FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 27 May 2016 are set aside and, in lieu thereof, the following orders are substituted:

(a)    a writ of certiorari issue, directed to the second respondent, quashing the decision and orders made on 4 August 2015;

(b)    a writ of mandamus issue, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 2 October 2014;

(c)    the first respondent is to pay the applicant’s costs of an incidental to the application for judicial review filed on 19 August 2015.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant, Mr Singh, is a citizen of India. He arrived in Australia in 2009 as the holder of a student visa. In August 2012 he met an Australian citizen, Ms Kylie Ann Nilson, at a shopping centre. Mr Singh and Ms Nilson became married on 4 March 2013. In August of that year, Mr Singh lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa on the basis of his relationship with Ms Nilson. A delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate’s decision was affirmed by the then-named Migration Review Tribunal.

2    Mr Singh made an application for judicial review of the Tribunal’s decision to the Federal Circuit Court of Australia (FCC). The primary judge dismissed the application: Singh v Minister for Immigration & Anor [2016] FCCA 1171. This is an appeal from that judgment.

VISA CRITERIA

3    The criteria for the grant of a partner visa included those set out in Pt 820 of the Migration Regulations 1994 (Cth). Relevantly, it was necessary that the Minister be satisfied that Mr Singh was the “spouse” of Ms Nilson within the meaning of s 5F of the Migration Act 1958 (Cth): see cl 820.211(2) of the Regulations. Section  5F provides:

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

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

(c)    the relationship between them is genuine and continuing; and

(d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note:    Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

4    Regulation 1.15A(2) provides that if the Minister is considering an application for a partner visa, the Minister must consider all of the circumstances of the relationship, including the matters set out in reg 1.15A(3). The matters 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 Tribunal’s reasons

5    The Tribunal accepted that Mr Singh and Ms Nilson were validly married for the purposes of s 5F(2)(a) of the Act. It was not, however, satisfied that at the time of the visa application they had a mutual commitment to a shared life as husband and wife to the exclusion of all others as required by s 5F(2)(b), nor that the relationship between them was genuine and continuing as required by s 5F(2)(c), nor that they lived together, or did not live separately or apart on a permanent basis, as required by s 5F(2)(d). As a consequence, it was not satisfied that Mr Singh was Ms Nilson’s spouse. The delegate’s decision to refuse the visa was affirmed on that basis.

6    This appeal concerns the specific findings made by the Tribunal in its consideration, or purported consideration, of the matters referred to in reg 1.15A(3)(d) concerning the nature of the commitment of Mr Singh and Ms Nilson to each other and the genuineness of their relationship. On that topic, the Tribunal said, among other things (at [73]):

The applicant said he is a Sikh and the sponsor is Christian. He said that he has ‘not bothered’ to ask her to which church she belongs. The Tribunal regards his lack of interest in the sponsor’s church as an indicator of his lack of support for her.

7    It was submitted on this appeal that the Tribunal’s findings concerning Mr Singh’s want of interest in Ms Nilson’s church was one of only two evidentiary matters relied upon by the Tribunal as demonstrating Mr Singh’s lack of commitment to Ms Nilson for the purposes of reg 1.15A(3)(d). The other finding concerned Mr Singh’s failure to investigate changing his work schedule so as to fulfil their shared plans to have a child together.

8    The Tribunal made a further finding that Mr Singh had not spoken with Ms Nilson about the possibility that she might accompany him to India should his application for review before the Tribunal be unsuccessful. The Minister submitted that this finding, too, bore on the Tribunal’s assessment of the “commitment” issue.

9    These findings are to be read in the context of the Tribunal’s reasons as a whole insofar as they bore on other matters mandated for consideration under the Regulations. Other aspects of the Tribunal’s decision are succinctly summarised in the Minister’s supplementary written submissions, which I gratefully reproduce:

3.4    In respect of the financial aspects of the relationship, the Tribunal had regard to, among other things: inconsistent evidence given by the applicant and his sponsor about their payment of rent; the applicant’s unawareness of his sponsor’s receipt of social welfare payments; and the absence of any joint purchase of major assets by the applicant and his sponsor. The Tribunal considered that the applicant and his sponsor lacked knowledge about each other’s financial affairs. The Tribunal was also not satisfied that the sponsor had pooled her financial resources with the applicant.

3.5    In respect of the social aspects of the relationship, the Tribunal considered, among other things, the lack of social interaction with others as a couple. As to the nature of the household, the Tribunal accepted that the applicant and his sponsor had resided at the same address.

(footnotes omitted)

10    The Tribunal concluded that the “totality of the evidence” did not satisfy it that Mr Singh and Ms Nilson “were committed to each other financially or emotionally as spouses in a genuine and continuing spouse relationship”.

REASONS OF the primary judge

11    To succeed on his application for judicial review it was necessary for Mr Singh to demonstrate that the Tribunal had committed jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [13] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); s 474 and s 476 of the Act.

12    Mr Singh appeared self-represented before the primary judge. His grounds of review were relevantly expressed in the following terms:

Paragraph 73, Tribunal member made a finding ‘The applicant said he is a Sikh and the sponsor is Christian. He is said that he has ‘not bothered’ to ask her to which church she belongs. The tribunal regard his lack of intrest in the sponsor’s church as an indicator of his lack of support to her.’

I never asked my wife more in detail about her religion nor has she asked me. So what? Myself and my wife are ok about it. My wife also doesnot know much about my religion nor I have asked her to know about it. Its upto us we want to know about each other religion and discuss it. Do people who do not believe in religion cannot be in a relationship or people who don’t discuss about religion are all ungeniunely married. It seems to me that Tribunal member follows a particular faith and is upset about me not knowing more about church. Tribunal is supposed to function impartial and unbiased. A opinion of an individual about ones faith and interest about religion should not matter to Tribunal while making a decision of application. Tribunal member made a finding ‘lack of interest·in sponsors church as an indicator of his lack of support for her’. Tribunal member made jurdictional error in decision.

13    The primary judge categorised this complaint as “a complaint as to a finding of fact, or in other words, a complaint that goes to the merits of a decision”. Errors of fact, his Honour said, were “not jurisdictional errors”. Mr Singh’s complaints were, the learned judge concluded, non-reviewable complaints of kind described by the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [10]):

In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.

SUBMISSIONS ON THE APPEAL

14    Mr Singh commenced this action as a self-represented litigant. His appeal was filed out of time and his proposed grounds of appeal were expressed informally and in broadly the same terms as the grounds for judicial review relied upon before the primary judge.

15    The Court referred Mr Singh for legal assistance in accordance with r 4.12 of the Federal Court Rules 2011 (Cth). Mr McDonald of Counsel appeared for Mr Singh pursuant to the referral. Shortly after Counsel’s engagement, the notice of appeal was amended and an extension of time in which to appeal was granted. The amended grounds of appeal are:

The Federal Circuit Court erred in holding that the decision of the Tribunal was not affected by jurisdictional error, in that the Tribunal misunderstood and/or misapplied the applicable law and in particular:

1.    Misunderstood, and consequently failed to have regard to, the mandatory consideration specified in reg. 1.15A(3)(d) of the Migration Regulations in that:

a.    The Tribunal regarded the Applicant’s lack of interest in his wife’s church as indicative of a lack of support for her and lack of commitment to her but made no finding as to whether that was a matter in respect of which the applicant’s wife required or desired any support and, in the absence of such a finding, the applicant’s attitude to his wife’s church was not relevant to the consideration specified in regulation 1.15A(3)(d)(iii); and

2.    Misunderstood and/or misapplied the requirement in section 5F(2)(c) of the Migration Act that ‘the relationship between [the applicant and his wife] is genuine and continuing’.

16    The second ground of appeal is pursued only to the extent that it would follow consequentially upon the first ground being made out.

17    Submissions on the appeal focused upon the Tribunal’s finding concerning Mr Singh’s lack of interest in Ms Nilson’s church (the lack of interest finding). It was submitted that the Tribunal erred by misconstruing reg 1.15A(3)(d)(iii) and, proceeding on the erroneous construction, wrongly considered the lack of interest finding to be probative of the matters it was required to consider.

18    Three issues arise:

(1)    whether the lack of interest finding informed (rightly or wrongly) the Tribunal’s assessment of the particular subject matter referred to in reg 1.15A(3)(d)(iii);

(2)    if so, whether the Tribunal misapprehended the meaning of reg 1.15A(3)(d)(iii); and

(3)    if so, whether the Tribunal’s misapprehension of the meaning of the provision so affected its decision so as to constitute jurisdictional error?

Did the finding bear on the Tribunal’s assessment of the matters referred to in reg 1.15A(3)(d)(iii)?

19    In Ally v Minister for Immigration & Citizenship [2008] FCAFC 49 Moore, Goldberg and Jacobson JJ said of the mandatory considerations in reg 1.15A (at [40]):

The third ground complains of the Federal Magistrate’s use of the term ‘impressionistic criteria’ at par [44], when describing the criteria for the visa. In granting leave to appeal, Spender J said that it is open to argument whether the factual integers in Reg 1.15A can properly be described as ‘impressionistic criteria’: Ally v Minister for Immigration and Citizenship [2007] FCA 1373 at par [37]. However, we see no error in the use of this description as an appropriate label for the criteria of a mutual commitment to a shared life as husband and wife to the exclusion of all others and a relationship that is genuine and continuing.

20    The impressionistic and evaluative nature of the Tribunal’s task is to be taken into account when drawing implications from its reasons. The reasons are not to be construed “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

21    Counsel for Mr Singh submitted that the lack of interest finding was viewed by the Tribunal as relevant to, and only relevant to, its consideration of the “commitment” criterion under reg 1.15A(3)(d) and, more specifically, to the subject matter to which reg 1.15A(3)(d)(iii) is directed. Implicitly, the Tribunal’s reasons indicate that it considered Mr Singh’s lack of interest in his wife’s church as demonstrating, in and of itself, a lack of emotional support for her, so it was submitted.

22    For the Minister it was submitted that a lack of interest by a husband in the religious life of his wife legitimately bore on the broader assessment to be undertaken under reg 1.15A(3)(d) of the nature of the commitment between the two and, furthermore, the Tribunal was entitled (indeed obliged) to draw on the finding for the broader purpose of assessing all of the circumstances of a relationship, such was its express statutory task. I accept the Minister’s submission in this regard. More will be said about it below. However, the submission does not provide an answer to the question presently under consideration. It was not contended on the appeal that the lack of interest finding was an irrelevant consideration in the Tribunal’s overall assessment of whether there existed a genuine marriage. Rather, the contention was that the Tribunal erroneously drew on the finding for the purposes of its assessment or purported assessment of the particular mandatory consideration under reg 1.15A(3)(d)(iii).

23    Consistent with what was said in Ally, the Tribunal was not required to structure its reasons in a cubist fashion so as to mechanically address each of the considerations specified in reg 1.15A(3). It was entitled to address the relevant criteria in a loosely structured way. However, in the present case, the lack of interest finding falls under the heading “Commitment” and it may readily be inferred that the Tribunal was there directing its attention to, at least, the mandatory consideration specified in reg 1.15A(3)(d).

24    In addition, on a natural reading of the reasons as a whole, I am satisfied that the Tribunal did make, or purport to make, an assessment of the more particular matter referred to in reg 1.15A(3)(d)(iii). That is consistent with submissions advanced on behalf of the Minister to the effect that the Tribunal adverted to the mandated considerations in reg 1.15A(3) and was “alive” to its obligation to consider each of the matters referred to therein. I am also satisfied that the lack of interest finding was brought to bear in making that assessment. That is evident from the Tribunal’s conclusion, that its lack of interest finding was an indicator of Mr Singh’s “lack of support for” Ms Nilson.

25    Moreover, it is implicit from the reasons, read as a whole, that the lack of interest finding outweighed other evidence capable of supporting a more positive conclusion on the mandatory consideration in issue. After dealing with the evidence of Mr Singh’s subjective attitudes and outward conduct toward Ms Nilson, the Tribunal made passing reference to claims made by Mr Singh and Ms Nilson that they sought comfort from each other, before proceeding to find that there was a lack of commitment, taking into account “the evidence that demonstrates the applicant’s lack of commitment as found above”. The claims by Mr Singh and Ms Nilson to the effect that they sought comfort from each other were implicitly rejected, left undetermined or diminished in importance because of (or at least partly because of) contrary evidence which included the lack of interest finding.

26    Finally in relation to this question, with the exception of the passages to which I have referred, there is no explicit finding in the Tribunal’s reasons as to its evaluation of the particular subject matter referred to in reg 1.15A(3)(d)(iii). The Tribunal has either implicitly considered (or at least purported to consider) the subject matter, or it has erred by failing to make any assessment at all of the degree of emotional support the parties to the relationship drew from each other. The former interpretation of the reasons is to be preferred over the latter. Once that is accepted, it may be fairly inferred that the Tribunal considered the lack of interest finding to be probative of the issue it was required to determine.

Did the Tribunal misconceive the assessment required by reg 1.15A(3)(d)(iii)?

27    In written submissions, Mr McDonald submitted that reg 1.15A(3) was:

… concerned with support of a particular kind: ‘emotional support that the persons draw from each other’. It is to be observed that the word ‘support’ appears as part of the compound noun, ‘emotional support’; it is not used as a verb (ie, ‘to support’). Moreover, the concept of emotional support contemplated by reg 1.15A requires that attention be given not just to the actions or attitude of one spouse but to the effect of those actions or that attitude on the other spouse.

28    The provision was not, Counsel submitted, concerned with the bare fact of whether one person in a relationship takes an interest in a particular aspect of the life of the other. The Tribunal’s misunderstanding of the criterion in reg 1.15A(3)(d)(iii) was evidenced by its narrow focus on what Mr Singh did or did not do, rather than on the degree of emotional support Ms Nilson drew from him.

29    Although a lack of interest by a husband in the spiritual life of his wife may legitimately bear on the question to be considered under reg 1.15A(3)(d)(iii), whether that was so in any particular case must depend on an assessment of the wife’s subjective emotional needs. In the present case, the Tribunal made no enquiries of Ms Nilson as to whether Mr Singh’s lack of interest in her religious life was a factor affecting her emotionally or in any other way. More specifically, it made no enquiries or findings as to whether Mr Singh’s lack of interest in her church affected the degree of emotional support she drew from him. Mr Singh advanced the same point before the primary judge when he said: “I never asked my wife more in detail about her religion nor has she asked me. So what? Myself and my wife are ok about it”. In the present case, it was submitted, the lack of interest finding was not probative of the matters referred to in reg 1.15A(3)(d)(iii) except to the extent that it affected the degree of emotional support the parties to the relationship might draw from each other. The critical verb in the provision is “draw”.

30    These submissions are to be accepted.

31    The question is not the degree to which a spouse “supports” his or her partner by reference to an objective standard of the gratuitous or unsolicited support one spouse should give to the other. Nor is the assessment to be made by reference to the decision-maker’s idiosyncratic view of what constitutes a supportive husband or wife. The proper focus is on the nature and extent of the emotional support subjectively desired by one party to the relationship and the degree to which those desires are fulfilled in fact by the other party. The Tribunal in the present case did not undertake all of the enquiries necessary to make that assessment and its failure to do so evidences that it misconstrued the mandatory consideration prescribed in reg 1.15A(3)(d)(iii).

32    The learned primary judge erred in characterising the error alleged by Mr Singh in the judicial review proceedings as amounting to an attack on the merits of the lack of interest finding, or an attack on the merits of the Tribunal’s ultimate conclusion. The primary judge failed to identify and determine the question of construction arising in the judicial review proceedings. There is appealable error in that respect.

33    Again, it is to be acknowledged that the degree to which the parties to the relationship draw emotional support from each other is one of a number of matters bearing on the more general assessment of the nature of their commitment to each other which, in turn, informs the decision-maker’s assessment of whether there exists a marriage relationship within the meaning of s 5F of the Act. All of that bears on the third question arising on the appeal.

Is the error jurisdictional?

34    In Craig v South Australia (1995) 184 CLR 163 the High Court said (at 177) that a Tribunal falls into jurisdictional error if it “misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.” The Court continued (at 179) (emphasis added):

If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

35    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said of the list of errors in Craig (at [82]) (emphasis added):

… Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …

36    The Minister submitted, correctly, that subregs 1.15A(3)(d)(i), (ii), (iii) and (iv) do not constitute an exhaustive list of the matters going to the nature of Mr Singh and Ms Nilson’s commitment to one another. It was open to the Tribunal to rely on the lack of interest finding as properly informing the nature of their commitment and it was not necessary that the Tribunal find that “any lack of support necessarily fell within the specific terms” of any one of the subregulations in reg 1.15A(3).

37    However, for the reasons given above, the Tribunal was required to make an evaluative assessment of the subject matter referred to in reg 1.15A(3)(d)(iii), it did in fact purport to do so and it erred in law in the course of doing so. It does not assist the Minister to say that the lack of interest finding could nonetheless be taken into account in the Tribunal’s consideration of all of the circumstances of the relationship. The question is whether the Tribunal’s misunderstanding of the meaning of a particular mandated consideration so affected the outcome as to constitute jurisdictional error. In my opinion it did.

38    The prescription in reg 1.15A of the matters to which the Tribunal must have regard is a prescription that affects the nature and limits of the decision-maker’s functions or powers: Nduta v Minister for Immigration and Border Protection [2016] FCA 1596, at [36] (Rares J); compare R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 (Gibbs CJ) and at 338 (Mason J). To misconstrue that provision is to misconstrue the nature and limits of the functions and powers in question, not only because the facts were assessed against a misconceived meaning of the law, but because the law was not in fact applied in accordance with its correct meaning. By misapprehending the subject matter to be considered, the Tribunal did not in fact make a lawful assessment of the degree to which Mr Singh and Ms Nislon drew emotional support from each other. It cannot be said that a lawful application of reg 1.15A(3)(d)(iii) could not have yielded a different result. There was evidence before the Tribunal capable of supporting a more favourable assessment of the issue it was required to consider, and a more favourable conclusion on the specific issue may have weighed favourably for Mr Singh in the overall evaluation.

39    Expressed another way, whilst considerations of weight are for the Tribunal, it cannot be said that the relative weight to be given to the various considerations (whether mandatory or not) would have been no different had the mandatory assessment in question been correctly understood and properly performed.

40    The appeal should be allowed. The orders of the primary judge will be set aside and in lieu thereof orders will be made providing for the remittal of the review application to the Tribunal, differently constituted, for reconsideration in accordance with these reasons.

Associate:

Dated:    9 November 2017