FEDERAL COURT OF AUSTRALIA

Fabian v Minister for Home Affairs [2019] FCA 888

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Introduction

1    These proceedings concern an appeal from the whole of the judgment and all of the orders of the Federal Circuit Court of Australia (“FCCA”) given on 2 March 2018: Fabian v Minister for Immigration & Anor [2018] FCCA 434. On 2 March 2018, Judge Vasta (the “primary judge”) made orders dismissing the appellant’s application to that Court for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”), together with costs. By his notice of appeal filed on 23 March 2018, the appellant seeks orders setting aside the orders of the FCCA and orders for the issue of the constitutional writs in relation to the decision of the Tribunal.

2    In support of those orders, the appellant relies upon the following grounds of appeal:

1.    The learned Federal Circuit Court judge erred by failing to properly, interpret and/or apply the principles outlined in He v Minister for Immigration and Border Protection (2017) FCAFC 206 and/or Re Minister of Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 144.

2.    The learned Federal Circuit Court judge erred by finding that the tribunal had conducted a proper review under Part V and/or ss 348 and 349 of the Migration Act 1958.

3.    The learned Federal Circuit Court judge erred in failing to find that the tribunal did not properly set out its pathway of reasoning.

4.    The learned Federal Circuit Court judge erred in failing to find that the tribunal reasons had the type of deficiency referred to in Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149.

5.    The learned Federal Circuit Court judge erred in failing to find the tribunal did not properly interpret and apply Regulation 1. 15A of the Migration Regulations Act 1994 and Part 801 of Schedule 2 to the Migration Regulations 1994.

3    In this appeal, the appellant was represented by Mr L Boccabella of counsel, instructed by NB Lawyers. The Minister was represented by Ms E Hoiberg of counsel, instructed by Clayton Utz. The parties have the same representation before the primary judge.

Background

4    The appellant was born in Slovakia on 12 October 1973 (AB409; 358).

5    On 13 March 2009, the appellant arrived in Australia on a student visa and was granted subsequent student visas, which expired on 22 June 2013 (AB455).

6    The appellant met his sponsor on 1 July 2012 at the Story Bridge Hotel in Brisbane and they married on 17 June 2013 (AB455; AB353).

7    On 21 June 2013, the appellant lodged an application for a Partner (Residence) (Class BS) visa (AB409). Relevantly, the sponsor provided the following answers (AB260):

Do the applicant and the sponsor have a mutual commitment to a shared life as husband and wife, or as de facto partners to the exclusion of all others?

Yes

Give details of the financial aspects of the relationship.

The bills are always paid, if I need money I access our account from the NAB.

Give details of the nature of the household.

I do everything as I have OCD and will not allow anyone else to clean.

Give details of the social aspects of the relationship.

As I have heart, liver and thyroid disease, I prefer not to go anywhere much. [I like] being at home. I study full time. Also I don’t like people.

Give details of the nature of the commitment the applicant and the sponsor have to each other.

My husband works and stays at the Gold Coast during the week as Caboolture is 2 hours drive one way to come home. When Marek comes home we do the normal stuff people do when they are married. Garden, shop, etc. My daughter lives in Caboolture that is why I choose to move back here.

Give details of the development of the relationship from the date the applicant was granted the temporary visa.

The start of our relationship was like any other, you get to know someone and if you are compatible it should all fall into place. Nothing really remarkable about it. [That’s] just how relationship develop.

8    The appellant then notified the Department of Immigration and Border Protection (as it then was) that he had provided an incorrect answer (AB270):

9    The sponsor declared a statutory declaration on 18 February 2016 (AB271-273) which is reproduced below:

Note 1    A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years – see section 11 of the Statutory Declarations Act 1959.

Note 2    Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 – see section 5A of the Statutory Declarations Act 1959.

*“address” means the place at which, or through which, a person may be contacted, and includes a postal address, but does not include the person’s email address.

10    Also with the application, two accompanying statutory declarations were provided. The first was by Pavol Jakubec on 13 January 2016 (AB266-267) and the second was by Michelle Oust on 14 January 2016 (AB268-269).

11    Mr Jakubec declared that the appellant had been living with the sponsor and shared a household since February 2013. Mr Jakubec further declared that “in the last two and a half years Marek and his wife became closer and even bought a new dog. … Marek is looking content and enjoying his family”.

12    Ms Oust declared that the appellant and his sponsor “are a genuine couple”. She stated that “they are openly fond of each other and caring, and loving. I believe they are committed to each other.”

13    In August 2014, Jan Papp provided a statutory declaration (AB288-289) in which she stated that “I believe the relationship of the applicant Mr Fabian and his partner Mrs. Fabian is genuine and continuing to be genuine as they both live together in a unit, share everything together, attend [birthday] parties and other celebrations together, talk about one another [positively] and are in a loving relationship”.

14    On 4 September 2014, the appellant was granted a Partner (Temporary) (class UK) Partner (subclass 820) visa (AB276).

15    On 22 February 2016 (received 1 March 2016), the appellant’s sponsor advised the Department that she wished to withdraw her sponsorship as the relationship between the sponsor and the appellant had broken down (AB251). The sponsor said: “our marriage has been up and down for years, and we have been separated on numerous occasions”.

16    On 24 March 2016, Jasmin Conway, the sponsor’s daughter, declared a statutory declaration to the effect that she believed her mother’s separation with the appellant was “due to my mother’s illness as she is under a lot of stress” (AB237). Ms Conway went on to declare that “Charmaine and Marek have been trying to work things out and I don’t believe either of them are ready to call it quits yet. Marek lives on the Gold Coast during the week and visits mum on an occasional basis. He is a good man and he has done right by respecting my mum’s wishes. I do believe that once my mum’s health has been sorted out and she can carry on with her life normally, Marek and her will work on getting [their] marriage back on track …”.

Decision of the delegate

17    On 20 May 2016, the delegate informed the appellant that his application for a Partner (Residence) (Class BS) (Subclass 801) visa (AB205-207), was refused.

18    In reaching that decision, the delegate observed that a visa cannot be granted unless the applicant meets the relevant legal requirements under cl 801.221 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) and the delegate was not satisfied that the requirements were met. Subclasses 801.22 and 801.221 are in these terms:

801.22    Criteria to be satisfied at time of decision

801.221

(1)    The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

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

  (a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i)    the sponsoring partner; or

(ii)    the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

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

(d)    subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

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

(a)    the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and

(b)    the applicant is the spouse or de facto partner of the sponsoring partner; and

(c)    subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

(3)    An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).

(4)    An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).

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

   (a)    is the holder of a Subclass 820 visa; and

(b)    would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and

(c)    satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

   (d)    has developed close business, cultural or personal ties in Australia.

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

   (a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

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

(i)    either or both of the following:

(A)    the applicant;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

(ii)    the applicant:

(A)    has custody or joint custody of, or access to; or

(B)    has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring partner:

(C)    has been granted joint custody or access by a court; or

(D)    has a residence order or contact order made under the Family Law Act 1975; or

(E)    has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Note:    For special provisions relating to family violence, see Division 1.5.

(6A)    Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

(7)    Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:

   (a)    refusing to grant a Subclass 801 visa; or

(d)    approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).

(8)    The applicant meets the requirements of this subclause:

(a)    if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

  (b)    if the Tribunal:

(i)    has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

(ii)    has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.

19    Subclause 801.221(1) of the Regulations requires that an applicant must, at the time of decision, satisfy subclauses (2), (2A), (3), (4), (6) or (8).

20    The delegate considered that subclause (2) requires that an applicant is, at the time of the decision, the spouse (as defined in s 5F of the Migration Act 1958 (the “Act”)) or the de facto partner (as defined under s 5CB of the Act).

21    Section 5F of the Act provides:

Spouse

5F

(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 a 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 provisions 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.

22    The Regulations did so provide in Reg 1.15A:

Migration Regulations 1994 – Reg 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 paragraph 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).

[emphasis added]

23    The delegate considered two letters from the appellant’s step-daughters confirming the appellant’s separation from the sponsor; the circumstance that the appellant lives on the Gold Coast; and the circumstance that the appellant visits the sponsor “occasionally”. It seems that on the basis of the step-daughter’s letters, the delegate decided that the appellant did not satisfy subclause (2) of cl 801.221.

24    The delegate decided that the appellant did not meet subclause (2A) of cl 801.221 as there is “no evidence” that the appellant is a holder of a subclass 820 visa.

25    The delegate decided that the appellant did not satisfy subclauses (3), (4), (5) and (6) of cl 801.221 because, at the time of the delegate’s decision’, the appellant had not made any claims engaging the subject matter of those subclauses.

26    The delegate found that subclause (8) did not apply as the applicant has not been the subject of a favourable review decision.

27    On 24 May 2016, the sponsor lodged a “Notification of Changes in Circumstances” (Form 1022) with the Department (AB222-224). In that Form, the sponsor said that “we are no longer separated, I wish to reinstate my sponsorship”. The sponsor went on to say that “Marek and myself have resumed our marriage on Sunday 29th May 2016 after numerous discussions”.

28    The Department advised the sponsor that because the delegate had already reached a decision, the appellant should seek review in the Tribunal (AB225).

Application to the Tribunal

29    On 4 June 2016, the appellant lodged an application for review to the Migration and Refugee Division of the Tribunal (AB200).

30    At the hearing on 30 January 2017, the appellant appeared with the assistance of an interpreter and gave evidence. The sponsor appeared by telephone (Transcript from AB416-449).

31    On 2 February 2017, the Tribunal (constituted by Member Grau) published its Statement of Decision and Reasons (AB10-19). The decision notes at [7] that the Tribunal was provided with photos and bank statements after the hearing and these were considered.

32    The Member stated the “issue in the present case” as “whether the applicant is the spouse (as defined in s 5F) of the sponsor”: [9].

33    The Tribunal’s reasons are set out under sub-headings in a way which corresponds, in turn, with each of the matters specified in Reg 1.15A(3) of the Regulations.

34    The first heading is “financial aspects”: see Reg 1.15A(3)(a).

35    In that section, the Member said this:

Financial aspects

24.    At hearing the tribunal discussed the limited documentary evidence of the financial aspects of the relationship. At hearing, the tribunal noted the unnamed bank statement for period 24 May 2014 to 1 September 2014 showed income and includes some payments for rent, internet and groceries. It was not evident whose account it was or that [it] was a joint account. The applicant claimed to pay the rent and all the bills and the sponsor’s son paid rent every fourth week. While the applicant claimed he and the sponsor had a joint account and each had their own personal account, the sponsor said they did not have a joint account but each had their own account to which she had access. In the s359AA response the applicant said they were linked accounts and what was his were hers and vice versa. The sponsor received some disability pension which was paid into her account. The sponsor’s statement confirmed the applicant paid the bills from his account and she had access to it whenever she needed cash. After hearing the applicant provided his bank account statements for 2015 and 2016 which showed his income included payments for groceries, food, petrol and many internet banking transactions. However, the sponsor’s bank account statements were not provided. In any event, the tribunal accepts there is some evidence of sharing/pooling financial resources. However, the tribunal considers the financial aspects are limited.

36    The bank statements are at AB44-124.

37    The Member then went on to refer to household aspects: see Reg 1.15A(3)(b)

38    In that section, the Tribunal referred to a tenancy agreement (AB287-289) for a lease starting on 14 March 2014 to 12 March 2015 at a Beenleigh property. The Member also referred to the sponsor’s evidence that she and the appellant separated on a number of occasions and lived separately, including separately and apart on a permanent basis: [25].

39    The Member also referred to the sponsor’s statement in January 2017 that she lived with her son and the appellant: [25].

40    The Tribunal found at [26] that the appellant’s evidence about the sharing of a household was “vague, hesitant and not consistent with the sponsor’s evidence or statements”. In support of this conclusion, the Tribunal referred to the following factors:

(a)    Answers to questions about the period of time the appellant lived apart from his sponsor (“his living arrangements and separation”), which the Tribunal considered to be vague and hesitant: [27]

(b)    The tribunal did not accept that the appellant returned to the sponsor on the weekend when the sponsor lived in Caboolture (to be closer to her daughter) and the appellant lived on the Gold Coast: [28]

(c)    The tribunal did not accept the appellant’s claims about the appellant’s living arrangements with the sponsor, particularly the claim that the appellant and the sponsor had only one period of separation: [29]-[30]

41    The Tribunal accepted that the appellant shared a household for short periods from “time to time” but did not accept that the couple shared a household on a permanent or continuing basis: [32]. In particular, the Tribunal noted that there was “limited documentary evidence” of the couple sharing a household during their relationship: [31].

42    The Tribunal placed little weight on three statutory declarations provided by friends of the appellant in 2014 (three years before the date of the Tribunal’s decision) as they only dealt with “the beginnings of the relationship” between the appellant and the sponsor: [33]. The Tribunal also placed little weight on the declaration of Mr Jakubec (dated January 2017) because it did not mention that the couple had been separated and generally lacked detail: [33].

43    The Tribunal placed “some weight” on photographs provided by the appellant of Christmas and New Years’ Eve functions which the appellant and sponsor attended together. The Tribunal noted that many of the photos did not feature both the appellant and sponsor and considered that they do not “evidence frequent or over time socialising consistent with a relationship of a number of years”: [35]. The Tribunal also noted that the sponsor did not attend a New Year’s Eve party and that the Christmas photos seemed to be in 2016: [35].

44    The Tribunal noted that the appellant attended a New Year’s Eve party of the sponsor’s daughter with the sponsor’s son and that the sponsor was not well enough to attend. The Tribunal thought it “odd” that the sponsor and the appellant “would not spend New Year’s Eve together” and “odd” that the sponsor was not well enough to attend or would not want to attend yet the sponsor was well enough to pick up the appellant and the sponsor’s son at 1.00am from the party: [36]. Perhaps the sponsor was well enough to drive but not well enough to endure a party until 1.00am. Perhaps the sponsor was suffering from one of her many medical conditions which the Tribunal accepted she suffered from. The evidence of the sponsor on this topic is set out at [126] of these reasons. There may be nothing odd about these events and they say nothing ultimately probative or persuasive about, nor support, any inference about the factors at Reg 1.15A(3). I will return to the evidence of the sponsor about the New Year’s Eve party later in these reasons.

45    The Tribunal considered that a discrepancy between the appellant’s account and the sponsor’s account of the appellant speaking to the appellant’s mother or siblings over Skype “was an example of inconsistent evidence which indicates the couple were not telling the truth about social and commitment aspects of the relationship”: [37].

46    The Tribunal found that there is “limited evidence” of “social aspects” of the relationship: [38].

47    The Tribunal then turned to the nature of the commitment of the appellant and the sponsor to each other.

48    The Tribunal accepted that the couple met in 2012 and married a year later in June 2013. The Tribunal found that the couple have separated a number of times and the sponsor withdrew her sponsorship twice: [39]

49    The Tribunal did not accept that the sponsor and the appellant “are committed to each other or that they share a mutual commitment to a shared life or that their relationship is genuine and continuing”: [41].

50    In support of this finding, the Tribunal observed that the sponsor draws emotional support from her daughter: [42]. The Tribunal noted that the sponsor had moved to live with her daughter even though the appellant continued to live and work at the Gold Coast. The Tribunal noted the sponsor’s evidence that she “relied on her daughter first for emotional support” [emphasis added]: [42]. At [43], the Tribunal observed that it had considered the statement of the sponsor’s daughter of March 2016 that she thought the appellant a “good husband, stepdad who visits” [emphasis added]. The Tribunal noted the sponsor’s daughter’s evidence that the sponsor and the appellant had separated due to a number of factors although she thought that the sponsor and the appellant “could get back together”. These circumstances were said by the Tribunal to be “further evidence that the sponsor does not rely on the [appellant] for emotional support”: [43].

51    The Tribunal also noted that the appellant knew little about the sponsor’s “many other ailments” and medication aside from her “heart failure and bloated stomach and liver problems”: [44]. The Tribunal also referred to the fact that the appellant did not know that the sponsor was admitted to hospital on the day of the hearing. The Tribunal found it “odd” that the appellant “would not take more interest or ensure he understood the sponsor’s health conditions if he was in a committed long term relationship”: [45]. The Tribunal considered that the appellant’s limited knowledge of and failure to take steps to find out about the sponsor’s “medical condition” suggested “a lack of interest and commitment”: [45].

52    The Tribunal notes that the appellant did not attend the sponsor’s doctors’ appointment and the appellant gave evidence that the sponsor’s daughter went with her as the appellant had to work: [46]. The Tribunal also notes that “initially, the sponsor said that she preferred to go alone”. The Tribunal concluded that the appellant’s evidence about the daughter’s presence at these appointments on the one hand and the sponsor’s evidence of preferring to go alone, on the other hand, was “inconsistent”. The Tribunal did not accept that the appellant “could not attend or take the sponsor to some appointments as the [appellant] is a self-employed painting contractor” who “could arrange work around at least some of the sponsor’s doctor[s’] appointments”: [46]. As to the appellant’s evidence that he would “not get paid if he did not work”, the Tribunal considered that that evidence indicated “a lack of commitment and willingness to provide emotional support”: [46].

53    The Tribunal also considered the circumstance that the sponsor relies upon her daughter and adult family for emotional support first rather than the appellant “suggests a lack [of] support and reliance between the [appellant] and sponsor as husband and wife”: [47]. The Tribunal then added at [47] that this consideration “also indicates that the applicant and the sponsor’s relationship lack mutual commitment, which is inconsistent with a spousal relationship”.

54    The Tribunal expressed “concern” that the appellant and the sponsor “did not have much in common” and “their common interests and future plans did not align”: [48]. An example of this was said to be that the sponsor “was desperate” to buy property and finish her PhD whereas the appellant’s priority was to save money to travel to Europe to show the sponsor and the family where he formerly lived. The Tribunal notes that property was not a priority for the appellant as, without permanent residence, he could not obtain a loan: [48].

55    The Tribunal asked the appellant and sponsor, “what they shared in common.” The sponsor said that the appellant made her laugh; that she (they) shop for antiques; that they go to the beach together and to her daughter’s place. The Tribunal observed that “the [appellant] hesitated” in response to the question and answered “everything”. The appellant later said that “they liked animals, going to Bunnings, the movies and open markets”: [49]. The Tribunal noted the appellant’s evidence that the sponsor spent all day and night on the internet and that he did not like the sponsor buying things on the internet. The Tribunal notes that the appellant also said that they go to the movies. The Tribunal considered that the “couple’s evidence was not forthcoming or spontaneous about their common interests and activities”: [49]. Further, apart from attending the movies together, the Tribunal considered that their evidence was “not consistent with each other”: [49].

56    The Tribunal went on to find that the appellant had “little knowledge” of the sponsor’s previous relationships and why they had ended. The appellant knew that the sponsor had “had two marital relationships and one child from each”, and knew that the sponsor “kept in contact with Dave”, although the appellant said he did not mind about that. The Tribunal noted that the appellant did not know “why the relationships ended”. The Tribunal observed that, whilst accepting that it “may not be important information for long since past relationships, the sponsor was only recently divorced when the [appellant] and the sponsor married”. The Tribunal considered that the circumstance that the appellant “did not know or concern himself” with such a recent past relationship indicated “a lack of understanding and communication between the couple that is not consistent with a genuine committed relationship”: [50].

57    The Tribunal noted the assertions of both parties that the language barrier between them “makes things difficult”: [52].

58    The Tribunal noted the sponsor’s statement that she “could not predict” what would happen in the future but said the appellant was popular with her family and that he provides companionship and makes her laugh: [53].

59    Having regard to all of these observations on the various aspects of the evidence each of which is drawn to a particular conclusion concerning the contentions in the evidence, the Tribunal reached the conclusionary finding that “the commitment aspects of the relationship are not consistent with a spousal relationship”: [54].

60    In summarising its reasons, the Tribunal observed that it “is mindful that it must assess the commitment and other aspects of the relationship and that relationship[s] can be tumultuous and on/off again”: [55]. The Tribunal accepted that it is not assessing whether the relationship is “a good or bad relationship”: [55].

61    However, the Tribunal referred to the circumstance that the sponsor has withdrawn the sponsorship twice and confirmed that the appellant and sponsor had separated “numerous times for lengthy periods”. The Tribunal considered it “telling” that the sponsor and the appellant reunited “just after the visa was refused in May 2016”: [56].

62    The Tribunal was also concerned that there is also a lack of documentation supporting the relationship: [56]. The Tribunal also observed that it was “very clear” from the sponsor’s statements that “she was not committed to the appellant on numerous occasions”: [56].

63    The Tribunal observed that the couple gave “inconsistent evidence” “about their future plans, common interests, goals and contact with the [appellant’s] family”: [57]. The Tribunal considered that the appellant and the sponsor had not lived together for lengthy periods and were, according to the sponsor’s statements in 2016, “living separately and apart on a permanent basis”: [57].

64    The Tribunal observed that while the appellant provided financial support to the sponsor, the Tribunal considered that the couple “do not emotionally support each other”: [57]. The Tribunal again noted that the appellant had “little knowledge of and interest in the sponsor’s many medical conditions” and found that the appellant was “not telling the truth about their periods of separation and living arrangements”: [57].

65    The Tribunal observed that having considered the evidence overall, it did not accept that “the relationship is genuine and ongoing”: [58]. The Tribunal did not accept that the appellant and the sponsor share a mutual commitment to a shared life together or that they live apart but not on a permanent basis: [58].

66    Having regard to these findings, the Tribunal was not satisfied, at the time of its decision, that the appellant and the sponsor were in a spousal relationship. Accordingly, the Tribunal affirmed the decision not to grant the appellant a Partner (Residence) (Class BS) visa.

Federal Circuit Court decision

67    By his application for judicial review, the appellant relied on the following grounds of jurisdictional error (substituting references to the Tribunal):

1.    The Tribunal failed to properly interpret and apply Regulation 1.15A of the Migration Regulations 1994 and Part 801 of Schedule 2 to the Migration Regulations 1994.

2.    The Tribunal failed to properly consider all the relevant considerations.

3.    The Tribunal’s decision was an improper decision of power.

4.    The Tribunal took irrelevant consideration into account.

5.    The Tribunal’s decision was unreasonable.

6.    The Tribunal failed to properly conduct a review for the purpose of implementing Part V and/or ss 348 and 349 of the Migration Act 1958.

7.    The Tribunal’s decision involved an error of law.

8.    The decision was otherwise unlawful.

68    The primary judge dismissed the application.

69    In the reasons, the primary judge (“PJ”) recited the history of the relationship between the appellant and the sponsor at [4]-[13].

70    The primary judge then observed that the “Tribunal went through the four major circumstances that they were required to consider”. The primary judge observed that with respect to the financial aspects of the relationship, the Tribunal had said that there was limited documentary evidence of the financial aspects of the relationship. The primary judge referred to the appellant’s bank account statements for 2015 and 2016 which showed his income and included payments for groceries, food and petrol and other transactions. The primary judge noted that there was some inconsistency as to whether the appellant and sponsor had a joint account. The sponsor did not provide her bank account statements: PJ at [15] and [16].

71    The primary judge noted that the Tribunal accepted that there was some evidence of sharing/pooling of financial resources but these aspects were limited.

72    The primary judge then considered the Tribunal’s treatment of the nature of the household. The primary judge referred to the lease agreement for a property at Beenleigh. The primary judge noted the Tribunal’s finding of “significant inconsistencies” between the evidence of the appellant to the effect that he and the sponsor had always been together except when he was living at the Gold Coast for work and returning home every weekend, on the one hand, and the evidence of the sponsor who said that they were separated and that the appellant was not coming home every weekend, on the other hand. The primary judge noted that the Tribunal considered that the appellant was not telling the truth and that there were no joint bills or tenancy agreements which show that the couple shared a household: PJ at [19]. The primary judge noted that the Tribunal concluded that the appellant and sponsor have shared a household for short periods but did not accept that the appellant and sponsor had shared a household on a permanent or continuing basis: PJ at [19].

73    The primary judge observes that the Tribunal concluded that there was “a paucity of evidence” with respect to the social aspects of the relationship (PJ at [20]) and that the evidence of the social aspects of the relationship was limited: PJ at [24]. The primary judge noted that whilst there were letters from three friends of the appellant, the letters were written in 2014 and only one was written in January 2017 which did not refer to the couple’s separation. The primary judge referred to the Tribunal’s references to the sponsor not socialising due to her illness but nevertheless picking up the appellant from a New Year’s Eve party, and to inconsistent evidence about whether the appellant’s mother has a Facebook account.

74    The primary judge referred to the Tribunal’s treatment of the nature of the commitment and referred to the Tribunal’s comments about the appellant and the sponsor separating and the sponsor’s statement that she relied on her daughter for emotional support. The primary judge also referred to the Tribunal’s comment that the appellant knew little about his wife’s health complaints: PJ at [27].

75    The primary judge noted that the Tribunal found that the appellant and the sponsor’s relationship lacked mutual commitment and was inconsistent with a spousal relationship: PJ at [30].

76    The primary judge referred to the Tribunal’s reference that the appellant and sponsor did not share future plans or a commitment consistent with a spousal relationship.

77    The primary judge then noted the Tribunal’s conclusion that it was not satisfied that the parties were in a spousal relationship at the time it was called upon to make its decision and that the Tribunal found that it did not accept that the relationship was genuine and ongoing: PJ at [34] and [35]. The primary judge noted that the Tribunal did not accept that the parties had a shared commitment to each other to the exclusion of all others and did not accept that the parties lived together or lived apart but not on a permanent basis: PJ at [35].

78    The primary judge then recited the grounds of the application and noted that the only ground “really argued” was ground 6 by which the appellant claimed that the Tribunal had “failed to properly conduct a review” and had thus failed to discharge its statutory function.

79    The primary judge noted the appellant’s claim that the Tribunal “simply recited the evidence before it” and gave “lip service” to the requirements of the legislation. The appellant claimed that the Tribunal “substituted concerns, assertions and considerations for actually finding facts” [emphasis added]: PJ at [38].

80    The primary judge at [39] observed that the “argument for the applicant can be neatly summarised in the submission that the Tribunal ‘failed to make specific findings on material questions of fact as it was required to do’”.

81    The primary judge had regard to the text of s 5F of the Act and Reg 1.15A of the Regulations.

82    Before the primary judge, the appellant claimed that the Tribunal had failed to consider the “financial aspects of the relationship” and that all that the Tribunal did was restate the evidence and assert that “however the Tribunal considers the financial aspects are limited” and consequently did not make a finding about that aspect of that “matter”.

83    The primary judge noted the appellant’s claims that the Tribunal did not set out any findings in relation to the “nature of the household” and did not refer to the evidence about “reconciliation” or the oral evidence given at the hearing. Nor did the Tribunal, it was said, refer to important matters of fact concerning the health problems or the current living arrangements of the sponsor.

84    The primary judge referred to the appellant’s claims that the Tribunal failed to consider the “social aspects of the relationship” and the appellant’s submissions that there were no proper findings on material questions of fact and no “proper pathway of reasoning” in relation to this consideration.

85    The primary judge also noted the appellant’s claim that the Tribunal failed to consider the “nature of the applicant and sponsor’s commitment to each other”. The appellant also claimed that the Tribunal misstated the evidence in relation to this consideration and has not made proper findings on material questions of fact sufficient to expose a pathway of reasoning. The appellant submitted that there were matters of evidence that were not commented upon by the Tribunal which were significant and should have been addressed.

86    The primary judge noted the appellant’s submission that because of these failings, the Tribunal did not conduct a proper review and therefore the Tribunal engaged in jurisdictional error.

87    The primary judge referred to the appellant’s reliance on He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (“He v MIBP”). The primary judge referred to [76] of the judgment of the Full Court where their Honours (Siopis, Kerr and Rangiah JJ) held that to “consider” the matters in Reg 1.15A(3) of the Regulations, means that the Tribunal is required to “make findings upon each of the prescribed matters numbered with Roman numerals” within Reg 1.15A(3)(a), (b), (c) and (d).

88    The primary judge referred to their Honours’ reasoning that the regulation poses these matters as “questions” in order to ensure that the Tribunal takes account of the particular circumstances of the marriage in giving proper, genuine and realistic consideration to the prescribed matters: He v MIBP at [76].

89    The primary judge observed that the Tribunal was obliged to make findings on all 15 considerations contained within Reg 1.15A(3).

90    The primary judge then considered the topic of “what the Tribunal did in this case”.

91    As to the financial aspects of the relationship, the primary judge found that “it can be, at the very least, inferred that the Tribunal” made findings on all matters contained in Reg 1.15A(3)(a)(i)-(v) because:

(a)    The Tribunal accepted that the appellant and the sponsor paid rent and had, in 2014, signed a lease to live in Beenleigh for 12 months: PJ at [56].

(b)    The Tribunal accepted that the appellant made payments for groceries, food, petrol and many internet banking transactions (per the bank account statements): PJ at [56].

(c)    The Tribunal accepted that there was some evidence of sharing/pooling financial resources; the Tribunal accepted that the sponsor and appellant were married; and the appellant was saving money for a trip overseas whilst the sponsor wished to purchase property: PJ at [57].

92    The primary judge then turned to Reg 1.15A(3)(b)(i)-(iii) (the nature of the household) and observed that the Tribunal accepted that the sponsor had two adult children from previous relationships and that the appellant and sponsor had separated on occasions. The primary judge observed that the Tribunal had noted the sponsor’s evidence about current living arrangements but also noted a lack of documentary material in support of the contentions. The primary judge concluded that for these reasons and the reasons from [25]-[32] of the Tribunal’s reasons, it can be inferred that the Tribunal made findings on the matter (see [37]-[46] of these reasons).

93    The primary judge then considered Reg 1.15A(3)(c)(i)-(iii) (the social aspects of the relationship) and noted the Tribunal’s acceptance that there were four people who expressed their opinion about the relationship between the appellant and the sponsor. The primary judge notes that the Tribunal, at [33], decided not to attribute any significant weight to those opinions for the reasons it identified.

94    The primary judge referred to the Tribunal’s consideration of what was said about the social life of the sponsor and the appellant in the material and oral evidence before the Tribunal. The Tribunal accepted that the sponsor does not like to socialise due to ill health but that the couple do socialise with the sponsor’s children. The primary judge again referred to the Tribunal’s treatment of the New Year’s Eve Party.

95    The primary judge concluded, on the basis of these “findings”, that it can be inferred that the Tribunal made findings on the matters in Reg 1.15A(3)(c)(i)-(iii): PJ at [65].

96    The primary judge noted at [66] that the Tribunal must consider the social aspects of the relationship when looking at the genuineness of the spousal relationship. In so doing, the primary judge noted that the Tribunal had considered that “there was limited evidence of this kind that would assist the Tribunal in concluding that the relationship was genuine”.

97    At [67], the primary judge noted that the Tribunal accepted that the sponsor and the appellant met in 2012 and were married days after the sponsor was divorced for the second time. The primary judge noted that the Tribunal made a number of references to the living arrangements, and separations, of the appellant and the sponsor, and the differing life goals of the appellant and the sponsor. Based on those matters, the primary judge concluded that the Tribunal had addressed the matters arising under Reg 1.15A(3)(d)(i), (ii) and (iv).

98    As to Reg 1.15A(3)(d)(iii) (the degree of companionship and emotional support that they draw from each other), the primary judge concluded that the Tribunal had made a “clear and unequivocal finding” that the degree of companionship and emotional support that the sponsor draws from the appellant was inconsistent with a spousal relationship. The primary judge notes that the Tribunal had found that the daughter of the sponsor “was the main emotional support” for the sponsor: PJ at [69].

99    At [71], the primary judge notes that the Tribunal was required to make findings of fact about each matter recited in Reg 1.15A(3) and any other relevant circumstances. At [72], the primary judge concluded that the Tribunal “did what it was obliged to do” and it did “properly conduct a review”. The primary judge also observed at [72] that “[w]hilst there may be criticism that [the Tribunal] did not mention every fact that the [appellant] has submitted was significant, there was no such obligation on the Tribunal to do so”. The primary judge also observed at [72] that “those facts referred to by the [appellant] are just facts” and they do not amount to “circumstances” as that term is understood in Reg 1.15A(2): PJ at [72].

Appeal to this Court

100    The grounds of appeal are set out at [2] of these reasons.

Ground 1

101    The appellant frames the issue raised by this ground as, “can a tribunal find no spousal relationship exists on the basis of concerns, assertions and discussion without properly making specific findings on material questions of fact and without anchoring all findings to the date of decision?” [emphasis added].

102    The appellant places emphasis on a statement of the Full Court of this Court in Re Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Unreported, Federal Court of Australia, Northrop, Wilcox and French JJ, 8 May 1990, at p 9) (“Dhillon”) in these terms:

It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did. Only if this is done it is possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding. In making the above observations we bear in mind that there may be cases, for example risk assessment in the case of a suspected terrorist, where the relevant finding is that a risk exists. If that fact be found it may be proper to be influenced by it. But, of course, motions of risk assessment have nothing to do with this case.

[emphasis in submissions of the appellant]

103    The appellant contends that the Tribunal’s role is to “anchor” all the evidence in the review, to the date of 2 February 2017 (the date of the Tribunal’s decision) and, in accordance with the Full Court’s decision in He v MIBP at [76], the Tribunal is “required … to consider each of the matters in … Reg 1.15A(3) and make findings on those matters” [emphasis added].

104    With respect to the “financial aspects” of the appellant’s relationship, the appellant submitted that the Tribunal made “one” reference to those matters (that is, at [24]). The appellant contends that this “one” reference does not amount to a “finding” and is enough, by itself, for the appeal to succeed. The appellant focuses upon the final two sentences of [24] of the Tribunal’s decision as the particular reference, which is in these terms: “In any event, the tribunal accepts there is some evidence of sharing/pooling financial resources. However, the tribunal considers the financial aspects are limited”. I will return to that matter later in these reasons.

105    With respect to the “nature of the household”, the appellant submits that the Tribunal’s conclusion at [32] of its reasons does not direct itself to the correct statutory enquiry. Paragraph [32] of the Tribunal’s decision is in these terms: “The tribunal accepts the couple share[d] a household for short periods from time to time, but it does not accept the couple have shared a household on a permanent or continuing basis”. The appellant says that the correct test is to be found in ss 5F(1) and (2) of the Act which provide that a person is the spouse of another if, under subsection (2), the two persons are in a married relationship and s 5F(2) provides that persons are in a married relationship if (assuming integers (a), (b) and (c) are satisfied), they “live together” or they “do not live separately and apart on a permanent basis”: s 5F(2)(d). The appellant says that the Tribunal did not make findings about whether the sponsor and the appellant “lived together” or whether they do or do not “live separately and apart on a permanent basis” (but especially whether the negative proposition is the position). The appellant also says that the Tribunal did not make an assessment of the living arrangements of the appellant and the sponsor as at the time of the decision, 2 February 2017. The appellant contends that this is an appealable error and the appeal should succeed on this point alone.

106    The appellant submits that, with respect to “social aspects of the relationship”, the Tribunal did not making a finding at [38] of its reasons as it merely “discussed” matters from [33]-[37] and did not engage with evidence given by the sponsor and the appellant at the hearing.

107    As to the “nature of the person’s commitment to each other”, the appellant submits that the Tribunal merely recited evidence and did not make a finding on the necessary matters in Reg 1.15A(3)(d)(iii). The appellant, as a matter of principle, places emphasis on the observations of the Full Court in BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 (“BZD17”), in which the Full Court said this at [36]:

Similarly, in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]-[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration and Citizenship, the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J). Similarly, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also e.g. SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34]-[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see e.g. DAO16 at [45] (the Court).

[bold emphasis added]

108    The appellant submits that the primary judge, by finding at [68] that the Tribunal had made inferential findings on the nature of the person’s commitment to each other which satisfied Reg 1.15A(3)(d)(i), (ii) and (iv), fell into error.

109    The respondent contends that the primary judge correctly identified the Tribunal’s task with respect to Reg 1.15A(3) in the context of He v MIBP. In particular, the respondent asserts these propositions:

(a)    The appellant takes an unduly narrow approach to what constitutes a “finding”. In the respondent’s submission, it is not necessary for the Tribunal’s reasons to be structured in a manner that “formulaically” addresses each of the relevant matters in turn. Rather, the “impressionistic and evaluative” nature of the Tribunal’s task must be taken into account when “drawing implications from its reasons” and the reasons must not be construed minutely and finely with an eye to the perception of error.

(b)    Importantly, the Tribunal is required to make findings about the “matters” set out in Reg 1.15A(3). It is not required to “refer to or make findings upon every piece of evidence”. In that regard, the respondent places emphasis upon [83] of the judgment in He v MIBP, where (referring to WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9]-[10] and [77]) (“Yusuf”), the Full Court said that the Tribunal was not required to refer to or make findings upon every piece of evidence but rather was required to make findings upon the matters prescribed in Reg 1.15A(3).

(c)    Although the analysis of the “circumstances of the relationship” and the “matters” in Reg 1.15A(3) are to be considered at the date of the Tribunal’s decision, this does not mean that the history of the relationship is irrelevant to the Tribunal’s consideration of those circumstances and matters.

110    With respect to the appellant’s reliance on Dhillon, the respondent submits that the Tribunal’s findings were not based on “doubts” or “conflicting evidence”. Rather, the evidence put forward by the appellant and his sponsor was not sufficient to satisfy the Tribunal that they were in a genuine and ongoing relationship; that they shared a mutual commitment to each other to a shared life to the exclusion of all others; and that they lived together, or lived apart but not on a permanent basis.

111    It is important to remember that an appeal by way of re-hearing requires the appellate court to decide for itself whether the decision of the primary judge is correct or incorrect which requires the Full Court or a single judge exercising the Court’s appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the Tribunal took a course (as contended by the appellant) that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [20] and [30]. Accordingly, it will be necessary to consider aspects of the Tribunal’s decision in a little further detail.

112    Section 5F which sets out, for the purposes of the Act, the factors which determine whether a person is the spouse of another, is set out at [21] of these reasons. The visa the appellant applied for (a Partner (Residence) (Class BS) (subclass 801) visa) is subject to the requirements of cl 801.221 of Schedule 2 to the Regulations, and the subclauses of cl 801.221 are set out at [18] of these reasons.

113    The central point of relevance for present purposes is that the appellant only meets the requirements of the subclauses (and thus, the clause) if the appellant is the spouse of the sponsoring partner and the term “spouse” engages s 5F and all of the integers at s 5F(a), (b), (c) and (d). Section 5F(3) provides that the Regulations may make provision in relation to the “determination” of whether one or more of those four integers “exist” in relation to the two persons said to be in a spousal relationship, and as to the visa sought by the appellant, the Regulations provide that the Minister “must consider” “all of the circumstances of the relationship”: Reg 1.15A(2). Those circumstances include the “matters” set out in subregulation (3). The statutory obligation cast upon the Minister (or his or her delegate) is to “consider” all of the circumstances and to “consider” the prescribed “matters” at Reg 1.15A(3): Reg 1.15A(2). The scope of the statutory obligation to “consider” those two things is an obligation to consider the circumstances and matters put to the decision-maker by or on behalf of one or other or both of the two relevant persons. The decision-maker must decide, having considered all of the circumstances and each of the matters, on the material put to him or her (including documents, statements, declarations, oral evidence) whether the applicant for the visa is the spouse of the sponsoring partner. In considering the circumstances and matters, the decision-maker will be called upon to accept or reject evidence or decide whether evidence is insufficient or non-existent on a particular circumstance or matter. In examining the evidence put to the decision-maker and deciding whether to accept or reject evidence, or form a view that evidence is insufficient or non-existent on a particular circumstance or matter, the decision-maker is seeking to establish whether he or she can reach a state of satisfaction about whether the applicant satisfies the requirements of the clause upon which the visa is conditioned, and the provisions of the Act. As to the scope or content of the obligation to “consider” all of the circumstances of the relationship including the matters at Reg 1.15A(3), the Full Court in He v MIBP said this at [76]:

In our opinion, 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 nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

(i)    whether there are children and whether there is any joint responsibility for their care and support;

(ii)    what the living arrangements of the persons are; and

(iii)    whether and to what extent there is sharing of the responsibility for housework

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a particular matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.

114    Regulation 1.15A(3)(a) (the financial aspects of the relationship) includes any joint ownership of real estate or other major assets; any joint liabilities; the extent of pooling of financial resources; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses: Reg 1.15A(3)(a)(i) to (v).

115    The appellant relies upon his oral evidence at T, p 11, ln 25 to T, p 14, ln 10 of the Tribunal hearing on 30 January 2017. The exchanges across those pages include the following exchanges:

Member:    Okay. And your salary, does that get paid into the joint account? I need you to interpret and not have a conversation with him, please.

Interpreter:    Sorry, I just had to clarify.

Member:    Well, then, you need to say that’s what you’re doing, and ask me to do that.

Interpreter:    Okay. Well, he say in the same bank they’ve got two accounts. One is the joint one, and his one. His salary goes into his one.

Member:    All right. So your salary goes to your own account.

Interpreter:    Not the joint one.

Member:    Okay.

Interpreter:    Well, the money goes to his account and they have a joint account as well, and he’s saying that his wife has got all the access and she can take money from either of the accounts.

Member:    Right. So and your wife, what money – what does she do for money?

Interpreter:    She is unemployed but she is studying at the moment, and because she’s not feeling well, she can’t work.

Member:    So does she receive any government benefits?

Interpreter:    She used to get support from government, but he’s saying not any more. He’s saying she used to get $400.

Member:    So she used to get $400 a week. What kind of – what was that for? Was that unemployment? Was it for study? Was it Disability Support?

Interpreter:    He isn’t sure. He thinks it was for her health issue that she couldn’t work.

Member:    When she was getting that money, was that going into her account or the joint account? Where did that money go?

Interpreter:    It went directly into her account, but she used to pay the groceries shopping from that money.

Member:    Sorry, I missed the first part you said, interpreter.

Interpreter:    The money from the government support, went into her account.

Member:    Okay.

Interpreter:    And he was saying she used to pay groceries. That’s what she used the money for. Marek used to pay rent, electricity and internet, and she used to pay groceries.

Member:    And how much is the rent where you are now?

Witness:    $380.

Member:    And how much do you pay?

Witness:    I pay $380, but every month pay son, and pay house and electricity, because son is no ---

Interpreter:    Her son is getting paid monthly, not weekly.

Member:    Okay. So the rent is $380 a week. You pay the rent. Does the son pay anything?

Interpreter:    Marek is paying three weeks, and the fourth weeks, the son is paying rent.

Member:    All right. And what about your wife?

Interpreter:    Yes, it’s a joint account, so it’s paid from. He earns the money and he pays the rent, and from the marriage account – so he pays all this from the joint account.

Member:    So you pay it from the joint account or you pay it from your own account?

Interpreter:    Sorry, I need to clarify.

Member:    No, I want to hear what he said first, please.

Interpreter:    He’s saying that from his account, he transfers the money to the joint account. Okay. So the wife transfer money from his account, and then they pay rent. He is happy to show you the bank statements.

Member:    Sorry, say that account?

Interpreter:    He’s happy to show you the bank statements and rent payments.

Member:    Where are they? Where are they?

Interpreter:    He doesn’t have it on him at the moment, but he said it can be provided later.

Member:    Well, this is your opportunity to provide all your evidence.

Interpreter:    I wasn’t aware it was this time. He didn’t know he could bring the documents in and all the paperwork.

Member:    So the only bank statement I see, doesn’t actually – that’s only a – it’s a 2014 bank statement. It doesn’t have anyone’s name on it, so I don’t know whose bank statement it is.

Interpreter:    He’s saying it both – his bank account and the joint account.

Member:    Well, I can’t tell that from this.

Interpreter:    He’s got two accounts at the same bank. It’s the same bank. After the wedding they open another account, it’s a joint account, and they both (indistinct) from the same account. Which one for the (indistinct) both bank accounts, and we just transfer money from one to the other account, and use it.

Member:    Right. So you each have your own bank account, and a joint account?

Interpreter:    Yes. We have three. His wife has one which she had before they met, and then they opened a joint account. He’s saying that there’s three accounts. One she had previously with her bank, and then they opened joint accounts at the same bank when Marek was (indistinct).

116    The appellant says that these exchanges demonstrate that there was, at the date of the Tribunal’s decision, evidence of claims of an inter-relationship between the Centrelink payments of the sponsor and the appellant’s earnings, and that their accounts were related to enable transfers of money to pay joint expenses. The appellant says that the Tribunal’s acceptance that there is “some evidence of sharing/pooling financial resources” but that the “tribunal considers the financial aspects are limited”, is not a “finding” as to “the financial aspects of the relationship” for the purposes of Reg 1.15A(3)(a)(i) to (v). The appellant particularly refers to the oral evidence marked in italics quoted at [115] as evidence of a joint account and also separate accounts with the sponsor having access to both.

117    Paragraph [24] of the Tribunal’s reasons concludes with two sentences which contain the statement and conclusionary observation that the appellant criticises as described earlier. Paragraph [24] needs to be taken into account in its entirety. It is set out at [35] of these reasons. It need not be set out again here.

118    I am satisfied that the Tribunal has considered all of the matters at Reg 1.15A(3)(a)(i) to (v) and that the last two sentences, fairly read, are findings on those matters having regard to para 24 and the reasons overall. The Tribunal did not merely refer to conflicting evidence. It discussed the available evidence before it and, by its exposed reasons, considered and evaluated the evidence of the appellant and the sponsor. It reached a conclusion on the extent to which the financial aspects of the relationship of the appellant and the sponsor suggested any joint ownership of assets; any joint liabilities; the extent of any pooling of financial resource, especially in relation to major financial commitments (such as rent); whether the evidence suggested any legal obligations owed one to the other; and the extent to which household expenses were shared or not. The Tribunal’s references to the “limited” nature of evidence of the financial aspects of the appellant’s relationship with the sponsor were sufficient to record the Tribunal’s “mental process” in reaching its decision as described by the Full Court in He v MIBP at [79]. I will return to the question of drawing inferences, in light of He v MIBP, later in these reasons.

119    The second aspect of the Tribunal’s reasoning impugned by the appellant concerns Reg 1.15A(3)(b) (the nature of the household including the care of children; living arrangements; and any sharing of the responsibility for housework). The Tribunal addresses those matters at [25]-[38] of its reasons: see [37] to [46] of these reasons as to those matters.

120    Before the Tribunal, the appellant essentially asserted that he and the sponsor lived apart for a period of six to eight months prior to the hearing on 30 January 2017 during which time the appellant worked and lived on the Gold Coast so as to be more proximate to his place of work. Before that, the appellant and sponsor had lived at Kallangur, then Caboolture and then Eagleby together (the latter move was so the appellant could be closer to work) for about a year and a half. When asked about the couple’s separations, the sponsor said that “it’s because of me. It’s because of my illness. Because, like I said, I don’t want to be – when I found out, I went a bit potty. I don’t want to be around – I just don’t want to be around people”.

121    When asked how long they have been living together “this time”, the sponsor said, “Not a great time but Marek was working at the Gold Coast and I was living at my daughter’s place, and then we moved into – he decided that he was going to get a job and was offered a job here, so he took the job here, so we moved into this place at Kallangur”.

122    It emerged from the Member’s questioning, that the appellant and sponsor had been “back” together for four to five months and that, when separated, they “always spoke.”

123    The Tribunal considered this material and “[did] not accept the applicant’s claims that they [the sponsor and the appellant] have been living together all the time, other than six to eight months when he worked on the Gold Coast”. The Tribunal then at [30] noted the withdrawal of the sponsor’s support for the appellant and found at [31] that “there was limited documentary evidence of the couple sharing a household during their claimed relationship”. The Tribunal noted a lack of a tenancy agreement, joint bills and did not accept the appellant’s explanation that he did not feel competent enough with English to converse on the phone with providers. The Tribunal considered that this was not a sufficient explanation of a lack of bills in joint names.

124    A central contention of the sponsor and the appellant was that, despite being apart, they were not living apart on a permanent basis. The Tribunal considered that the “[appellant] was not telling the truth about his living arrangements with the sponsor”. In forming this view, the Tribunal considered the appellant’s evidence that he returned home each weekend from the Gold Coast and rejected that claim on the basis that it was inconsistent with the sponsor’s daughter’s statement in which she said that the appellant visited her mother on an “occasional basis”.

125    Ultimately the Tribunal accepted at [32] that the couple shared a household for “short periods” but did not accept that the appellant and sponsor shared a household on a permanent or continuing basis. Again, I am satisfied that when the Tribunal’s exposed reasons are read fairly as a whole, the Tribunal has made findings on the integers of Reg 1.15A(3)(b) with respect to the nature of the household at each of [26], [27], [28], [29], [30], [31], [32], [33], [34], [35], [37] and [38]. The Tribunal considered the central contentions made by the appellant that he lived on the Gold Coast and returned to the sponsor on a weekly basis and that the couple were, fundamentally, living together on a permanent basis. These were factual matters that the Tribunal considered having regard to the oral evidence of the couple and the material in the appeal record. The appellant contends that after having considered the matters relating to the bank statements, when addressing the financial aspects of the relationship, the Tribunal did not go on to make a finding about the “living arrangements” of the appellant. That is not a fair reading of the Tribunal’s reasons. The Tribunal considered the issue of the bank accounts and bank statements as a factor in the Tribunal’s “mental process” of deciding whether the couple did, or did not, share a household on a permanent or continuing basis. However, there can be no doubt that the Tribunal considered and reached conclusions (findings) about the household factors and whether the appellant and the sponsor were, or were not, living together or whether, on the evidence, they “do not live separately and apart on a permanent basis”. All of the observations of the Tribunal at [25] to [38] of the Tribunal’s reasons need to be read together to understand the line of reasoning and the “conclusions” reached by the Tribunal about those matters.

126    As to Reg 1.15A(3)(c) (the nature of the persons’ commitment to each other), the appellant says, again, that no “findings” were made by the Tribunal and that the Tribunal’s concern that evidence was “limited” was wrong as there was “ample evidence” to make a finding about these matters at subpara (c)(i) to (iii). The appellant emphasises pages 22 and 26 of the transcript of evidence before the Tribunal. The relevant extracts so far as the sponsor is concerned are said to be these:

Ms Hartman:    He makes me laugh.

Member:    What do you like to do together?

Ms Hartman:    We go shopping together. We do – he enjoys his antiques. I’ve got a lot of antiques and I love them, but he comes with me. We pick them up together. We go to the beach. We spend a fair bit of time at my daughter’s place up at Beerburrum, and with her partner. We spend a lot of time with them. We do things with my 30 year old son that’s with us, and sometimes if I’m not feeling that good, him and Jeremy will go and – go away, like New Year’s at my daughter’s place, they went to, and I went up and picked them up. And barbeques up there. Yes.

Member:    You didn’t spend New Year’s with him?

Ms Hartman:    No, I was not feeling that well.

Member:    But you went up to Beerburrum and picked them up?

Ms Hartman:    I went up to Beerburrum and picked them up at 1 o’clock in the morning, but I didn’t physically go to the party because I couldn’t sit there for all those hours while everyone was drinking, because I’ve got cirrhosis of the liver, so I don’t like being around people who drink.

…

Member:    What do you like to do together?

Ms Hartman:    We like watching movies. We like going up to my daughter’s place, she always has barbies on, and different parties. And he goes up there at times. He will go up to paint her house – her and her partner’s house. He was up there with her partner, if there’s something else to do – they’re building a big deck at the moment.

127    The appellant says that this evidence is evidence of and attests to the elements of the social interactions between the appellant and the sponsor.

128    The Tribunal, however, was concerned there was “limited” evidence of the social aspects of the relationship. The Tribunal addressed the four statutory declarations provided by friends of the appellant and sponsor. The Tribunal attributed little weight to all of them because, in the case of the first three, they were made three years from the date of the hearing and, in the case of Mr Jakubec’s statement in 2017, it did not refer to the couple’s separation.

129    The Tribunal accepted that the appellant and sponsor socialised with the sponsor’s children but noted that the sponsor’s evidence was also that they do not otherwise socialise due to her ill health. Whilst the appellant socialises with his friends, the sponsor does not.

130    After the hearing, the appellant provided photographs of a Christmas and New Year’s Eve Party. The Tribunal considered the photographs but noted that many did not show the appellant and sponsor together. The Tribunal attributed “some weight” to the photographs but did not consider that they showed frequent socialising. With respect to the attendance of the appellant and the sponsor’s son at a New Year’s Eve party, the Tribunal considered, as earlier noted, that it was “odd” that the sponsor and appellant would not spend New Year’s Eve together in circumstances where the sponsor was well enough to collect the appellant and her son at 1.00am after the party, notwithstanding the sponsor’s evidence about her reasons for not attending the party.

131    At [37], the Tribunal also considered that the appellant and sponsor had given contradictory evidence concerning the sponsor’s relationship with the appellant’s mother and sister. The Tribunal noted that the appellant’s evidence was that the sponsor had not spoken to the appellant’s mother or siblings on account of a language barrier and that the appellant’s mother did not have internet access. The Tribunal noted the sponsor’s evidence that she had spoken to the appellant’s mother on Skype and was Facebook friends with the appellant’s sister.

132    Although the inference drawn by the Tribunal that there is something “odd” about the sponsor not attending the New Year’s Eve party is not open simply on the foundation fact that she did not attend yet was able and willing to collect the appellant and the sponsor’s son from the party at 1.00am (especially in the face of the explanation by the sponsor), ultimately, the Tribunal found that there is “limited” evidence of social aspects of the relationship. I accept that this is a finding on the integers of Reg 1.15A(3)(c). In its reasoning leading to its conclusion, the Tribunal is not merely noting “conflicting evidence” or “doubts” in the sense described in Dhillon but is expressing a conclusion flowing from its examination of the evidence which informs the decision-maker’s ultimate decision about whether the appellant and sponsor are in a “married relationship” for purposes of s 5F of the Act. The Tribunal’s observation about the oddity of the sponsor not attending the party was not determinative of the Tribunal’s conclusion.

133    The final impugned aspect of the Tribunal’s reasons is Reg 1.15A(3)(d) (the nature of the persons’ commitment to each other including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as long-term).

134    The Tribunal considered these aspects from [39]-[54] of its reasons. However, the appellant contends that “few, if any”, “findings” were made. Broadly, the Tribunal considered the evidence that the sponsor and the appellant have separated “a number of times” and that the sponsor had withdrawn her support of the appellant, twice.

135    At [41], the Tribunal did not accept that the sponsor and appellant are committed to each other or that they share a mutual commitment to a shared life or that their relationship is “genuine and continuing” having regard to the “documentary evidence and the evidence at hearing”.

136    The Tribunal then went on to consider the sponsor’s statement that she draws emotional support from her daughter. The Tribunal considered the sponsor’s daughter’s statement of March 2016 in which she considers the appellant to be a good husband and stepdad “who visits”. The daughter believed that the couple separated on account of her mother’s ill health and that she believed the appellant and sponsor could get back together.

137    The Tribunal then considered the circumstance that the appellant “knew little” about the sponsor’s health problems. As to that observation, the appellant’s evidence was that the sponsor has a heart condition; he thinks she has a liver issue; and he is “not 100 per cent sure she’s got cancer”. The appellant’s evidence was that he was unsure why the sponsor had an infusion and that the sponsor takes medication for “heart issues and sort of urine issues and that she goes to the doctor very often”. The appellant’s evidence was that if the sponsor goes to the doctor, she goes with her daughter.

138    The Tribunal referred to the appellant’s outpatient appointment letter that referred to a number of medical issues (cirrhosis of the liver, Graves’ disease, OCD, clinical depression and suspected lymphoma): [44]. The Tribunal was not persuaded that the appellant’s lack of knowledge of the sponsor’s medical conditions was attributable to his poor English capability because the appellant was able to communicate through his interpreter and had every opportunity to discuss and describe the sponsor’s health conditions. The Tribunal considered it “odd” that the appellant did not take “more interest or ensure he understood the sponsor’s health conditions if he was in a committed, long term relationship” [emphasis added]. The Tribunal considered that the circumstance the appellant had “limited knowledge” of “did not take steps to find out” about the nature and extent of the sponsor’s medical illnesses and conditions, suggests a lack of interest and commitment. That inferential conclusion was plainly open.

139    The Tribunal noted what it regarded as an inconsistency in the evidence between the appellant and sponsor as the appellant gave evidence that the sponsor went to doctors’ appointments with her daughter, whereas the sponsor said she preferred to go to the doctor alone. The Tribunal did not accept that the appellant could not attend or take the sponsor to some appointments. The Tribunal thought that because the appellant was self-employed, he could arrange work around “at least some” of the appointments. The Tribunal also considered that the appellant’s position that he would not get paid if he did not work (in order to attend the medical appointments) indicates a lack of “commitment and willingness” to provide “emotional support”. The Tribunal said on this issue that whilst the appellant visited the sponsor in hospital, it considered that the appellant’s lack of knowledge of, interest in, and emotional or practical support concerning the sponsor’s health conditions, suggests a “lack of commitment to the relationship”. That inferential conclusion was also open.

140    The Tribunal considered the sponsor’s evidence that she first relies on her daughter (and adult family) for emotional support suggests a lack of reliance between the appellant and the sponsor as husband and wife.

141    The Tribunal considered that these circumstances indicate that the appellant and the sponsor lack a “mutual commitment” and that circumstance is inconsistent with a spousal relationship.

142    The Tribunal also considered that the appellant and sponsor had different priorities because the sponsor wanted to purchase property and complete her PhD whereas the appellant wanted to save money to travel to Europe and show the sponsor where he lived.

143    The Tribunal found that aspects of the evidence was not consistent concerning the shared interests of the appellant and sponsor as the sponsor (when asked what the couple shared in common) said that the appellant makes her laugh, whereas the appellant “hesitated” and simply said “everything”. The Tribunal noted that the appellant then added that “they liked animals, going to Bunning[s], the movies and the open markets. The [appellant] said the sponsor spent all day and night on the internet and he did not like that she bought things on the internet”. The Tribunal, in reaching its decision, considered that the sponsor and the appellant were not “forthcoming and spontaneous” on this matter in giving their evidence.

144    The Tribunal found that the appellant had little knowledge of the sponsor’s previous relationships and when they ended. The Tribunal had regard to the appellant’s evidence that he knew the sponsor had had marital relationships, with a child from each. He knew that the sponsor kept in contact with “Dave” and did not mind. The Tribunal noted that the appellant did not know why the relationships ended and while the Tribunal accepted that this may not be important information, the Tribunal considered that the appellant did not know of, or concern himself with, information about recent past relationships which, in turn, indicated a lack of understanding and communication between the couple.

145    Again, the Tribunal referred to the appellant being unaware of the sponsor’s health problems “prior to marriage” and said that this also indicates a lack of open and honest communication and understanding between the couple.

146    The Tribunal also referred to the language barrier between the couple (which both the appellant and sponsor made reference to as “[making] things difficult”). With respect to the future, the Tribunal noted that the sponsor said she could not predict what could happen, but emphasised that the appellant was liked by her family and that he provides companionship and makes her laugh.

147    The Tribunal concluded that “on the evidence before it, the tribunal finds the commitment aspects of the relationship are not consistent with a spousal relationship”.

148    The appellant’s complaint about the Tribunal’s treatment of the matters in Reg 1.15A(3)(d) is that the Tribunal did not engage with the substance of the appellant’s submission in the sense described by the Full Court in BZD17 at [36] (citing the Full Court in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541 at [19]-[20] and at [38]). The passage at [36] in BZD17 is set out at [107] of these reasons. The point of criticism made by the appellant is that the Tribunal did not exhibit “an active intellectual engagement” with the relevant matters in question and the appellant was “left to guess” what role, if any, the relevant considerations played in the decision made by the Tribunal. There is no doubt that the Tribunal considered the evidence before it going to the Reg 1.15A(3)(d) matters.

149    Those propositions of the appellant, as a criticism of the Tribunal’s decision on this topic, are entirely unsustainable. The Tribunal has analysed the evidence thoroughly. It has particularly had regard to the circumstances relating to the question of the commitment of the appellant and the sponsor one to the other. It has reached a conclusionary position on the various factors after having considered the evidence on the nature of the persons’ commitment to each other. In that sense, it has reached findings about those matters.

150    It is not correct, in my view, to characterise the Tribunal’s reasons on the Reg 1.15A(3) matters as merely reciting the submissions and propositions put to it by the appellant and sponsor. The Tribunal engaged with the prescribed matters in Reg 1.15A(3) in a way that demonstrates an engagement of the mental process of the decision-maker with the particular factual circumstances of the case that goes to answering the ultimate statutory question in s 5F of the Act, aided by Reg 1.15A(3). The Tribunal exhibited an active intellectual engagement with the evidence on those matters because it was actively conscious of the state of the evidence and engaged with it by a series of cognitively recognisable evaluative steps. Neither the sponsor nor the appellant was left to guess the “thinking” or the conclusions of the Tribunal. The ultimate statutory question is whether the appellant and the sponsor are in a “married relationship” which, according to the integers of the statute, requires determination of whether:

(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 a 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.

[emphasis added]

151    As can be seen from the Tribunal’s reasons at [55]-[59], the Member considered that the relationship between the appellant and sponsor has been more “off” than “on” throughout the last few years; the sponsor has withdrawn her support from the appellant twice; there is a lack of documentation to support the relationship’s existence; there was inconsistent evidence about their future plans, common interests, goals and contact with the appellant’s family and the nature of the financial, household, social and commitment aspects of the relationship, leading to the Tribunal’s conclusion that it did not accept that the appellant and the sponsor share a mutual commitment to each other and causing it to not accept that the appellant and the sponsor live together or that they live apart but not on a permanent basis.

152    The Tribunal discharged its review powers in accordance with the Full Court’s consideration in He v MIBP. Ground 1 must fail.

153    The appellant accepts that ground 5 “coalesce[s]” with ground 1: para 49 of the appellant’s written submissions. Accordingly, ground 5 must also fail.

Grounds 2, 3 and 4

154    The appellant also says that grounds 2, 3 and 4 “coalesce”: para 46 of the appellant’s written submissions.

155    Essentially, the appellant asserts that the Tribunal did not conduct a proper review for the purposes of ss 348 and 349 of the Act because it did not adequately set out or expose its path of reasoning explanatory of its reasons in accordance with the High Court’s decision in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (“Wingfoot”). In particular, the appellant relies upon these observations of French CJ, Crennan, Bell, Gageler and Keane JJ at [54] and [55]:

54    The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

55    The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion

[bold emphasis in appellant’s submissions]

156    In Wingfoot, their Honours were, of course, dealing with a specific statutory scheme that involved a statutory obligation (“within the scheme of the Act”) to provide written reasons dealing with certain matters. In that context, their Honours were certainly expressing matters of principle applicable to the legality of decision-making within the scheme of that Act. Persons whose rights were affected by decisions of the Medical Panel were entitled to a statement of reasons as the exposed basis for the decision so that those persons so affected, and the Court, could test the legality of the decision on grounds of error of law. The High Court noted in Wingfoot that the nature and content of written reasons will depend on the statutory context: see [43]-[44] of Wingfoot.

157    Section 368(1) of the Act requires the Tribunal, in making a decision in the exercise of the statutory review function, to make a written statement that:

 (a)    sets out the decision of the Tribunal on the review; and

 (b)    sets out the reasons for the decision; and

 (c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application – indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

 (f)    records the day and time the statement is made.

158    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”), the High Court considered the question of the Tribunal’s obligation to make findings on any material questions of fact and its obligation to provide reasons for the decision exposing its views on the materiality of matters going to the findings so made, in the context of a review by the Tribunal under Part 5 of the Act in the context of a claim of an applicant to be a refugee for the purposes of the Act. That, of course, is not this case. However, in Yusuf, their Honours were considering s 430 of the Act which, apart from s 430(e), is in the same terms as s 368(1) of the Act and, relevantly for present purposes, in the same terms as s 368(1)(a), (b), (c) and (d) of the Act. At [10] in Yusuf, Gleeson CJ said this:

The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, “sets out the findings” on any material questions of fact. It is impossible to read the expression “the findings” as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made. The construction of s 430 for which the respondents contend in effect eliminates the definite article from s 430(1)(c), treats “any” as meaning “all”, and finds in an express obligation to make a written record of findings of fact an implied obligation as to the ambit of the findings which must be made. None of this is impossible, but, like the meaning that the respondents attribute to s 476(1)(a), it is strained. When to that is added the incongruity associated with s 476(3)(e), and the problems of determining materiality on an “objective” basis in the context of legal review of a decision which commonly turns upon the Tribunal’s assessment of the credibility of a person seeking to establish the status of a refugee, it is a construction I am unable to accept.

[emphasis added]

159    As mentioned earlier in He v MIBP at [76], the Full Court, as a matter of statutory construction, construed the scope of the obligation cast upon the Minister (and thus the Tribunal), by Reg 1.15A(2) to “consider” all of the circumstances of the relationship including (and thus an obligation to “consider”) the matters set out at (a), (b), (c) and (d) of Reg 1.15A(3), as matters falling within the scope of the obligation arising under Reg 1.15A(2). The Full Court construed the scope of the obligation to “consider” as comprehending an obligation to, in effect, answer questions posed by each of the matters at each Roman numeral within each of (a), (b), (c) and (d) of Reg 1.15A(3). The Full Court regarded that obligation, so construed, as an obligation to make findings upon each of the prescribed matters within each of (a), (b), (c) and (d) of Reg 1.15A(3). Yusuf is authority for the proposition (apart from the important affirmation of the Craig principles, at [82] in Yusuf, McHugh, Gummow and Hayne JJ) that the Tribunal must set out, in its reasons for decision, the findings it has made, and there is no implied obligation to make findings of fact on every question in issue before it: Yusuf, Gleeson CJ at [10]; McHugh, Gummow and Hayne JJ at [68] and [69]. So far as this case is concerned, He v MIBP is authority for the proposition that the Tribunal is under an obligation to make findings which represent an answer (if capable of being answered) to each and every one of the “questions” raised by the subject matter of the Roman numerals at each of (a), (b), (c) and (d) of Reg 1.15A(3). That being so, the Tribunal has an obligation to set out the findings on any material questions of fact going to each of those matters in its reasons for the decision: He v MIBP at [76]; s 368(1)(b) and (c). In this case, the Tribunal did set out its findings on the material questions of fact engaged by the questions in issue before it, as put to it by the appellant and the sponsor. As explained earlier, the Tribunal engaged with those matters in an active intellectual way and explained in its exposed reasons the concerns it held about aspects of the evidence, and explained the basis upon which it reached its conclusionary considerations, that is, its findings.

160    In my view, the Tribunal discharged its statutory obligation to conduct a review of the Tribunal’s decision. The Tribunal evaluated the evidence put to it going to the circumstances and matters relevant to the questions in issue. It exposed its evaluation of the evidence and it made clear where, and on what footing, it either accepted or rejected evidence. It made clear the conclusions it reached on the questions it was called upon to address.

161    That being so, it discharged its statutory obligations.

162    It follows that grounds 2, 3 and 4 must fail.

163    In the result, none of the grounds of appeal are made out. Accordingly, the appeal must be dismissed with an order that the appellant pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    11 June 2019