FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court (the FCC) on 25 January 2018 are set aside.

3.    There be issued a writ of certiorari quashing the decision of the Migration Review Tribunal (the Tribunal) made on 30 June 2015.

4.    There be issued a writ of mandamus directed to the Administrative Appeals Tribunal requiring it to hear and determine in accordance with law the Appellant’s application for review lodged with the Tribunal on 5 June 2014.

5.    The First Respondent pay the Appellant’s costs of and incidental to the appeal to this Court and of and incidental to the Appellant’s application for judicial review in the FCC.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant appeals from the judgment of the Federal Circuit Court (the FCC), dismissing her application for judicial review of a decision of the former Migration Review Tribunal (the Tribunal): Nguyen v Minister for Immigration and Border Protection [2018] FCCA 161; (2018) 329 FLR 351. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Permanent Partner (Subclass 801) visa under the Migration Act 1958 (Cth) (the Act).

2    The appellant is a citizen of Vietnam born in 1964, who arrived in Australia in May 2010 on a Prospective Marriage (Subclass 300) visa. She was sponsored by an Australian citizen, also born in Vietnam, and the couple married in Australia in June 2010. Since her arrival in Australia, the appellant has lived in Melbourne.

3    On 27 January 2011, the appellant applied for a Partner (Residence) (Class BS) visa and, in April 2011, she was granted a Temporary Partner (Subclass 820) visa.

4    Clause 801.221 of the Migration Regulations 1994 (Cth) (the Regulations) sets out the requirements for a Permanent Partner visa to be met at the date of the decision on the visa application:

801.221

…

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

…

(c) the applicant is the spouse or de facto partner of the sponsoring partner; …

5    The term “spouse” in this clause is defined in s 5F of the Act. At relevant times it provided:

(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.

6    Regulation 1.15A is a regulation to which subs (3) refers:

1.15A Spouse

(1)     For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

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

(a)     a Partner (Migrant) (Class BC) visa; or

(b)     a Partner (Provisional) (Class UF) visa; or

(c)     a Partner (Residence) (Class BS) visa; or

(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.

(4)     If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

7    On 21 May 2014, the delegate refused to grant a Permanent Partner visa because she was not satisfied that the appellant was the spouse (as defined) of her sponsoring partner.

8    On 30 June 2015, the Tribunal affirmed the delegate’s decision not to grant the appellant a Permanent Partner visa, as it was also not satisfied that the appellant and her husband were in a spousal relationship.

9    On 25 January 2018, a judge of the FCC dismissed the appellant’s application for judicial review, finding that the Tribunal’s decision was not affected by jurisdictional error.

The delegate’s decision

10    An unusual circumstance in the appellant’s application was that, from 2 July 2012 until the Tribunal’s decision on 30 June 2015 (at least), her husband had been in custody in New South Wales. They had perforce been unable to cohabit during this period.

11    During a telephone interview with the delegate in February 2014, the appellant said that her husband had been in jail since 2 July 2012, that she had not attended his sentencing hearing because she could not get time off work, that she had visited him once in prison, and that she had not visited him more often because her lack of English made it difficult for her to travel alone to New South Wales.

12    After the interview, the appellant submitted evidence of a second visit to her husband in prison.

13    The delegate found that the appellant did not meet cl 801.221(2) of the Regulations, based on her concern that, while the husband had spent 21 months in jail, the appellant had visited him only twice, and one of those visits had occurred after the delegate had voiced her concerns about the limited number of visits. Further, the delegate was not satisfied that the appellant and her husband maintained a joint household, were committed to a spousal relationship, provided each other with companionship and emotional support, and had a joint commitment to a shared life.

The Tribunal’s decision

14    The appellant told the Tribunal on 23 April 2015 that her husband had been arrested in Sydney, having been there for one week “after they argued”. She denied that she and her husband had been separated at this time. The appellant said she did not know the details of her husband’s arrest, but that he had been in custody since July 2012 and was due to be released on 1 July 2015.

15    Oral evidence was given by the appellant’s husband via video link from prison in New South Wales. Oral evidence was also given by Ms Tran, with whom the appellant lives.

16    The appellant’s migration agent provided additional documents to the Tribunal, including correspondence between the couple and evidence that the appellant had visited her husband five times between June 2014 and March 2015. These included occasions when the husband had had day release.

17    In its decision on 30 June 2015, the Tribunal set out the meaning of the term “spouse” at [21], as follows:

'Spouse' is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). 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 visa applicant's and sponsor's household and their commitment to each other as set out in r. 1.15A(3), which is extracted in the attachment to this decision.

18    In relation to the appellant’s visits to her husband in jail, the Tribunal stated, at [23]:

The applicant told the Tribunal that she had visited the applicant in jail five times between June 2014 and March 2015. The Tribunal asked her about the visit she had previously mentioned to the delegate and she agreed that she had also visited the sponsor in October 2013. The Tribunal noted that she had only visited the sponsor once in 21 months at the time she was interviewed and she claimed that she had to ask her cousin to take her there and her husband does not want her to go there. The Tribunal noted that she had visited the sponsor twice in June 2014 just after her visa was refused and once in March 2015 just after she was invited to the Tribunal hearing. Her response was that she and the sponsor were in a genuine relationship and she loved him.

19    The Tribunal recorded responses the appellant had given regarding her and her husband’s separate travel to Vietnam in 2012. The appellant said that they had travelled one week apart because her husband had gone to visit her sick mother and she had not been approved leave from work at the time. The Tribunal member said that the appellant had been unable to explain why her husband had not waited for her so that they could travel together.

20    The appellant told the Tribunal member that she had not seen her husband’s family in Melbourne while he was in prison, because they did not accept her.

21    In referring to the evidence given by Ms Tran, the Tribunal stated:

[26]    The witness Ms Tran told the Tribunal that she lives with the applicant and knew her in Vietnam. She said that the applicant has lived with her since she came to Australia in 2010. She said that she has lived in the same house for 7 years since 2008 and that the sponsor moved in when he sponsored the applicant to Australia. However the sponsor told the Tribunal that he had lived at that address since 2006 or 2007.

[27]    Ms Tran told the Tribunal that she was the person who took the applicant to visit the sponsor in jail. She was evasive when asked about how many times she had taken the applicant and finally said 10 to 15 times at which point the applicant interjected. This inconsistency was put to the applicant for comment. Her migration agent later responded in writing after the hearing and claimed that the evidence provided by Ms Tran was blatantly false and not credible.

22    The Tribunal accepted that the appellant and her husband were validly married for the purposes of s 5F(2)(a) of the Act.

23    The Tribunal referred to other aspects of the relationship between the appellant and her husband and concluded:

[35]    At the hearing the Tribunal put to the applicant for comment the matters that were of concern and relevant to the nature of the commitment between the couple. The couple had given inconsistent evidence about a number of issues including their separate travel to Vietnam in 2012, the nature of the sponsor's business affairs and when his business closed down, the nature of their telephone communication, when he had day leave, his family composition, and the number of visits the applicant had made to the sponsor in prison.

[36]    The applicant chose to respond to these matters in writing after the hearing and did do on 7 May 2015. It was claimed that any inconsistency between the couple's evidence at the hearing was largely caused by the sponsor suffering memory loss from being in prison. The Tribunal finds this explanation self-serving and whilst it has considered the response, its concerns about the above matters still stand.

[37]    In considering the issue of commitment the Tribunal is most concerned that the applicant did not attend the sponsor's court hearing and that she visited him in jail once in the 21 months between his incarceration in July 2012 and October 2013. She is then said to have visited him 5 times between June 2014 and March 2015. The Tribunal acknowledges that there is evidence that the applicant booked accommodation near the prison where the sponsor is held and took part in the sponsor's day leave. Nevertheless the Tribunal considers that the level of involvement is far less than it would expect for a couple in a genuine married relationship. In conclusion the Tribunal considers that these concerns raise significant doubt as to whether the parties have a mutual commitment to one another to the extent contemplated in the Regulations.

[38]    In conclusion, the Tribunal is not satisfied that at the time of decision the applicant and the sponsoring partner had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the relationship is genuine and continuing at the time of its decision. The applicant therefore does not meet the requirements of s5F(2)(b) and (c) for a married relationship.

[39]    Additionally, the Tribunal is not satisfied that at the time of decision the applicant and the sponsoring partner live together or do not live separately and apart on a permanent basis. Accordingly, the applicant does not meet the requirements of s5F(2)(d) for a married relationship.

[40]    The Tribunal therefore finds that at the time of the decision the applicant is not the spouse, within the meaning of s.5F, of the sponsoring partner, who is the person who was specified as the applicant's spouse in the Subclass 820 application. Therefore, the Tribunal finds that the applicant does not meet the criterion contained in cl.801.221(2)(c) for the grant of a Subclass 801 visa.

[41]    Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet subclause 801.221(2)(c) and this means she cannot meet cl.801221(2). Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5), (6) or (8).

24    On this basis, the Tribunal affirmed the delegate’s decision not to grant the appellant a Permanent Partner visa.

Judicial Review in the Circuit Court

25    The appellant’s application in the FCC contained three grounds. It is not necessary to identify these grounds or the way in which the FCC Judge dealt with them because, on the appeal, the appellant abandoned reliance on them.

26    At the hearing in the FCC, the appellant sought leave to argue a fourth ground, namely:

4.    Further or alternatively, the Second Respondent committed jurisdictional error by failing to consider all the applicant’s claims and/or their component integers.

Particulars

The Second Respondent failed to consider the claims made in the statutory declarations of Thai-Ha Nguyen and Lan Thu Tran.

(Footnote omitted)

27    The FCC Judge noted that the statutory declarations of Thai-Ha Nguyen and Lan Thu Tran had been made in 2010, four and a half years prior to the Tribunal’s decision. The Judge considered that it was open to a reader to conclude that the cogency of the information contained in the declarations was “lightweight”, at [61]. On that basis, the Judge considered it unremarkable that the Tribunal had made no reference to the declarations as they contained “next to no useful material” and it had not been necessary for the Tribunal to refer to every piece of information put before it.

28    Accordingly, the Judge considered that the proposed ground was destined to fail and that there was no useful purpose in granting leave to the appellant to rely upon it.

Appeal in this Court

29    On the appeal, the appellant sought to pursue two grounds. The two grounds had some overlap but they do involve different considerations and it is appropriate to address them separately.

Ground 4

30    Ground 4 in the Notice of Appeal is as follows:

The [FCC] erred in not finding that, further or alternatively, the Second Respondent committed jurisdictional error by failing to consider all the applicant’s claims and/or their component integers.

Particulars

The Second Respondent failed to consider the claims made in the statutory declarations of Thai-Ha Nguyen and Lan Thu Tran.

As can be seen, this ground replicates, almost exactly, the proposed ground for which the appellant had been refused leave in the FCC. Despite that, the appellant’s counsel sought leave to pursue the ground in this Court, in accordance with the principles discussed in cases such as Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Dovuro Pty Ltd v Wilkins [2003] HCA 51, (2003) 215 CLR 317 at [151]; and in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52, (2016) 243 FCR 220 at [90].

31    In my opinion, those principles are not applicable in the present context. That is because the appellant did seek to agitate this ground in the FCC, but had not been permitted to do so. Strictly speaking therefore, the appellant should appeal against the refusal of the grant of leave to advance that ground. I will treat Ground 4 as raising such a complaint. The resolution of the ground will still require consideration of its merits because, as noted earlier, the FCC Judge’s view that the ground lacked merit was the sole basis for his refusal of leave for the ground to be advanced. That is to say, the FCC Judge did not rely on any other discretionary considerations for the refusal of the grant of leave.

32    Counsel for the Minister accepted that, in the event that the ground was upheld, it would be appropriate for the Court to give effect to its conclusion in the same way as would be the case had the FCC Judge granted the appellant leave to agitate the ground.

33    The appellant’s migration agent, Mr Hammond, had provided the Department with a number of documents in support of the appellant’s application for a Partner visa, some (including two statutory declarations from supporting witnesses made on 20 December 2010) accompanying the application received by the Department on 27 January 2011, and others (including two further statutory declarations from supporting witnesses made on 24 December 2012) on 19 February 2013. It is the two declarations made on 20 December 2010 which provide the subject matter for Ground 4. The first was from Thai-Ha Nguyen who deposed:

I met Van Son Thieu when I was young. We were living near to each other in Fitzroy. We have been friends for a long time and now work together. About 2-3 years ago Son started talking about Hue who he was planning to marry. He went back to Vietnam to see her. I met Hue when she arrived in Australia about 8 months ago.

My wife and I and Son and Hue go out for dinner together on a regular basis. I work with Son so I see that he is very much in a genuine relationship. I have been to Son’s house and see that he and Hue are living together as a married couple. I believe they are in a relationship that will go on for a long time.

34    The second statutory declaration made on 20 December 2010 was from Lan Thu Tran, who deposed (relevantly):

My family and Hue’s family were friends in Vietnam. We lived very close to them. I have stayed in contact with Hue after coming to Australia and visited her there (Vietnam). I have seen more of Hue since she came to Australia. I met Son because we were living nearby in Tullamarine. We have been working together now for about 7 years.

Hue is also my second cousin so since she has come to Australia Son and her have come to family celebrations with us. They also live near us in Sunshine and we visit each other’s houses. Son and Hue are in love and I believe their relationship is genuine. When they come to family occasions they come as a married couple. I believe theirs will be a long and successful marriage.

35    It was common ground that the Tribunal’s reasons contain no reference to either of these declarations.

36    Counsel for the appellant submitted that the absence of any mention by the Tribunal member of the two statutory declarations made in December 2010 warrants the inference that the Tribunal member did not consider them. He submitted that two additional considerations supported that inference. The first is that the Tribunal member did advert to the two statutory declarations made in December 2012 and gave reasons for concluding that they were of little weight. Had the Tribunal member adverted to the two earlier declarations and had considered that they were of little weight, it is likely, so the submission ran, that he would have dealt with them in the same way. The second matter is that the two statutory declarations contained material which reg 1.15A(3)(c)(i) and (ii) bound the Tribunal to consider, namely, whether the appellant and her husband represented themselves to others as being married, and the opinions of friends and acquaintances of the appellant and her husband about the nature of their relationship. That being so, it is likely that the Tribunal member would have referred expressly to the two declarations, had she considered them.

37    There is force in those submissions. They are matters to which the FCC Judge did not refer. Instead, the FCC Judge attached significance to the fact that, by the time of the Tribunal’s decision, some four and a half years had elapsed since the declarations were made, that they were in the same handwriting, that they covered essentially the same information and, in the Judge’s view, contained no detail about the nature of the appellant’s relationship with her husband and no detail concerning the evolution of that relationship, at [61]. Those circumstances meant, the Judge concluded, that the two declarations contained “next to no useful material”.

38    I respectfully disagree. Given the husband’s incarceration in a different State from that in which the appellant resided and worked, it was particularly material for the Tribunal to have regard to the couple’s relationship, including the nature and strength of their relationship, at the times when they had been free to act in the way they chose. The two statutory declarations made on 20 December 2010 were directly relevant to these matters. It is true that the two declarations were expressed in conclusory form. However, that was to be expected, given that the statutory declarations were made on the Department’s own pro forma document for such declarations and were, amongst other things, responding to the printed request the document contained, namely:

State whether you believe the relationship of the applicant and his/her partner to be genuine and continuing, and give your reasons for your belief.

It is apparent that each of the declarants addressed that request directly. That being so, the fact that the two declarations “covered essentially the same information” was unremarkable.

39    Further, the fact that the two declarations were completed in the same handwriting appears to be of no consequence. The handwriting appears to be that of Mr Hammond, the appellant’s migration agent. It is readily understandable that he may have provided this assistance to the two declarants.

40    When regard is had to all these matters, I consider that the FCC Judge was wrong to conclude that it was “unremarkable” that the Tribunal had made no reference to the two statutory declarations. Instead, this was a case in which the FCC Judge should have found that the absence of reference to the two statutory declarations made on 20 December 2010 indicated that they had not been considered by the Tribunal. See for example, the approach in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, (2013) 230 FCR 431 at [52]; and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, (2014) 309 ALR 67 at [32]-[34].

41    As the reasons in SZSRS at [46]-[54] indicate, the Tribunal’s failure to consider the first two statutory declarations is not necessarily indicative of jurisdictional error. However, in my opinion, that conclusion is appropriate in this case. As will be seen in the consideration of the appellant’s Ground 5, reg 1.15A(3)(c) made it mandatory for the Tribunal to consider whether the appellant and her husband represented themselves to others as being married to each other and to consider the opinions of their friends and acquaintances about the nature of their relationship. Sub-regulation (3)(d) made it mandatory for the Tribunal to consider the nature of the couple’s commitment to each other, including the duration of their relationship and the length of time during which they lived together. The matters to which the declarants deposed in the statutory declarations of 20 December 2010 went directly to those matters.

42    Further, and in any event, counsel for the Minister accepted that, if the Court was satisfied that the Tribunal member had not considered the two statutory declarations of 20 December 2010, this would constitute jurisdictional error.

43    In these circumstances, there is no difficulty in finding that the FCC Judge should have found that the Tribunal’s failure to consider the two statutory declarations made on 20 December 2010 was indicative of a failure to exercise jurisdiction. That being so, the FCC Judge should have permitted the appellant to rely on Ground 4 and, further, should have upheld it.

Ground 5

44    Ground 5 was added to the appellant’s Notice of Appeal at the hearing, counsel for the Minister not objecting to that course. Ground 5 alleges:

The Tribunal failed to comply with r 1.15A of the Migration Regulations 1994 (Cth).

45    This was not a ground agitated before the FCC Judge but, again, counsel for the Minister not opposing, I granted leave to the appellant to pursue this ground on the appeal.

46    As the decision of the Full Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 provided the foundation for the appellant’s submissions on this ground, it is convenient to refer first to that judgment. In that case, the Full Court (Siopis, Kerr and Rangiah JJ) considered the effect of s 5F of the Act and of reg 1.15A of the Regulations. Their Honours concluded:

(a)    the matters set out in reg 1.15A(3) are relevant considerations which the decision-maker is bound to consider, at [52];

(b)    this requires the decision-maker to bring an active intellectual process to each matter, giving proper, genuine and realistic consideration to each, at [52];

(c)    the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The legislative intention is that the enumerated matters must be addressed, and not merely thought about, at [76]-[77]. However, it is not necessary for the Tribunal to address each of the enumerated matters in a formulaic manner. Nor is it necessary that it make findings upon every piece of evidence bearing upon an enumerated matter. Nevertheless, the Tribunal is required to make findings upon the matters enumerated in reg 1.15A(3), at [82]-[83]; and

(d)    the failure by the Tribunal set out in its reasons a finding concerning any of the enumerated matters may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process in arriving at the decision, at [79].

47    It is evident that the Full Court considered that the decision-maker was bound to consider the subreg (3) matters in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

48    Counsel for the appellant submitted that the Tribunal had not complied with the requirements stated in He and, accordingly, should be seen not to have discharged its statutory task.

49    The Tribunal did not overlook reg 1.15A(3). It referred to it in the body of the reasons and appended a copy to the reasons. Furthermore, the Tribunal member used the opening lines of each of subreg (3)(a) to (d) as headings for sections of her reasons.

50    The Tribunal member dealt with some of these matters rather briefly. Under the heading “the financial aspects of the relationship”, the Tribunal member recorded only:

[29]    The applicant told the Tribunal that she had worked at her current job for about 3 years. At the hearing the applicant and the sponsor gave contradictory evidence about the sponsor’s business before he went to jail.

[30]    The sponsor has been in jail since July 2012. Some evidence has been provided that the applicant sends money to the sponsor in prison. The Tribunal gives this evidence some weight but finds that it is outweighed by the concerns outlined below.

51    The concerns to which the Tribunal member referred in [30] are those contained in [35]-[38] of her reasons which have been set out earlier in these reasons.

52    Counsel for the appellant emphasised the brevity of these reasons having regard to the five matters listed in reg 1.15A(3)(a) to be considered in relation to the financial aspects of the relationship. He placed particular emphasis on subpara (a)(iii), namely, “the extent of any pooling of financial resources, especially in relation to major financial commitments”. Counsel noted that the Tribunal had made no findings concerning the husband’s statement that he and the appellant had opened a joint account at a time before the appellant had obtained employment, into which his earnings were paid. Nor had the Tribunal member referred to the evidence in the form of bank statements indicating that the appellant’s earnings were paid into the same account, including after the husband had been taken in to custody. The Tribunal had recorded that “some evidence” had been provided that the appellant sent money to her husband in prison. In fact, the Tribunal had evidence that, in the period between 27 November 2013 and 13 April 2015, the appellant had transferred money to her husband’s prison account on 27 separate occasions. This was significant evidence, he submitted, of a pooling or sharing of financial resources about which the Tribunal had not made findings before concluding that the significance of this as evidence was outweighed by the Tribunal member’s other concerns.

53    In relation to the requirements of subreg (3)(c) (whether the couple represented themselves to others as being married and the opinions of their friends and acquaintances about the nature of their relationship), counsel noted again that the Tribunal had not made any findings concerning the effect of the two statutory declarations made on 20 December 2010. In addition, the Tribunal had not referred to, let alone made findings about, the husband’s statement dated 30 March 2011 in which he described the social activities that the couple had engaged. These included visiting friends, attending a dance club in Maribyrnong, going to the beach, participating in barbeques and visiting his mother. Nor did the Tribunal refer to, let alone make findings about, a statement provided by the husband which is undated (but apparently made after he had been taken into custody) in which he said:

During time we lived together, we shared a lot of happiness. We shared time together after 5 days working. We normally to (sic) shopping, watch movie. Sometimes we attend special parties as wedding, birthday. I often took her to the beach. Because her family live in Nha Trang, we sometimes went away in Victoria to show some new places we have not been before.

54    In relation to the social aspects of the relationship (which is the subject matter of subreg (3)(c)), the Tribunal member gave three paragraphs of reasons. Two of these concerned the statutory declarations made on 24 December 2012. The third was as follows:

[32]    The Tribunal finds that the applicant and [her] sponsoring partner do not currently plan and undertake joint social activities as he is in jail. The applicant told the Tribunal that she has not socialised with the sponsor’s family in Melbourne since his incarceration in 2012.

55    It is very evident that there was a good deal of other material bearing upon the social aspects of the relationship between the appellant and her husband with which the Tribunal member did not engage, nor make findings. In addition to the matters already mentioned, one could include the activities of the appellant and her husband when she visited him on the occasions of his day release.

56    Earlier in these reasons, I set out [35]-[41] of the Tribunal member’s reasons. These appear under the heading “The nature of the persons’ commitment to each other”. Paragraphs [35]-[39] address aspects of these matters. However, there were several other matters in the evidence presented to the Tribunal about which the Tribunal member did not make findings. These included the husband’s statement that he and the appellant had lived together since her arrival in Melbourne on 30 May 2010, the claims each has made about their plans together for the future, including saving to purchase a house, the support which the appellant’s husband had given her at the time of the deaths of her father and sister, and the husband’s statement that “we [are] looking forward [to] a future that will bring us to live peacefully in this freedom country”.

57    The Tribunal was provided with copies of eight letters which the appellant’s husband had written to her from prison, together with English translations of those letters. The letters which were written between 29 September 2012 and 21 September 2013, contain expressions of love, yearning and regret. The Tribunal member noted that the appellant’s migration agent had provided “evidence of correspondence between the couple” but did not otherwise engage with the content of those letters, nor with the inferences which may be drawn from them. Relevantly, the Tribunal member did not make findings about them. Plainly, these were matters bearing upon subreg (3)(d)(iii), namely, the degree of companionship and emotional support that the persons draw from each other.

58    The Tribunal member also had evidence of periodic telephone contact between the appellant and her husband in prison. Apart from her finding that the couple had given inconsistent evidence about a number of issues, including “the nature of their telephone communication”, the Tribunal member did not refer to that evidence, let alone make findings concerning it.

59    Counsel for the Minister submitted that, despite these matters, it was evident that the Tribunal member had considered each of the “matters” required by subreg (3). In relation to the pooling of resources, counsel referred to the Tribunal’s statement that “some evidence has been provided that the applicant sends money to the sponsor in prison”. The member had thereby considered the matter of pooling of resources. That being so, the Tribunal’s failure to refer to the evidence of the joint bank account, should be regarded as no more than a failure to consider an item of evidence, and not a failure to consider a required matter. Counsel made a like submission with respect to other aspects of the subreg (3) matters.

60    At one level, these submissions have some force, as it is not necessary for the Tribunal to refer to every item of evidence bearing on a matter. The very fact that the Tribunal member chose to use the four topics mentioned in subreg (3) as the headings for sections of her reasons, tends to suggest the Tribunal has had regard, at least to some extent, to those matters.

61    The difficulty, however, lies with the level of abstraction with which the Tribunal has addressed each topic. When the Tribunal refers at a high level of generality to one of the requisite matters, it may be said that the Tribunal has “considered” that matter. However, reg 1.15A requires more than a generalised consideration, as the concluding words of reg 1.15A(2) indicate. They oblige the Minister (and the Tribunal when standing in his shoes) to consider “all of the circumstances” of the relationship “including” those set out in subreg (3). The requirement that the Tribunal consider all of the circumstances is inconsistent with a requirement that the subreg (3) matters be considered merely as abstract topics. Further, as the Full Court noted in He, the obligation to “consider” requires the decision-maker to bring an active intellectual process to each matter: Tickner v Chapman (1995) 57 FCR 451 at 462, 464 and 495-6; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352 at [36]-[45]; Bondelmonte v Bondelmonte [2017] HCA 8, (2017) 259 CLR 662 at [43].

62    In the present case, there is so much material to which the Tribunal member did not refer, or about which the Tribunal member did not make findings, that it cannot be concluded that the Tribunal brought “an active intellectual process” to its consideration of the reg 1.15A(3) matters, in the manner in which the Full Court decision in He indicates is required.

63    Accordingly, I consider that the appellant has made good Ground 5.

Summary

64    For these reasons, I uphold both grounds which the appellant pursued on the appeal. The parties agreed that, in this event, costs orders should be made in the appellant’s favour.

65    I make the following orders:

(a)    The appeal is allowed;

(b)    The orders made by the FCC on 25 January 2018 are set aside;

(c)    There be issued a writ of certiorari quashing the decision of the Tribunal made on 30 June 2015;

(d)    There be issued a writ of mandamus directed to the Administrative Appeals Tribunal requiring it to hear and determine in accordance with law the appellant’s application for review lodged with the Tribunal on 5 June 2014; and

(e)    The first respondent pay the appellant’s costs of and incidental to the appeal to this Court and of and incidental to the appellant’s application for judicial review in the FCC.

Associate:

Dated:    6 September 2018