Tribunal than it set out in its statement of its decision record and that, indeed, [31] of the Tribunal’s reasons demonstrated that it had not considered the family violence claims and all of the evidence relating to them for the purposes of arriving at its decision in relation to whether he met the criterion of being a spouse at the time of making his application for the visa. In that respect, he pointed to the omission of any reference in the reasons of the Tribunal to the freedom of information documents themselves.

Consideration    

32    The Tribunal had to make a written statement when making its decision that satisfied s 368(1)(b)-(d) setting out its reasons for its decision, its findings on any material questions of fact and referring to the evidence or other material on which the findings of fact were based. McHugh, Gummow and Hayne JJ said of s 430(1), the exact analogue of s 368(1), in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68]:

… it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (italic emphasis in original, bold emphasis added)

33    Section 368 does not require the Tribunal to set out everything that it considered for the purposes of determining the circumstances of the relationship. Indeed, to do so, could place an intolerable burden on a decision-maker and require him or her to compile a statement of reasons that would extend, as the Departmental file did, for hundreds of pages for no good purpose. Indeed, as Tracey, Flick and Griffiths JJ said in Truong [2016] FCAFC 54 at [80], in relation to the obligation for the decision-maker, under reg 1.15A(2), to consider all of the circumstances:

Second, even assuming the argument was advanced before the Tribunal, the failure of the Tribunal expressly to mention the argument does not of itself manifest jurisdictional error. The Tribunal was undoubtedly aware of the making of the final Order by that Court. No jurisdictional error is exposed in the failure of the Tribunal expressly to address all matters which could potentially affect its decision, let alone a factor created in a different statutory context and made for different purposes: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [9] to [10] per Gleeson CJ; at [77] per McHugh, Gummow and Hayne JJ; (2001) 206 CLR 323 at 331 to 332 and 349. It is not necessary for the Tribunal “to refer to every piece of evidence and every contention made by an applicant in its written reasons”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ. The task of the Tribunal was to reach a state of “satisfaction” by reference to the far more extensive factual material placed before it and by reference to the mandate that it “must consider” those matters set forth in reg 1.15A(3). (italic emphasis in original, bold emphasis added)

34    In my opinion, the appellant’s argument on his first ground is misconceived. The Tribunal, in [17] and [18] of its reasons, made findings and gave its reasons for concluding that it was not satisfied of the truthfulness of the appellant’s evidence that he married for love, was genuinely committed to his sponsor and as to his assertions about the spousal relationship at the time of the application. That was a credibility-based finding as to the appellant’s evidence concerning the married relationship, as defined in s 5F(2) of the Act, at the time of his application for the visa.

35    A visa applicant must satisfy the Minister, or decision-maker standing in the Minister’s shoes, such as the Tribunal, that he or she has met each criterion for the grant of the visa. In the circumstances of considering his relationship with his sponsor (i.e. his wife) at the time that he made his visa application, the Tribunal found as a fact that the appellant’s evidence did not satisfy it that he was a person who was actually a spouse or that he was one for the purposes and within the meaning of s 5F of the Act. Such a credibility-based finding was fatal to the success of the application. In reaching its conclusion on that issue in the review, the Tribunal did what reg 1.15A(2) required, namely, it considered all of the circumstances of the relationship, including the matters set out in reg 1.15A(3).

36    Where a statute requires a decision-maker to have regard to, or consider, particular subject matter for the purposes of making a decision, the decision-maker is required to treat the consideration of the relevant factor or factors as a central element in the deliberative process, as I explained in Telstra Corporation Limited v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[111].

37    In a case such as the present, namely, the assessment of the nature of a relationship between human beings, subsequent acts or conduct are capable of revealing that what appeared to be an earlier state of affairs was not, in fact, in accordance with that appearance. Very often persons complain that conduct of another was misleading or deceptive and, as a result of that conduct, the first person suffered loss or damage: ss 52 and 82 of the Trade Practices Act 1974 (Cth) and now ss 18 and 236 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth). Sometimes it is only when one looks at the subsequent conduct of a person that it can be seen that, earlier in the relationship, the person was not acting as he or she previously appeared to have been acting. Likewise here, the Tribunal was entitled to consider subsequent events, under reg 1.15A(2)(c), because these sometimes can reveal that in a relationship said to be of love or affection, a party feigned his or her feelings or engaged in conduct for an ulterior purpose.

38    It was open to the Tribunal to consider the matters to which it referred, first, in forming a credibility-based finding about whether it accepted the appellant’s evidence as to his commitment or state of mind in relation to being a spouse at the time of his application for the visa, and, secondly, in considering the allegations of subsequent events for the light they might have thrown on his actual state of mind or the actual state of the relationship at the time of that application.

39    In my opinion, the primary judge did not err in rejecting what is now the first ground on which the appeal was argued. There is no support in the words of the Act or reg 1.15A(2) for the appellant’s argument that the Tribunal could not have regard to subsequent events or statements in considering whether at the time of the application for the visa the married relationship criterion in s 5F(2) was satisfied. But, for the reasons I have explained, the Tribunal, in fact, used those circumstances to form a view of the appellant’s credibility concerning his own evidence as to his being a spouse for the purposes of that criterion at the time at which he made the application and, for that reason, it did not make a jurisdictional error because it acted within its fact-finding role.

40    The second ground of appeal is similarly, in my view, flawed. The material in the freedom of information request was material which the Tribunal had before it and appeared to have considered, as her Honour found. I am not satisfied that the evidence demonstrates that her Honour erred in doing so. The Tribunal was not obliged to set out in its reasons all of the matters that it considered for the reasons I have given and as explained in Truong [2016] FCAFC 54 at [76]-[80].

41    The fact that the Tribunal did not go into detail about the other aspects of the evidence before it, concerning the appellant’s family violence claims, does not mean that it did not consider all of the circumstances of the relationship within the meaning of reg 1.15A(2). Rather, in declining to make findings about the issues arising under cl 820.221, the Tribunal did not make a jurisdictional error: Truong [2016] FCAFC 54 at [46]. I infer that, in [31] of its reasons, it took the view that there was little utility in considering the claims that the appellant had made that, at the time of the Tribunal’s decision on the review, he was the victim of family violence, because of his failure to satisfy it that he was in a married relationship at the time of making the application. That does not mean that the Tribunal did not consider the evidence relating to family violence, so far as it bore on the circumstances of the relationship for the purposes of determining whether at the earlier time of making the application, the appellant was a credible witness as to the facts necessary to establish that he satisfied the spousal criterion.

42    Nor did the material in the freedom of information documents have any relevant cogency: cf SZRKT 212 FCR at 130 [111]-[112]. Indeed, Robertson J said (at 132 [122]) that it was not correct to say that to ignore “relevant material” is always a jurisdictional error. The cogency of the material to determine whether it is, in fact, corroborative or not and its place in the assessment of the appellant’s claims were relevant factors here, in my opinion, for the reasons given by her Honour. None of the material referred to was of sufficient cogency or materiality to the determination of the question whether at the time of the application the appellant was in a married relationship with his sponsoring spouse, to require the Tribunal to deal with it expressly in its reasons.

43    For these reasons, I am of opinion that the second ground argued fails.

Conclusion

44    Accordingly, in my opinion, the appeal must be dismissed with costs.

Associate:

Dated:    14 February 2017