FEDERAL COURT OF AUSTRALIA

Sun v Minister for Immigration and Border Protection [2017] FCA 1270

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 17 November 2016 be set aside and substituted with orders that:

(a)    a writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal given on 21 April 2016 (case no 1411375);

(b)    a writ of mandamus issue directing the Administrative Appeals Tribunal to rehear and determine the applicant’s application for review according to law; and

(c)    the first respondent pay the applicant’s costs of and incidental to the application.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

REEVES J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia: [2016] FCCA 2952 (Sun). The central question it raises is whether the Federal Circuit Court judge erred in determining that the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), properly conducted its review of a decision of the delegate of the Minister to refuse to grant a partner visa to Ms Sun, the appellant.

The factual background

2    Ms Sun is a citizen of China. She was born in 1954 and came to Australia in 2013 “to spend time with her daughter and grandchild”. Her first husband had died 10 years earlier and, by that time, all of her children were adults. She first met her present husband in Australia in late November 2013. He is an Australian citizen. By January 2014, they claimed to have formed a “committed relationship”. They married on 12 March 2014. On 26 March 2014, Ms Sun applied for a Partner (Temporary) (Class UK) visa.

The relevant legislative provisions

3    At the time Ms Sun made her application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of that class of visa were set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 820.211(2)(a) of the Regulations relevantly required that, at the time the visa application was made and at the time of the delegate’s decision with respect to it, Ms Sun had to be the “spouse” of her sponsor/husband and he had to be an Australian citizen. I interpose that, at the hearing of Ms Sun’s appeal, it was common ground that these criteria had to be met as at the time of the Tribunal’s decision.

4    The expression “spouse” is defined in s 5F of the Migration Act 1958 (Cth) (the Act) as follows:

(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.

5    As provided for by s 5F(3) above, certain provisions of the Regulations affected Ms Sun’s application. Relevantly, they were reg 1.15A(2) and (3) as follows:

(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.

The procedural history

The delegate’s decision

6    In June 2014, a delegate of the Minister examined the evidence Ms Sun had provided with respect to the matters set out above and decided: “As you do not meet the definition of spouse under section 5F of the Migration Act I am therefore not satisfied that you meet subclause 820.211(2)(a) of the Migration Regulations. I therefore refuse your application for a Partner (Temporary) (Class UK) visa.”

The Tribunal’s decision

7    Soon after the delegate’s decision, Ms Sun applied to the Tribunal for a review of the delegate’s decision. On 14 April 2016, she appeared before the Tribunal and gave evidence and her representative made submissions on her behalf. By that time, Ms Sun had separated from her husband/sponsor and had obtained a protection order against him. This obviously affected Ms Sun’s capacity to comply with the requirement that their relationship was “continuing” (see s 5F(2)(c) at [4] above). However, she was able to rely upon reg 820.221 and, in particular, reg 820.221(1). It provided that:

In the case of an applicant referred to in subclause 820.211(2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:

(a)    continues to meet the requirements of the applicable subclause; or

(b)    meets the requirements of subclause (2) or (3).

8    Because Ms Sun’s application fell within the terms of subclause 820.211(2), she was able to rely upon reg 820.221(1)(b) above and, in turn, reg 820.221(3). In particular, she sought to rely upon reg 820.221(3)(b)(i)(A), which was in the following form:

An applicant meets the requirements of this subclause if:

(a)    the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) 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;

9    The circumstances in which an applicant “has suffered family violence” was dealt with in Division 1.5 (regs 1.21 to 1.30, inclusive) of the Regulations. Of particular relevance to Ms Sun’s application were subregs 1.23(4) and (5) as follows:

(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

(b)    the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

(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.

10    Against this background, the Tribunal began its reasons for decision by describing the nature of Ms Sun’s application (at [1]–[3]) and then identifying the relevant law (at [4]–[8]). In the course of the latter, the Tribunal specifically referred to s 5F of the Act and the matters set out in subsections (2)(a) to (2)(d) (see at [4] above). It then stated (at [6]):

In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3).

11    Noting that Ms Sun had informed the Tribunal that her relationship with her husband had ceased and she had suffered family violence committed by him, the Tribunal turned to consider the provisions of reg 1.23 above. In the course of considering that question, the Tribunal specifically noted that: “the violence or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).” In this respect, the Tribunal was relevantly referring to reg 1.23(5) above which placed a condition on the application of reg 1.23(4) (both set out at [9] above).

12    Before considering that condition, the Tribunal asked itself the question posed by reg 1.23(4) above: “Did the applicant suffer family violence?” Having regard to a protection order that had been issued by the Redcliffe Magistrates Court on 18 March 2016, it reached the following conclusion (at [11]):

The Tribunal is satisfied that a court order was made against the sponsor for the protection of the applicant in relation to violence, after the sponsor had an opportunity to be heard or otherwise make submissions to the Court. The evidence meets the requirements of r.1.23(4).

13    The Tribunal then returned to the condition imposed by reg 1.23(5) above and asked itself the question “Did the violence occur whilst the parties were in a relationship?” It answered that question at the outset of that section of its reasons (at [14]) and thereafter proceeded to explain why it had answered the question in that manner (at [15]–[28]). In short, the Tribunal concluded that Ms Sun’s relationship with her husband was not a genuine one as required by s 5F(2)(c): “the relationship is genuine and continuing”. It expressed that conclusion in the following terms:

The Tribunal has considered the documentary evidence that was submitted with the primary application and additional evidence is before the Tribunal concerning the various aspects of the relationship. However, such evidence does not satisfy the Tribunal that the relationship was that of spouses or that it was a genuine one. Such evidence does not overcome the Tribunal’s concerns noted below. The Tribunal is of the view that if the relationship was not a genuine one, it would still be possible to prepare, or obtain, a substantial amount of evidence of the kind that has been presented with application and to the Tribunal. In the Tribunal’s view, such evidence may be available whether or not the parties are in a genuine relationship and whether or not both have commitment to such relationship. That is, the fact that the applicant had taken steps to obtain documentary evidence relating to various aspects of the relationship does not necessarily reflect on the genuine nature of that relationship. It may equally reflect on her commitment to prepare evidence that the parties perceive as being necessary to show in a spouse case to achieve a favourable outcome. More is needed to satisfy the Tribunal that the relationship is genuine and that there is a genuine commitment to the relationship. The applicant has not done that.

(Emphasis added)

14     Thereafter in its reasons, the Tribunal identified various aspects of the relationship that lead it to conclude it was not genuine, including the following:

(a)    the language difficulties Ms Sun had in communicating with her husband leading it to conclude that “in the circumstances of this case” it was “not satisfied that the couple were able to establish a mutual commitment to the relationship on the basis of their very limited communication” (at [15]). In this context, it mentioned reg 1.15A, again stating:

The Tribunal acknowledges the submission of the applicant’s representative that the ability to communicate is not a requirement in r. 1.15A and should not be fatal to the application. The Tribunal is of the view, however, that the ability to communicate is a relevant factor in being able to form a mutual commitment to the relationship.

(b)    the haste with which the relationship was formed (approximately two months) as a result of which it was “not convinced that the parties had spent adequate time with each other to have been able to learn enough information about each other to form a committed relationship” (at [16]);

(c)    the vagueness of Ms Sun’s evidence when asked what it was about her husband that attracted her to the relationship which, while acknowledging that “people form relationships for a variety of reasons”, nonetheless did not convince it that Ms Sun’s evidence “establishes a sufficient basis for the couple to make a meaningful decision to form a committed relationship”. On this aspect, the Tribunal rejected Ms Sun’s explanation that, as a “traditional Chinese woman”, she had difficulty expressing herself (at [17]);

(d)    the time at which the relationship had formed, taking account of Ms Sun’s evidence that “she had no other relationships since the death of her previous husband”, the Tribunal thought it was curious that she had set up “the relationship with the sponsor with whom she could hardly communicate and who she knew for a very brief period of time” (at [18]); and

(e)    the notarised “Free to Marry Certificate” dated September 2013 which Ms Sun had brought with her to Australia and which she presented with her original visa application (at [19]).

15    Having considered these matters, the Tribunal concluded that Ms Sun did not ever have a genuine commitment to the relationship, as follows (at [19]):

… The Tribunal has formed the view that, having spent some time in Australia and having decided that she preferred living in Australia, the applicant arranged the relevant papers and then went about finding a partner, any partner, who could sponsor her for a visa in Australia. The Tribunal is not convinced that the applicant had any commitment to this particular partner and this particular relationship. Rather, the Tribunal is of the view that the applicant’s commitment was to a means of obtaining a visa. In reaching this conclusion, the Tribunal acknowledges that the applicant’s desire to obtain an Australian visa is not necessarily inconsistent with the existence of a genuine and committed relationship. (The applicant’s representative refers to case law on the issue.) However, for the reasons set out in this decision, the Tribunal is not convinced that the applicant has ever had a genuine commitment to the relationship.

16    In the next section of its reasons, the Tribunal began by stating it had considered “various aspects of the relationship” (at [20]). It then turned to consider the evidence Ms Sun had presented with respect to those matters to explain why it did not consider that evidence showed the relationship to be genuine. In particular, it addressed the evidence relating to the financial arrangements of the relationship (at [20]–[23] inclusive) and how the couple had socialised together (at [24]–[25] inclusive).

17    First, in its consideration of the evidence concerning the financial arrangements between Ms Sun and her sponsor/husband, the Tribunal: examined a number of receipts in joint names that Ms Sun had provided with her application and found them to be “problematic” (at [20]); considered the bank account arrangements that existed between them and formed the view that “the applicant has been less than truthful in her evidence to the Tribunal concerning the financial arrangements with the sponsor” (at [21]); recorded her evidence that her sponsor/husband paid the rent and noted her ignorance of the lease arrangements, including when the lease was last renewed stating its concern that Ms Sun had “so little knowledge about such a significant expense, given her claim that they shared their finances” (at [22]); and the fact that they had opened a joint bank account in about November 2013, when they did not claim to have formed a committed relationship until January 2014 (at [23]).

18    As to the evidence on the social activities they engaged in as a couple, the Tribunal noted and accepted Ms Sun’s evidence that her sponsor/husband had introduced her to his parents and some of his friends, however, it noted that she was unable to recall the names of her husband’s parents or his brother or any of his friends (at [24]). From this aspect of the evidence, it concluded: “It does not appear that [Ms Sun] took much interest in the social interactions as a couple.” The Tribunal also referred to the evidence of Ms Wang, a friend of Ms Sun’s daughter, and Mr Li, her son-in-law. It found Ms Wang’s evidence to be “very vague”, but nonetheless genuine. However, taking account of that evidence, the evidence of her daughter and the evidence of Mr Li, it was ultimately not dissuaded from its concerns (at [25]).

19    The Tribunal then summarised its conclusions. It prefaced that summary with the statement that it had “had regard to all the aspects of the relationship”. First, it set out the aspects of Ms Sun’s claims it was prepared to accept as follows (at [26]):

… Overall, the Tribunal accepts that the couple had socialised together and made arrangements to share their finances. The Tribunal accepts they declared the relationship to others. The Tribunal is prepared to accept that [Ms Sun] lived in the [husband’s] house. The Tribunal is even prepared to accept that the [husband] had some commitment to this relationship.

20    However, despite accepting these matters, it said it had formed the view (at [26]):

… that all these arrangements were made specifically to assist [Ms Sun] with her visa application and not because she had any commitment to the relationship. … that [Ms Sun] has decided to remain in Australia and, having made that decision, she went about finding any partner who could sponsor her for a visa and setting up a relationship with that partner, with all the relevant paperwork, in order to enable her to obtain the visa. … that all other activities, including social outings, joint financial arrangements, etc, were engaged in by [Ms Sun] for the sole purposes of enabling her to obtain the visa and the Tribunal is not satisfied these represent [Ms Sun’s] commitment to the relationship.

21    While acknowledging that Ms Sun’s “desire to remain in Australia would not necessarily preclude the existence of a genuine relationship”, the Tribunal stated it was “not satisfied that such a relationship existed and, in particular, [it was] not satisfied that [Ms Sun] ever had any commitment to the relationship” (at [26]).

22    Finally (at [27]), the Tribunal acknowledged and accepted Ms Sun’s representative’s submissions that none of the factors it had identified “necessarily preclude the existence of a genuine and committed relationship”. Nonetheless, having “regard to the combination of [its] concerns …, and having considered the entirety of the evidence and all the circumstances of the relationship”, it concluded that “[Ms Sun] has not satisfied [it] that her relationship with [her husband] was a genuine one or that of spouses”.

23    The Tribunal then reiterated its answer to the question it had posed at the outset of that section of its reasons (see at [13] above) in the following terms (Sun at [28]):

The Tribunal is not satisfied that [Ms Sun] was ever the spouse of [her husband] within the meaning of r. 5F (sic – s. 5F). As such, the Tribunal is not satisfied that the violence occurred whilst the parties were in a relationship. The Tribunal is not satisfied that violence, or part of the violence, that led to the granting of the order, occurred while the married relationship existed between the alleged perpetrator and the spouse of the alleged perpetrator. The Tribunal is not satisfied [Ms Sun] meets r. 1.23(5) and the equivalent provisions in r. 1.23. The Tribunal is not satisfied [Ms Sun] is taken to have suffered family violence.

24    Accordingly, the Tribunal affirmed the delegate’s decision.

The Federal Circuit Court decision

25    Ms Sun raised two grounds of review before the Federal Circuit Court. They were (Sun at [13]):

The Administrative Appeals Tribunal misapplied and/or wrongly interpreted the provisions concerning spouse visas in the Migration Act 1958 and Migration Regulations 1994, in that:

(a)    The Tribunal wrongly proceeded on the basis that it had to be satisfied that there was some level of love or attraction between the parties, and in doing so relied on findings that the Applicant has a ‘lack of appreciation of what attracted her to the sponsor’ and that it was ‘unclear…why the applicant chose the sponsor and not any other person’.

(b)    The Tribunal wrongly proceeded on the basis that the Applicant’s desire and commitment to obtain a visa and to remain in Australia could not amount to a commitment to the sponsor or the relationship.

(c)    The Tribunal wrongly proceeded on the basis that the social, financial and other circumstances of the relationship could not support a finding of a ‘married relationship’ unless those circumstances were specifically representative of a commitment to that relationship.

The Administrative Appeals Tribunal failed to take into account relevant considerations or failed to consider relevant material; namely;

(a)    The claimed violence or abuse of the Applicant by the sponsor, not for the purposes of r 1.23 of the Migration Regulations 1994, but as required by reg 1.15A(2) or (3).

(b)    The nature of the household, including the living arrangements and any sharing of the responsibility for housework, as required by reg 1.15A(3)(b).

(c)    The physical or sexual aspects of the relationship, as required by reg 1.15A(2).

(d)    The duration of the relationship and the length of time during which the parties lived together, as required by reg 1.15A(3)(d).”

(Emphasis omitted)

26    With respect to the first ground of review, the primary judge listed eight factors (Sun at [20]) which, in combination, persuaded him that: “The reasons of the Tribunal illustrate that (sic), on the whole of the evidence, a finding that the relationship between the sponsor and the Applicant was not a spousal one.” (Sun at [19]).

27    However, his Honour found the second ground to be “a little more troubling” (Sun at [23]). First, his Honour agreed that a failure to consider all the matters set out in reg 1.15A(3) of the Regulations would amount to a jurisdictional error (Sun at [24]–[26] inclusive). Nonetheless, having regard to: the last two sentences of [6] of the Tribunal’s reasons (set out at [10] above); the fact that there were submissions from Ms Sun’s representative as well as evidence that touched upon all of the matters set out in reg 1.15A(3); the statement at [26] of the Tribunal’s reasons that it “has had regard to all the aspects of the relationship”; and the statement at [27] of the Tribunal’s reasons where it “acknowledges the applicant’s written submissions of 18 April 2016”, his Honour concluded that the Tribunal had considered all the matters in reg 1.15A(3), without specifically stating all of them (Sun at [28])–[34] inclusive).

The grounds of appeal

28    Ms Sun has relied upon two grounds of appeal before this Court. They are:

1.    The Federal Circuit Court of Australia erred by failing to determine whether considerations of “violence or abuse” and “sexual aspects of the relationship” were mandatory relevant considerations which the Administrative Appeals Tribunal was bound, but failed, to take into account.

2.    The Federal Circuit Court of Australia erred by failing to find that the Administrative Appeals Tribunal failed to take into account relevant considerations consisting of the claimed violence or abuse of the appellant by the sponsor; the nature of the household, including the living arrangements and any sharing of responsibility for the housework; the physical or sexual aspects of the relationship; and the duration of the relationship and the length of time during which the parties lived together.

29     At the hearing of the appeal, Ms Sun’s counsel stated that ground one was essentially subsumed in ground two and he therefore focused his submissions on that ground.

The contentions

30    Ms Sun submitted that ss 368(1)(c) and (d) of the Act required the Tribunal, in its statement of reasons, to set out “the findings on any material questions of fact” and to refer to “the evidence or any other material on which the findings of fact were based”. Relying on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf), she submitted that the Tribunal’s statement of reasons must be construed as referring to the findings of fact it subjectively considered to be material. Further, relying upon Yusuf and a number of other authorities, she submitted that, where the Tribunal had made no findings on a question of fact, absent any sufficient contrary indication, it should be inferred that it did not consider that question to be material and that it had therefore failed to consider that matter.

31    Ms Sun submitted that the Tribunal should have found the following four matters to be mandatory relevant considerations under subregs 1.15A(2) and (3) of the Regulations:

(a)    the existence and nature of any sexual relationship;

(b)    the existence and nature of any violence or abuse in the relationship;

(c)    the nature of the household, including the living arrangements and any sharing of the responsibility for housework (reg 1.15A(3)(b)(ii) and (iii)); and

(d)    the duration of the relationship; how long the parties had lived together (reg 1.15A(3)(d)(ii)).

32    That was so, she submitted, because she had provided evidence to the Tribunal that she had a violent but intimate sexual relationship with her husband and, having done so, that meant she had made a claim that the Tribunal was required to consider as a circumstance of the relationship within the terms of that phrase in reg 1.15A(2). It followed, she contended, that her claim became a relevant consideration that the Tribunal was bound to have regard to as a “circumstance of the relationship”.

33    Ms Sun submitted that the first two matters above were mandatory considerations under either reg 1.15A(2): “all of the circumstances of the relationship”, or under reg 1.15A(3)(d): “the persons’ commitment to each other”. Further, she submitted that the existence of family violence or abuse and the peculiar nature of their sexual relationship and emotional support were matters that she had specifically mentioned in her submissions to the Tribunal, but which it had not mentioned in its statement of reasons. Her counsel described this violence as “emotional and physical violence”. She submitted that it “[was] of a very intimate nature … [and] included essentially a domineering approach”. This, it was submitted, was “at least potentially indicative, of a genuine, albeit dysfunctional, relationship”.

34    On a fair reading of the Tribunal’s reasons, Ms Sun submitted that the Tribunal did not make any findings of fact on any of the matters in [31] above and, it should be inferred, did not therefore take any of them into consideration when making its decision. This was despite the fact, so she submitted, that there was evidence or arguments before the Tribunal with respect to each of them. She submitted that the general statements the Tribunal made to the contrary in its statement of reasons were not sufficient to counter this conclusion. Finally, she submitted that the primary judge had erred in failing to find that the Tribunal had made these errors. In particular, she submitted that the primary judge did not mention Yusuf or s 368 of the Act in his reasons. However, she accepted that the two decisions from which his Honour quoted (Sun at [32]–[33]) did each refer to Yusuf. She submitted that the primary judge did not conduct an analysis of the whole of the Tribunal’s decision to determine whether it had considered all the relevant circumstances, but instead solely relied upon the general statements in the Tribunal’s reasons that it had regard to all aspects of the relationship and the appellant’s written submissions (see Sun at [34]).

35    The Minister submitted that neither the primary judge, nor the Tribunal, had committed any relevant error. He submitted s 368 of the Act only required the Tribunal’s statement of reasons to contain the findings it had made on material questions of fact. He submitted that section did not require the Tribunal to record all of the matters to which it had turned its mind. The Minister submitted that the Tribunal’s obligation in relation to mandatory considerations was to give “genuine” consideration to them by engaging in “an active intellectual process” with respect to them. In relation to the mandatory considerations set out in reg 1.15A(2) and (3), the Minister placed particular reliance on the Full Court judgment in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 (Khadgi) where the Court drew a distinction between mandatory considerations that were critical or fundamental to the Tribunal’s decision and those that were of lesser importance. It followed, so the Minister submitted, that the most that could be inferred from the Tribunal’s failure to mention a particular matter in its statement of reasons was that it did not consider it to be critical or fundamental, not that it did not consider the matter at all. Furthermore, he submitted, such an inference was not to be drawn lightly. He submitted that the determination of the issue whether the Tribunal had considered particular matters required an analysis of the whole of the Tribunal’s statement of reasons and the material put before it. On this issue, he submitted, Ms Sun bore the onus. In discharging that onus, he submitted it was not enough simply to point to particular factors that were not mentioned in the Tribunal’s statement of reasons.

36    The Minister submitted that, from a reading of the whole of the Tribunal’s statement of reasons, it was apparent that it had had regard to the matters it considered were of critical or fundamental importance to its determination. In support of this submission, the Minister pointed to a number of matters in the Tribunal’s statement of reasons which, he submitted, excluded an inference that the Tribunal had not considered the mandatory considerations. In particular, he pointed to the fact that the Tribunal stated it had had regard to “all the circumstances of the relationship” and had considered all the evidence/materials before it. As to the four matters identified by Ms Sun, the Minister submitted that, although the Tribunal may not have even inferentially referred to the existence of the couple’s sexual relationship in its statement of reasons, it had, at least inferentially, referred to the duration of the relationship and to the sharing of responsibility for housework. In any event, he submitted, it could not be inferred that the Tribunal had not duly considered all of the mandatory considerations it was required to consider.

37    After I reserved my decision in this matter, I requested the parties to file supplementary submissions directed to the decision of Jessup J in Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 (Li). That decision dealt with an earlier, but substantially similar, form of reg 1.15A and had not been mentioned in the original submissions of either of the parties. In her submissions, Ms Sun sought to rely on Li and contended that the Tribunal had therefore erred by failing to identify, and then make findings about, “all the circumstances of the relationship” as required by reg 1.15A(2). In his submissions, the Minister contended that Li was “clearly and plainly wrong” because reg 1.15A did not require the Tribunal to:

(a)    identify each and every “circumstance” of the relationship; and

(b)    make findings of fact in respect of all those circumstances.

38    Further, the Minister submitted that Li was inconsistent with a number of other authorities, including Khadgi. He also submitted that Li was inconsistent with the requirements of s 368 of the Act and did not have due regard to the decision in Yusuf. Alternatively, the Minister submitted that Li was distinguishable on the facts and/or did not apply in this matter because, since that decision, the words “have regard to” in reg 1.15A have been changed to “consider”. Accordingly, the Minister submitted that the proper analysis in this matter focused on whether the Tribunal had failed to take into account a relevant consideration. On that approach, the Minister relied upon his original submissions detailing why he contended the Tribunal had not made such an error.

Consideration

The relevant considerations in this matter

39    It is convenient to begin where the Tribunal began in its statement of reasons, that is, with the pivotal expression “spouse”. As is mentioned above (see at [4]), that expression is defined in s 5F(1) of the Act by reference to whether the two persons concerned are in a “married relationship” (s 5F(2)). The expression “married relationship” is, in turn, defined in s 5F(2) by reference to the four conditions set out therein (s 5F(2)(a) to (d) inclusive), all of which must exist, noting that the last condition is expressed in the alternative. Those four conditions are then, in turn, informed by regs 1.15A(2) and (3), which require the Tribunal, in broad and inclusive terms, to consider “all of the circumstances of the relationship, including the matters set out in subreg (3)” (reg 1.15A(2)). The extent of the matters the Tribunal must consider is then further expanded by the inclusive list of matters set out in reg 1.15A(3). In all, that subregulation identifies four head matters which are each expressed to include – by using the word “including” after each – a further 15 criteria in total. It can therefore be seen that these four layers of provisions – two in the Act (ss 5F(1) and (2)) and two in reg 1.15A – set out a comprehensive, but by no means exhaustive, list of more than 20 matters that the Tribunal is required to consider when it makes its determination.

40    There was no dispute in this appeal that the non-exhaustive list of matters that are set out in the provisions I have referred to above are relevant considerations in the sense that they were matters that the Tribunal was bound to consider when it was reviewing the delegate’s decision.

The principles on a decision-maker’s obligations with respect to relevant considerations

41    There is also general agreement, although with different emphasis, about the following principles relating to a decision-maker’s obligations with respect to relevant considerations and any review that is conducted to ascertain whether a decision-maker has complied with those obligations. As illuminated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39, the necessity to consider, or have regard to, such considerations requires a decision-maker to give “proper, genuine and realistic” consideration to them (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 29 per Gummow J; Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 at [47]–[54] per Lindgren, Rares and Foster JJ and Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 (Reece) at [68] per Jacobson, Flick and Reeves JJ). However, when a court is reviewing a decision to ascertain whether the decision-maker has complied with this obligation, it is necessary to ensure that impermissible merits review does not ensue (see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [30]–[36] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ and Reece at [69]). Furthermore, the importance of a particular matter will affect the nature and extent of the consideration which it attracts. Thus, a matter of fundamental importance to the decision-making process will require closer consideration than one of lesser importance (see Khadgi at [60]–[62] and Reece at [70]). In Khadgi, the Full Court said, with respect to a list of 10 criteria that the Minister was required to have regard to under s 109 of the Act in that matter , that (at [62]):

… It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.

42    Additionally, when a court is conducting such a review, it is important to bear in mind that the question whether the decision-maker has complied with his or her obligation in this regard is a question of “fact” and “degree” (see Khadgi at [71] and Reece at [67] respectively) and each case must be “evaluated according to its own particular circumstances” (see Khadgi at [70]). Finally, it is well-established that any review of a decision-maker’s reasons for a decision should not to be undertaken “with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

The obligations under s 368 and the inferences that may be drawn

43    There is also no dispute in this matter that, when the Tribunal made its decision on Ms Sun’s application, it was required to comply with s 368 of the Act and to prepare a written statement that, among other things, sets out its “findings on any material questions of fact” (s 368(1)(c)). Both counsel referred to Yusuf to illuminate the content of this requirement. In that matter, the High Court considered an identical provision to s 386(1)(c) (s 430(1)(c) of the Act) and expressed a number of presently relevant conclusions about it. First, in their joint judgment, McHugh, Gummow and Hayne JJ held that the provision did not impose an obligation on the Tribunal to make findings “on any and every matter of fact objectively material to the decision which it was required to make” (see at [67]–[68]). Instead, their Honours said it requires “no more than that the Tribunal set out the findings which it did make” (see at [68]). Secondly, this requirement was said to focus “upon the subjective thought processes” of the Tribunal and requires it to set out the findings on the 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” (see at [68]). Thirdly, their Honours held that a court conducting judicial review of the Tribunal’s decision may infer that any matter not mentioned in its statement of reasons was not considered by it to be material (at [69]).

44    Fourthly, and importantly for present purposes, a failure to mention a matter may, in turn, reveal jurisdictional error in that “[t]he Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration” (at [69]). See also Gleeson CJ at [10] and Gaudron J at [35] and [44]. Referring to these and other similar observations in Yusuf, a Full Court of this Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) said: “Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account” (citations omitted) (see NBMZ at [16] per Allsop CJ and Katzmann J).

45    This inference is not, however, to be drawn lightly: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [70] per Gummow J. Furthermore, whether or not it should be drawn, is a matter upon which an applicant/appellant bears the onus (see Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) at [53] per Kenny, Griffiths and Mortimer JJ). And, to discharge that onus, the applicant/appellant needs to do more than “point to material capable of supporting [the] inference” and instead needs to demonstrate to the Court that “having regard to all of the evidence and other material before the Court it would be appropriate to draw [the] inference” (see SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ).

46    When a Court is determining whether to draw such an inference, it will usually be required to undertake “a close analysis of the decision-maker’s reasons without the benefit of other evidence” (see Khadgi at [71]). In conducting that analysis, it will be necessary to bear in mind that a decision-maker does not need to refer to, or comment on, each criterion that must be considered (see Khadgi at [69]), nor conduct a “line by line refutation” of the evidence (see MZYTS at [57]), and the weight to be given to any particular criterion, or group of criteria, is entirely a matter for him or her (see Khadgi at [68]). Conversely, the fact that a decision-maker states in his or her reasons that a particular criterion has been taken into account is not conclusive of that issue (see Reece at [63]). These principles were aptly gathered and summarised by a Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ in the following terms:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

The more fundamental error identified in Li

47    Finally, it is necessary to turn to the judgment in Li. In that matter, Jessup J was called on to consider a decision of the Migration Review Tribunal to refuse to issue a Partner (Migrant) (Class BC) Visa to Ms Li. Except that they were all contained in reg 1.15A, rather than partly in the Act and partly in that Regulation, the conditions affecting that decision were substantially the same as those in this matter. On this aspect, I reject the Minister’s contention that there is, in this context, any significant difference between the requirements of the expressions “have regard to” in Li and “consider” in this matter. Both require the Tribunal to engage in “an active intellectual process” with respect to the circumstances of the relationship prescribed by reg 1.15A (Khadgi at [57]); and neither requires the Tribunal to “laboriously evaluate seriatim” each of those circumstances (Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [20]).

48    It was not in dispute in Li that the Migration Review Tribunal had had regard to the matters Ms Li had put to it in its consideration of the circumstances under reg 1.15A (Li at [5]). What was in dispute was whether the Tribunal had considered Ms Li’s claim that she and her husband had been actively taking steps to conceive a child (Li at [9]). Jessup J noted that the Migration Review Tribunal had referred to this fact only twice in its decision (Li at [13]). The primary contention Ms Li put to Jessup J was that the Federal Magistrates Court (now the Federal Circuit Court) failed to detect that the Migration Review Tribunal’s shortcomings went beyond omitting to refer to particular matters of evidence before it and instead constituted a failure “to turn its mind to the appellant’s claims as such, or to the component integers of her case, in such a way as constituted a constructive failure to exercise jurisdiction (Li at [17]). In response, the Minister submitted that Ms Li’s intention to have a child “were not circumstances referred to in reg 1.15A to which the Tribunal was obliged to have regard. They were no more … than elements of the evidentiary case upon which [Ms Li] chose to rely” (Li at [18]).

49    In considering Ms Li’s primary contention, Jessup J reviewed the decisions in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 (Htun) and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 (Dranichnikov). Having done so, his Honour observed (Li at [22]) that:

In the case of an application for a protection visa, therefore, the claims which the applicant actually makes constitute the definitional elements of the application. As is clear from cases such as Htun and Dranichnikov, the courts have regarded such claims as more than merely pieces of evidence in support of a contention that there exists a fear of one of the kinds referred to in the Convention. They have been regarded, it seems, as definitional with respect to the very question which comes before the relevant decision-maker.

50    By contrast, his Honour said (Li at [23]) that:

… the entitlement of an applicant to a spouse visa is not structured around the nature of the claims which he or she makes. The elements of an applicant’s case, as it were, are the components of the definition of ‘spouse’ in reg 1.15A. Undoubtedly the decision-maker is required to consider each of those components, and it is not suggested in the present case that the Tribunal did not do so.

51    After referring to the need for a decision-maker to base his or her decision upon the evidence, his Honour rejected Ms Li’s primary contention, stating that (Li at [23]):

Such evidence, however, whether advanced by the applicant or obtained otherwise, is not, in my view, of the same legal nature as the “claims”, made by an applicant for a protection visa, by reference to which the decision whether to grant a visa of the latter kind must be made.

52    Despite the fact that his Honour rejected Ms Li’s primary contentions, his Honour considered that there was another way in which her submissions should be understood. That was “as contending that the Tribunal failed to comply with the command in reg 1.15A(3) to have regard to ‘all the circumstances of the case’” (Li at [24]). Of that requirement, his Honour said “Unavoidably, as it appears to me, this requirement carried with it the obligation to identify what those circumstances were. It is at this point, in my view, that the Tribunal’s treatment of the appellant’s case fell short of what was required” (Li at [24]). Having described how the Tribunal dealt with the evidence before it about Ms Li’s intention to have a child (Li at [24]–[25]), his Honour made the following pertinent observations about the nature of the obligation contained in reg 1.15A(3):

25    It was, I consider, incumbent upon the Tribunal to decide for itself whether that intention existed as a fact (or clearly to dismiss it as inconsequential) for the purpose of including it within, or excluding it from, the “circumstances” to which the Tribunal would then have regard under reg 1.15A(3).

26    … the Tribunal said that it had made its finding “on the basis of the entirety of the circumstances of the relationship”. The difficulty with this statement is that it does not reveal what the circumstances were … So it is not the omnibus nature of the statement that concerns me. My concern arises from the fact that the Tribunal here appears to have glossed over, as it were, the intermediate stage. That is an important stage, because it links what is otherwise just a miscellany of information to the statutory criteria.

27    As mentioned above, I consider that the obligation to identify the circumstances by reference to which the Tribunal makes its decision under reg 1.15A is implicit in the way sub-reg (3) is expressed. For reasons expressed above, I consider that the Tribunal failed to discharge that obligation in the present case.

53    In concluding that the Federal Magistrate had erred in that she “did not appreciate the significance of the way the decision-maker’s obligation was expressed in reg 1.15A(3) as referred to above”, his Honour reiterated the same theme stating that:

28    … the Tribunal’s error was more fundamental than failing to have regard to a relevant consideration: it did not make the findings of fact required to discharge its obligation under reg 1.15A to have regard to all of the circumstances of the relationship.

54    Accordingly, his Honour allowed Ms Li’s appeal and granted writs of certiorari and mandamus directed to the Migration Review Tribunal.

The Tribunal erred in failing to identify and engage with the circumstances of the relationship by reference to the criteria in reg 1.15A

55    In view of the way in which the contentions in this appeal have evolved, I will consider, first, the relevant considerations case put by Ms Sun and then consider her later reliance on the ruling in Li. As can be seen from the summary of her contentions above, Ms Sun has identified four matters (see at [31] above) which she contends were relevant considerations that the Tribunal was bound to consider when it made its decision on her visa application. With respect to the matters in [31(a)] and [31(b)] above, she contends that they became relevant considerations because she provided evidence to the Tribunal about them with the result that they became circumstances of the relationship the Tribunal was bound to consider. Finally, she contends, it should be inferred from the Tribunal’s statement of reasons that it did not consider any of these matters when it made its decision.

56    A convenient starting point for my consideration of these contentions is the distinction Jessup J drew in Li between the claims-based approach which applies to applicants for protection visas under the Refugee Convention reflected in decisions such as Htun, Dranichnikov and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, and applications for a spouse visa such as the present one, where the decision-maker is required to proceed according to prescribed statutory criteria. As Jessup J observed in Li, with the former applications, where the material which is submitted by an applicant puts forward an identifiable claim, that claim must be considered by the Tribunal rather than being treated “merely [as] pieces of evidence in support of a contention” (see Li at [22]). With respect to the latter category, as Jessup J also observed in Li: “the elements of an applicant’s case … are the components of the definition of ‘spouse’ in reg 1.15A” (see Li at [23]). A similar distinction was drawn, albeit in a different context, by the Full Court in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; [2003] FCAFC 214. In that matter, in discussing a medical report prepared by a Dr Adam which was claimed to bear on the question whether the applicant was totally and permanently disabled, the Court said (at [32]):

The factors that a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the power to make that decision, not by the pieces of “evidence” submitted to the decision-maker by a person affected by the decision.

57    I respectfully agree with the reasoning of Jessup J in Li on this distinction between the critical elements requiring consideration being defined by the claims made by the applicant as against those elements being defined by an Act or Regulation. Furthermore, I respectfully agree with his Honour’s characterisation of a matter such as the present one as falling into the latter category. Accordingly, I reject Ms Sun’s contention that the materials she had placed before the Tribunal and the contentions that she made to it resulted in the matters in [31(a)] and [31(b)] becoming relevant considerations that the Tribunal was bound to consider. Instead, in this matter, as in Li, the relevant considerations fall to be determined by reference to the provisions of s 5F of the Act and reg 1.15A, not the pieces of evidence, or the claims, that Ms Sun advanced to the Tribunal. For the same reason, I consider Ms Sun’s reliance upon decisions such as Klychev v Minister for Immigration and Border Protection [2016] FCA 1356 (Klychev) and Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 (Pokharel) is misplaced. It follows that it is not necessary to examine the Tribunal’s statement of reasons to determine whether or not the Tribunal considered the matters in [31(a)] and [31(b)] above.

58    These conclusions do not, however, apply to the matters in [31(c)] and [31(d)] above. On their face, those matters are among the matters proscribed in reg 1.15A(3) and, as such, are relevant considerations to which the Tribunal had to have regard, or consider, in determining Ms Sun’s application. This brings me to the “more fundamental” error which Jessup J identified in Li. The first question posed by Li is whether the Tribunal in this matter was required to approach its task by identifying the circumstances of the married relationship that were pertinent to the application before it by reference to the matters in reg 1.15A(3), and to make any necessary findings of fact for that purpose, so that it could then move to consider all those circumstances, as required by reg 1.15A(2). If the answer to that question is in the affirmative, the second question posed is whether the Tribunal’s statement of reasons discloses that it approached its task in that manner.

59    In answering the first question, it is necessary to deal, first, with the Minister’s submission that the decision in Li is clearly or plainly wrong (see Undershaft No 1 v The Commissioner of Taxation (2009) 175 FCR 150; [2009] FCA 41 at [86] per Lindgren J). In making that submission, the Minister contended that, contrary to the effect of the reasoning in Li, reg 1.15A does not require the Tribunal to identify each and every circumstance of the relationship and make findings of fact in respect of all of those circumstances. While I accept the latter proposition as accurate, I reject the premise of the former. In Li, Jessup J did not decide that reg 1.15A required that kind of approach to the circumstances of the relationship. Instead, his Honour made the compelling point, in my view, that, before the Tribunal could have proper regard to all the circumstances of the particular married relationship in question, as required by reg 1.15A(2), it had to identify what those circumstances were and to make any necessary findings of fact for that purpose. Only then could it comply with the “command” contained in reg 1.15A(2) (in Li, reg 1.15A(3)) to consider (in Li, “have regard to”) “all the circumstances of [that] relationship” (in Li, “the case”).

60    The word “all” in reg 1.15A(2) does not therefore require the Tribunal to identify “each and every” circumstance of the relationship, as the Minister has claimed. Instead, it requires the Tribunal to identify those circumstances that are germane to its task of determining whether the relationship in question is a married relationship, as defined in s 5F(2) of the Act. In other words, as was held in Khadgi, it requires the Tribunal to identify those circumstances of the married relationship raised by the application at hand that are of “central or fundamental importance” so that those circumstances can receive close attention. In identifying those circumstances, reg 1.15A(2) requires the Tribunal to consider the non-exhaustive list of matters set out in reg 1.15A(3). The non-exhaustive nature of that list also necessitates the Tribunal identifying whether the matter before it raises any other circumstances of the relationship that call for consideration. However, as the Court said in Khadgi, while the Tribunal will be required to turn its mind to each and every one of the matters prescribed in that list, it is not required to treat all of those matters as being of central or fundamental importance in every matter before it.

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

62    The Minister’s other submissions can be disposed of briefly. For the reasons stated above, I consider Li is quite consistent with Khadgi and the other decisions to which the Minister referred. Similarly, there is no inconsistency between Li and the requirements of s 368 of the Act, or the decision in Yusuf. As was explained in Yusuf, the equivalent section to s 368 required the Tribunal to prepare a written statement of reasons that, among other things, sets out its “finding on any material questions of fact”. If Li is correct, which I consider it is, that means that the Tribunal’s written statement of reasons in this matter should set out any findings of fact it made to identify the pertinent circumstances of Ms Sun’s married relationship in accordance with the approach I have outlined above. Finally, I do not consider Li is relevantly distinguishable. My reasoning above demonstrates why I consider it applies in the circumstances of this matter.

63    For these reasons, I consider the first question posed by Li is to be answered in the affirmative. The next step is to consider whether the Tribunal’s statement of reasons discloses that it approached its task in that manner.

64    From a fair reading of the Tribunal’s statement of reasons, and one undertaken without “an eye keenly attuned to the perception of error”, I do not consider that it did. My reasons for reaching this conclusion are as follows.

65    First, while the direction contained within reg 1.15A(2) is inferentially mentioned in the Tribunal’s statement of reasons (at [6] set out at [10] above), it is only mentioned obliquely and in passing. By that I mean, apart from recording that “in forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship”, there is no acknowledgement that this is expressed as a direction in reg 1.15A(2), and nor is there any indication of any attempt to identify which of the numerous matters prescribed by reg 1.15A(3), or which other matters not contained within that non-exhaustive list of matters, comprised the circumstances of Ms Sun’s married relationship that were pertinent to, or of central or fundamental importance, and therefore required close consideration in determining her application. This is reinforced by the fact the word “matters” in the statement quoted above refers to the matters set out in s 5F(2)(a) to (d) of the Act (see at [4] above), not the matters listed in reg 1.15A(3). It necessarily follows that there is also no indication of any attempt to make any findings of fact that may have been necessary for the purposes of that identification process. Otherwise, the regulation that prescribes this approach, reg 1.15A(2), is not expressly mentioned anywhere in the Tribunal’s statement of reasons and, as for reg 1.15A(3), it is mentioned once (at [6]) in the sentence following that quoted above as follows: “This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3).” Read together, these two statements do not convey any appreciation of the direction in reg 1.15A(2), or the role of the matters set out in reg 1.15A(3) in complying with that direction.

66    Secondly, the only other mention of reg 1.15A in the Tribunal’s statement of reasons is expressed in terms that indicate the Tribunal failed to appreciate that its task required it to identify the circumstances of Ms Sun’s married relationship in the manner described above. That mention occurred at [15] of its statement of reasons (set out at [14(a)] above) where the Tribunal said it “acknowledges” that Ms Sun’s ability to communicate with her husband was not a requirement of reg 1.15A. Regardless of whether the Tribunal was led into this statement by a submission made by Ms Sun’s representative, in my view, there are at least two difficulties with it. First, it appears, without expressly mentioning reg 1.15A(3), to treat the matters set out in it as an exhaustive list which, as I have observed above, it plainly is not. Secondly and more importantly, it shows that the Tribunal did not appreciate that it was required by reg 1.15A(2) to consider all the pertinent circumstances of Ms Sun’s married relationship. Even though it is not mentioned in the list of matters in reg 1.15A(3), plainly the perceived inability of a married couple to communicate is a circumstance of their relationship which would fall within the phrase “all the circumstances of the relationship” in reg 1.15A(2). This is in a similar category to the desire to have a child that was raised as a circumstances in Li, albeit that, in this case, it is a circumstance that would tend to counter against the existence of a married relationship. Nonetheless, if the Tribunal were approaching its task in the manner described above, it would be expected, when this matter was expressly raised, to ask itself the question whether Ms Sun’s ability to communicate with her husband was a circumstance of their married relationship that fell to be considered as a circumstance within the direction in reg 1.15A(2). It would also be expected to make any necessary findings of fact required for the purposes of that consideration. The fact the Tribunal did neither of these things indicates, in my view, that it misconceived its task.

67    Thirdly, aside from the dearth of references to the requirements of reg 1.15A, and the absence of any sign that the Tribunal approached its task in the manner identified above, the critical expression “circumstances of the relationship” in reg 1.15A(2) is mentioned only twice in the Tribunal’s statement of reasons. The first is the oblique and passing reference to it mentioned above (at [6] set out at [10] above). The second appears near the end of the Tribunal’s statement of reasons where it makes another passing reference to that expression as follows: “However, having regard to the combination of the Tribunal’s concerns outlined above, and having considered the entirety of the evidence and all the circumstances of the relationship, …” (at [27] set out at [22] above). As with the earlier reference to this expression, there is no attempt in this statement to identify which circumstances of the relationship the Tribunal had in mind (cf the similar statement in Li at [26] set out at [52] above).

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

69    It follows that, rather than failing to have regard to relevant considerations, the Tribunal committed the same fundamental error as occurred in Li, namely failing to approach its determination of Ms Sun’s application in the manner required of it by reg 1.15A(2). In reaching this conclusion, I had regard to the fact that, in its statement of reasons, the Tribunal appears to have carefully considered the evidence Ms Sun placed before it and even to have carefully examined that evidence by reference, at least inferentially, to many of the matters proscribed in reg 1.15A(3). I have described those parts of the Tribunal’s statement of reasons in some detail above (at [14]–[23] inclusive). However, despite this careful consideration, I remain unable to discern any indication that the Tribunal considered that evidence, or Ms Sun’s application generally, by reference to all the circumstances of her married relationship as required by reg 1.15A(2). Finally, I should add that I have also had regard to the principles outlined above, including that Ms Sun bears the onus in this matter, and that an inference of this kind is not to be drawn lightly from the Tribunal’s statement of reasons.

Conclusion

70    For these reasons, I have concluded that the Tribunal failed to carry out its review of the delegate’s decision in accordance with the apposite provisions of the Act and Regulations. That being so, I consider (with respect) that the primary judge erred by failing to detect this error on the Tribunal’s part when determining Ms Sun’s second ground of review. Accordingly, I will make orders setting aside the Tribunal’s decision and requiring it to conduct its review of the delegate’s decision in accordance with law.

Associate:    

Dated:    27 October 2017