FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Home Affairs [2019] FCA 892

ORDERS

THE COURT ORDERS THAT:

    1. The appeal be allowed.

    2. Orders 3 and 4 of the decision of the Federal Circuit Court made on 29 November 2018 in File No PEG295/2017 be set aside and in lieu thereof it be ordered that the decision of the Administrative Appeals Tribunal dated 4 May 2017 in case number 1600703 be set aside and the matter be remitted to the Tribunal for determination according to law.

    3. The appellant's costs of the appeal and of the proceedings in the Federal Circuit Court be paid by the first respondent to be assessed if not agreed.

    4. The costs of the appeal be assessed on a lump sum basis if not agreed.

    5. If it is necessary to fix costs then:

(a)    the applicants may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the second respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum.

    6, There be liberty to the first respondent to apply within 10 days to vary orders 3, 4 and 5.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Thi Truc Phuong Nguyen was born in Australia. In 2014 she married Mr Van Ut Huynh in Vietnam. An application by Mr Huynh for a provisional partner visa was refused in 2015. Ms Nguyen sought review in the Administrative Appeals Tribunal. The review hearing was held in November 2016 and on 4 May 2017 the Tribunal affirmed the decision not to grant Mr Huynh a partner visa. Ms Nguyen then brought an application for judicial review in the Federal Circuit Court. The application was refused by the primary judge in November 2018. Ms Nguyen now brings an appeal in this Court.

2    The grounds of appeal allege errors by the primary judge in not finding that there was jurisdictional error by the Tribunal in failing to consider four matters before the Tribunal. For the following reasons one of those grounds has been made out. The appeal should be allowed on that basis and the matter remitted to the Tribunal for determination according to law. As Ms Nguyen has been substantially successful, it appears that the appropriate order is that the Minister should pay the costs of the appeal and of the proceedings before the primary judge. I will make those orders, but reserve liberty for the Minister to apply to vary those orders.

General principles concerning judicial review for failure to consider particular matters

3    To succeed on the application for judicial review before the primary judge it was necessary for Ms Nguyen to demonstrate jurisdictional error by the Tribunal. In order to demonstrate error of that kind, it must be shown that the decision that by the Tribunal lacked the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Tribunal was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]-[25].

4    The Tribunal has statutory authority to make factual findings concerning matters relevant to the application for judicial review and to determine the weight to be given to particular relevant considerations when exercising discretions. As stated in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [13] (Bell, Gageler and Keane JJ) 'it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence'. So, a view that there should have been a different approach by the Tribunal to those matters, even a view that might seek to characterise the Tribunal's approach as erroneous, does not demonstrate jurisdictional error.

5    Depending upon the nature of the statutory provision conferring decision-making authority upon the Tribunal in a particular case, there may be mandatory relevant considerations that the Tribunal must take into account. In such a case, a failure to consider those matters will be to make a decision of a kind that is not authorised by the statute. Even so, the Tribunal remains the repository of the authority to find the relevant facts. A factual finding concerning matters which, if established, may fall within the scope of a consideration that the Tribunal is bound to take into account in the exercise of a particular decision-making power is not reviewable simply because the consideration is made mandatorily relevant.

6    Further, there may be important differences in the way the mandatory obligation is expressed. A requirement that a decision-maker must have regard to a particular matter may require that it be considered or it may require that the matter must be given weight as a fundamental element when making the decision: Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [50]-[56] (Parker J, Malcolm CJ and Anderson J agreeing). Where there are a large number of prescribed circumstances to which the decision-maker must have regard that counts against a conclusion that each of them is to be given weight in a central or fundamental way: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [60]-[62]. The precise nature of the obligation to 'have regard to' specified matters is dependent upon the terms of the legislation and the particular circumstances in which the provision is to be applied: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [216]-[231].

7    A requirement to 'consider' requires that the matters be given 'proper, genuine and realistic consideration': Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [43] adopting the reasoning of Gummow J in Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 713. Khan was concerned with the application of a policy without regard to the merits of the particular case and was founded on a general obligation on the part of a decision-maker to give proper, genuine and realistic consideration to the merits of an application.

8    In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, the High Court sounded a note of caution as to the use of an epithet such as 'proper, genuine and realistic consideration' because it could encourage a slide into impermissible merits review: at [30]-[34]. It remains the task of the Tribunal to evaluate the evidence and make factual findings.

9    Also, the Tribunal must perform the task of considering the application. A failure to deal with evidence that bears upon a substantial and clearly articulated argument or is of sufficient importance to the application that it would be expected to be addressed may manifest a failure to discharge the statutory obligation to consider the application or to consider a particular mandatory consideration. An error of that kind is also jurisdictional. It may be seen as a failure to discharge the statutory task or as acting outside the statutory authority conferred because it is to make a decision without undertaking the requisite consideration. As to these matters see: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [62] and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116.

10    The precise nature of the failure to consider particular evidence or material that may demonstrate jurisdictional error depends upon all the circumstances, including the terms in which the statutory decision-making power is expressed: see, for example, the review by Allsop CJ of the authorities as they apply to the power conferred on the Minister by s 501CA(4) of the Migration Act 1958 (Cth) in Navoto v Minister for Home Affairs [2019] FCA 295 at [34]-[51].

11    However, generally the Tribunal will be found to have failed to perform its review function 'if it failed to take account of cogent evidence providing substantial support to the applicant's case' or 'if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case': SZMTA at [13].

12    There is a related (often overlapping) obligation to afford procedural fairness by considering material claims made in support of an application which arises unless excluded by statute: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] as approved in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90]. No claim was made of breach of the rules of procedural fairness in this case.

The applicable regulation

13    An applicant for a visa must satisfy the criteria and requirements prescribed under s 46 of the Migration Act. Relevantly for present purposes, the criteria required that Mr Huynh be the spouse of an Australian citizen, namely Ms Nguyen: Subclass 309 of Schedule 2 of the Migration Regulations 1994 (Cth).

14    For the purposes of the Migration Act, s 5F provides that a person is a spouse of another person if they are in a married relationship which will be the case 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 married couple 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 or apart on a permanent basis.

15    In considering whether one or more of the conditions in s 5F exist, the Minister (and the Tribunal on review) must consider all of the circumstances of the relationship, including the matters set out in reg 1.15A(3) of the Migration Regulations: see reg 1.15A(2). Relevantly for present purposes, those matters include:

(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;

…

(b)    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.

16    In He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41, the Full Court concluded that the matters in reg 1.15A(3) are relevant considerations to which the decision-maker is bound to give proper, genuine and realistic consideration by an active intellectual process: at [52]. The task to be performed in respect of a mandatory relevant consideration has been described as involving an active intellectual exercise (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [44]-[46]) and requiring meaningful consideration of the relevant matter (BCR16 at [12]). Importantly, it is not an obligation to give them weight or to bring them to account as fundamental elements in making the decision.

17    Further, the obligation which arises does not extend to making a finding as to the existence or otherwise of every potentially relevant circumstance that might pertain to each consideration. It is only an obligation to make any necessary findings of fact to support the conclusion reached as to each relevant consideration: He at [71] as considered in Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219 at [24].

18    As to the term 'consider', in He the Court said 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 …

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 prescribed matter … 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.

19    To paraphrase, as to each matter that the Tribunal must consider, there is no proper, genuine and realistic consideration or meaningful consideration as required unless there is a finding as to the facts that bear upon the consideration. The Tribunal cannot, by failing to make the requisite findings as to each consideration, discharge the statutory obligation to consider each of them. It must form a view. However, it is a matter within the jurisdiction of the Tribunal to form a view as to those factual matters. It is also for the Tribunal to determine how to bring each consideration to bear in reaching its conclusion as to whether a person is a spouse of another for the purposes of the Migration Act.

20    Then at [79], the Court made the following observations concerning the reasons of the Tribunal and the extent to which they may reveal a failure to undertake the task of giving proper, genuine and realistic consideration to each of the matters listed in reg 1.15A(3):

The making of a decision involves a mental process. The written statement functions as a record of the Tribunal's reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to 'consider' all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).

21    The decision of the Tribunal was made before the decision in He, but the Court was explaining principles that applied to the Tribunal's decision by reason of the terms of reg 1.15A(3). The law as stated in He applied to the Tribunal when it made its decision.

Principles as to inferences that may be drawn from Tribunal's reasons

22    There is considerable jurisprudence as to the nature of the factual conclusions that may be drawn from a failure by the Tribunal to refer to a particular matter in its reasons when it comes to evaluating whether the Tribunal has considered a particular matter or made a finding about a particular matter.

23    Reasons are provided in performance of the obligation imposed by s 430 of the Migration Act which requires the Tribunal to set out the reasons for its decision, the findings on any material questions of fact and to refer to the evidence or any other material on which the findings were made. The provision entitles a court to infer that any matter not mentioned in the reasons was not considered by the Tribunal to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] (Gleeson CJ), [69] (McHugh, Gummow and Hayne JJ), see also [35] (Gaudron J).

24    In considering whether to draw that inference, there must be regard to what is required by s 430. It does not require a decision-maker to give reasons for rejecting evidence inconsistent with findings made: Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 at [24] and [31] approved by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [65]. 'However, the obligation to set out 'the reasons for the decision' (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons': Durairajasingham at [65]. These observations are of some importance in the present case where each of the matters stated in the paragraphs numbered with Roman numerals in reg 1.15A(3) are matters that the Tribunal is bound to consider.

25    In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] the Full Court observed that the fact that particular evidence is not referred to in the Tribunal's reasons does not mean that the material is overlooked as it might have been considered but given no weight and therefore is a matter that is not relied upon in making findings of material fact. Then the Court stated:

But where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.

(citations omitted)

26    Some caution is required before drawing an inference that a matter was not considered by the Tribunal on the basis that the matter was not referred to in the reasons. The approach to be adopted was expressed in the following way by the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]:

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

27    It is also necessary to consider the nature of the statutory power being exercised. Where the Tribunal is required to reach a particular state of satisfaction then the inference to be drawn from a failure to refer to a particular matter is that it was not activating the Tribunal when it formed the requisite state of satisfaction: Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 at [15]. Here, the statutory power must be exercised by considering all of the circumstances of the relationship including each of the circumstances set out in reg 1.15A(3) as mandatory relevant considerations. It is to be expected that the reasons would refer to each of the considerations. However, it remains the case that the Tribunal is not required to state in its reasons why it does not accept each item of evidence even if it be evidence that could be said to be relevant to a mandatory consideration.

28    Before the primary judge, Ms Nguyen bore the burden of demonstrating that the failure to refer to particular evidence supported the drawing of an inference that there was a failure to consider a particular matter that the Tribunal was obliged to consider: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J).

29    Recently, the principles were summarised by the High Court in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] in the following terms:

The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any 'material questions of fact' and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

(citations omitted)

30    Finally, when it comes to a consideration whether a particular matter was mentioned or dealt with by the Tribunal, the reasons are not to be scrutinized minutely and finely with an eye attuned to the perception of error in a manner that disregards their role as a means of informing as to the matters stated in s 430: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Over-zealous judicial review whereby the reasons of the Tribunal are read in a manner that fails to have regard to their function as part of an administrative process and as a cloak for merits review must be avoided.

Grounds of appeal

31    The four grounds of appeal alleged errors by the primary judge in failing to make the following findings (each of which was said to comprise a jurisdictional error by the Tribunal):

(1)    the Tribunal was required to consider whether each of Ms Nguyen and Mr Huynh saw their relationship as a long term one which required a finding to be made as to their subjective views which the Tribunal failed to make, alternatively the Tribunal failed to consider evidence as to their long term plans;

(2)    the Tribunal was required to consider whether the relationship between Ms Nguyen and Mr Huynh was genuine and continuing but rejected evidence from family members because they did not set out any reasons for why they believed the relationship is genuine when there were reasons that the Tribunal was required to consider;

(3)    the Tribunal was required to consider the nature of the commitment between Ms Nguyen and Mr Huynh but did not properly consider evidence of their regular communication;

(4)    the Tribunal was required to consider any joint liabilities and whether one person in the relationship owed any legal liability in respect of the other when considering the financial aspects of the relationship between Ms Nguyen and Mr Huynh but failed to consider the liability incurred by Mr Huynh for the cost of an airfare for Ms Nguyen to visit Vietnam that had been paid by Mr Huynh's brother.

32    The four grounds of appeal reflect the four grounds of review advanced before the primary judge.

33    Each of the four appeal grounds relied upon the decision in He. Unfortunately, even though these matters are at the heart of the present appeal they were not addressed in any meaningful way by submissions for the Minister. Instead the submissions for the Minister treated the appeal as if it were itself an application for judicial review. It was submitted, in terms, that there was no jurisdictional error by the primary judge. When it was pointed out that the present proceedings were an appeal and not an application for judicial review of the decision of the primary judge, the submissions were maintained orally. Needless to say these submissions were misconceived in a fundamental way and were of no assistance.

34    The significance of the decision in He in the present context is that it considers and states the nature and extent of a failure to consider particular matters that will amount to jurisdictional error where a decision is to be made under reg 1.15A as to whether a person is a spouse for the purposes of an application for a spousal visa.

Ground 1: Views as to long term relationship

35    Applying He, one of the matters about which the Tribunal was required to make findings was whether 'the persons see the relationship as a long-term one': reg 1.15A(3)(d)(iv). As to that matter, the Tribunal found at para 47 that:

Apart from indicating that they wished to be reunited and live in Australia, little evidence was provided as to their mutual obligation and their long term plans.

36    The evidence in support of the application as to how each of Ms Nguyen and Mr Huynh saw their relationship was as follows.

37    First, Mr Huynh provided a statutory declaration in which he said at paras 64 to 73:

I would like to live together in Australia with my wife and her children as one family in the house rented by her and her parents located at [specified address] Western Australia …

I want to get to know my step-children even more.

My wife and I do not have much savings. She always tells me to save money but I still provided some money towards the cost of the appeal.

If I am granted a Partner Visa, we will be able to work towards our goal of living together as one family and saving enough money to eventually buy a house of our own.

Our intentions are that when I move to Australia, I will find a job. If I cannot find a job or can't find a job myself, my brother might hire me to work on his farm.

With the money that we save, we would like to buy a house to live in with our family. My wife always complains to me that paying the rent is very expensive so I told her when I move to Australia, we will work to buy a house so she doesn't have to complain about the expensive rent.

We would also like to live together as one family and let nature take its course in terms of having children together. I would like to have our own children.

My son … will be remaining in Vietnam and living with his grandparents.

Our goal is to live a simple life with each other.

We have been waiting to be together for many years. Since our marriage, it has been almost 3 years that we have not been able to live together.

38    Second, Ms Nguyen provided a statutory declaration in which she said at paras 132 to 140:

I would like to live together in Australia with Ut and my children as one family in the house rented by my parents and I located at [specified address] Western Australia …

I want my children to get to know Ut both as my husband and as their step-father.

Ut is a good man who takes care of me and will make a good father figure for my children. I know that he will take good care of me and my children.

Future

If he is granted a Partner Visa, we will be able to work towards our goal of living together as one family and saving enough money to eventually buy a house of our own.

Our intentions are that when he does move to Australia, he will find a job. If he cannot find a job or if he is not able to find a job himself, his brother will possibly hire him to work on his farm.

With the money that we save, we would like to buy a house to live in with our family. I always complain to Ut that paying the rent is very expensive so Ut has told me that when he moves to Australia, we will work to buy a house so I do not complain about the expensive rent.

We would also like to live together as one family and let nature take its course in terms of having children together. Ut would like to have 1 more child that is ours.

Our goal is to live a simple life with each other.

Ut and I have been waiting to be together for many years. Since our marriage, it has been almost 3 years that we have not been able to live together.

39    As to these matters, the Tribunal recounted in its reasons (para 40) the following evidence from Ms Nguyen:

She told the Tribunal that she relies on his support and wants him to come to Australia so they can start their family. He has told her it is expensive to rent and they will buy a house. He will look for work when he arrives. They have plans for the future and she just wants her husband to be here in Australia with her.

40    It was open to the Tribunal to characterise the evidence that was led to support the long term plans of Ms Nguyen and Mr Huynh as 'little evidence'. The reference to little evidence is to be understood in the context of separate statements by the Tribunal as to other matters on which the Tribunal placed 'significant weight'. In context, the reference to 'little evidence' is to an insufficiency of evidence to make the factor one upon which the Tribunal would place considerable weight in making its overall decision. It does not demonstrate that there was a failure to consider long terms plans and make findings about them.

41    It was submitted for the appellant that the terms in which reg 1.15A(3)(d)(iv) was expressed required that there be a finding as to the subjective intentions of each of Ms Nguyen and Mr Huynh. I do not accept that submission. The factor is expressed as one of the matters that the Minister must consider when considering 'the nature of the persons' commitment to each other'. The question raised by the terms in which reg 1.15A(3)(d)(iv) is expressed concerns their present state of mind concerning the relationship. Their plans and intentions may form part of the inquiry. However, the matter about which the Tribunal is to make findings is whether, at the time of the decision, both parties see the relationship as a long-term one. This is a question that may be answered by reference, amongst other things, to objective information about what they have done in the past as well as by reference to evidence from the parties as to their future plans.

42    The matters relied upon to support the ground do not rise above a complaint about the factual finding made by the Tribunal which was a matter within its authority to decide.

Ground 2: Genuine and continuing relationship

43    By reason of the terms of s 5F(2)(b), the Tribunal had to consider whether Ms Nguyen and Mr Huynh had 'a mutual commitment to a shared life as husband and wife to the exclusion of all others'. Statutory declarations were provided by a number of family members to the effect that the relationship was genuine and continuing. As to these declarations, the Tribunal stated (para 32):

The Tribunal considers that none of the sworn statements provided by the review applicant's family as well as the visa applicant's family set out any reasons for why they believe the relationship is genuine.

44    It was submitted for Ms Nguyen that the statutory declarations did set out numerous reasons why the relationship was genuine and continuing. The result, it was submitted, was a failure to consider and make findings about the reasons that were advanced.

45    As to this ground of review, the primary judge found that the submission was not based upon a fair reading of the Tribunal's reasons. His Honour concluded that it was apparent from reading the reasons as a whole that the Tribunal expressly referred to the statutory declarations and took them into account 'specifically in relation to the genuineness of the relationship'. It was found that para 32 of the Tribunal's reasons reflected 'an adverse finding by the Tribunal in relation to the adequacy of the reasons advanced as to believing the relationship to be genuine': at [32].

46    The reference by the primary judge to the Tribunal having expressly referred to the statutory declarations appears to be a reference to para 21 of the Tribunal's reasons which was as follows:

The review applicant provided a number of statutory declarations from the review applicant's family members as well as the visa applicant's family members stating that they are aware of the relationship and believe that it is genuine. Evidence was given by family members that the relationship was genuine and the parties wanted to be reunited. The review applicant's sister indicates she met the visa applicant in 2011 when she visited Vietnam. The review applicant's mother indicates both her and her husband met the visa applicant prior to their marriage but is silent on the year they met. One of the review applicant's brothers indicates he met the visa applicant shortly after the visa applicant's marriage to his sister when he was visiting Vietnam on his way to Thailand. It was submitted that the visa applicant met with the review applicant's parents and siblings sometime prior to his marriage to their daughter. The delegate refers to the visa applicant meeting the review applicant's siblings sometime in 2013 but was unable to remember when he met them.

47    However, the matters recited at para 21 did not concern the reasons why the family members expressed the view in their statutory declarations that the relationship was genuine. As to those reasons:

(1)    Mr Tan Hung Huynh (a brother of Mr Huynh who lives in Australia) said:

I believe my brother and his wife Thi Truc Phuong Nguyen 'Phuong' are in a genuine and continuous relationship to the mutual exclusion of all others.

I knew Phuong before they got married.

I've known Phuong for approximately 15 years.

I believe that she has known Ut for about 7 or 8 years and they started to contact each other in 2009 or 2010.

They started to be in contact with each other because of our sister Thuy Ngan.

She came to Perth for a holiday and met Phuong.

When our sister went back to Vietnam, she told our brother Ut about Phuong. I believe that she gave Phuong's phone number to Ut.

After that, they started to contact each other over the phone.

They knew each other for a few years before they got married.

Ut discussed proposing to Phuong with us. We told him that we did not have a problem with him getting married. It was his decision and we fully supported his decision.

They eventually got married to each other in Vietnam in 2014.

Due to work and family commitments, I was unable to attend the wedding.

A lot of our family and friends know that they are married and went to the wedding.

I sometimes see Phuong at the market. We do not talk much but just say hello and good bye. She talks more to my wife and they sometimes have coffee together.

Our Vietnamese culture means that as Phuong is my brother's wife and a female we will not talk a lot to each other. We just acknowledge each other and have a very brief conversation.

I know when Phuong goes back to Vietnam because my brother Thanh Phong will call me and let me know that she is going to Vietnam to visit Ut and our parents.

My parents are also very happy with Phuong and when she goes to Vietnam she gets along well with our family.

Phuong is very kind person and very respectful.

They have never discussed their future with me but I think that they are a good couple.

I believe that they were properly married and that their relationship is genuine. I do not believe there is any other reason for their marriage.

If they were not happy together they would not have agreed to get married.

I believe that they are very happy together and love each other.

They have lived in different countries since they were married but are still together and still trying to live together as one family in the same country.

I believe that this shows their commitment to each to each other is real and their relationship is genuine and continuing.

(2)    Mr Thanh Phong Huynh (another brother who lives in Australia) said:

I believe my brother and his wife Thi Truc Phuong Nguyen 'Phuong' are in a genuine and continuous relationship as husband and wife to the exclusion of all others.

I knew Phuong before they got married.

Approximately 10 years ago Phuong used to assist on my farm because her ex-de facto partner was my business partner. Her ex-partner was and still is my business partner.

When she broke up with her ex-De Facto partner, she and Ut started talking to each other.

Through someone, I believe my sister who came to visit me, they got to know about each other and started calling each other.

They eventually got married to each other in Vietnam around 2014.

They have been married now for a few years.

I couldn't go to the wedding because I was busy with work.

All our family members know they are married and many of our family and friends attending [sic] their wedding ceremony.

My parents approve of their marriage and love Phuong.

My mother has told me that Phuong is respectful and a woman who makes a good wife.

In my opinion, Phuong is a very good wife. She is honest, kind, caring and loving.

I previously lent $3000.00 to Ut. I believe the money was for Phuong to pay for the airfare for her to visit Vietnam.

Ut and Phuong have not repaid this money to me yet.

I usually go back to Vietnam every year in November for 3 weeks.

Phuong has given gifts to Ut many times. When I go back, Phuong will ask me to take give me perfume/ deodorant back for him.

Ut seems to be very happy since he met Phuong. I have noticed that he spends a lot of time talking to Phuong on the phone.

When I was in Vietnam, I saw Ut talking to her on the phone every afternoon. I believe this is the time they talk every day because Phuong finishes work.

Even when we were at a family party, dinner or are out somewhere he would leave to talk to her in private.

I also know when Phuong goes back to Vietnam to visit my brother because she will call my wife. When she goes back to Vietnam, she calls my wife to ask if there is anything we need her to take back for my parents.

I believe that they are a good couple and that they love each other very much.

Ut has told me about their plans together for the future. He told me that he would like to have a child with Phuong and they have tried to start a family together but their attempts have not been successful.

I believe that they were properly married and that their relationship is genuine. I do not believe there is any other reason for their marriage.

(3)    Ms Thi Dep Bui (Ms Nguyen's mother who lives in Australia) said:

Ut is married to my daughter Thi Truc Phuong Nguyen 'Phuong'.

…

All our family know and support the marriage between Ut and my daughter.

I talk to Ut when Phuong is busy and cannot pick up her mobile phone.

When I talk to him or refer to him, I call him my son as usual in Vietnamese culture and he calls me Mum.

I live with Phuong and she talks to me about almost everything. She has told me about their relationship and about their plans together.

She has told me about the good and bad times that she has had with Ut.

I have seen Phuong talk to Ut almost every day because we live together. They are constantly on the phone to each other talking. Usually she will talk to him at home when she has finished work. I also know that they are talking to each other because sometimes Phuong talks loudly.

Sometimes, I also give motherly advice to Phuong as well. For example, I will sometimes comment on the tone of voice she uses.

Recently, they have been arguing because of the stress of all the paperwork. I hope that this time the appeal is successful and Ut can come over here to live with Phuong because I want her to be happy.

That is also another reason I do not ask her much about Ut and what is happening with his Visa. I don't want to cause her any more stress or make her think of unhappy memories.

That is why I do not ask her in detail about her relationship with Ut and when we talk, it is about everyday things.

She has asked me what I think about her and Ut having children together.

As I accept her marriage to Ut and that she now has a new family, I told her of course she had to have a child with Ut. This would be the natural course of things to happen and I encourage her to start a family with Ut.

She asked me who would look after the child and I told her that I would take care of the child.

As this is Phuong's 'second' marriage, we were happy and have left everything up to her and her husband.

They are both adults and make their own decisions which we support.

I know that Phuong has been to Vietnam to visit Ut in 2014 and 2016. When she goes to Vietnam she lives with Ut.

When Phuong goes to Vietnam I prepare some gifts for Ut's parents and she will also come back from Vietnam with gifts for us from Ut's parents.

I have given them Ointments and they have given us dried fish as gifts.

One of Phuong's trips to Vietnam was to complete the paperwork for the partner visa application for Ut.

I think that Phuong and Ut have done a lot in the past three years so that Ut can live in Australia as one family with her and her children.

They have been waiting to live with each other since they got married.

I believe that their persistence over the years and the stress they have gone through so that Ut can live in Australia shows that they are in a genuine and continuing relationship with each other.

Ut is Phuong's husband and my son-in-law. I recognise his relationship with my daughter and treat him like my own son.

48    Plainly, it is not correct to describe these statements as not setting out any reasons why each of the deponents consider the relationship to be genuine. Nor is it correct to describe the Tribunal's reasons 'as a whole' as considering and not accepting the reasons advanced as to the genuineness of the relationship.

49    This is not an instance where an issue arises as to whether the failure to refer to a matter supports a conclusion that the Tribunal has rejected that matter. Here the Tribunal has approached the matter on the erroneous basis that there are no reasons advanced by a number of family members to support their view that the relationship between Ms Nguyen and Mr Huynh is genuine when that is not the case. The consequence is that evidence that bears upon a substantial and clearly articulated argument about the genuineness of their relationship (being a matter of importance to the application that would be expected to be addressed) has not been considered and the Tribunal has thereby manifested a failure to discharge the statutory obligation to consider the application. The primary judge was in error in not so finding.

Ground 3: Nature of the commitment

50    One of the matters to which the Tribunal was required to give proper, genuine and realistic consideration by an active intellectual process as stated in He was the nature of the parties' commitment to each other: reg 1.15A(3)(d) (quoted above).

51    It was said that the Tribunal overlooked and failed to consider evidence concerning the parties' regular communication over the internet, including by Skype, and as a result the Tribunal failed to undertake the type of consideration that was required.

52    However, the Tribunal considered the nature of the commitment at some length (commencing at para 38). In the course of doing so, the Tribunal dealt with the following aspects of the material concerning communications between Ms Nguyen and Mr Huynh:

(1)    recounted that the parties met in 2013 and that they maintained contact by telephone and that Mr Huynh proposed over the telephone (para 38);

(2)    dealt with evidence in the form of Optus accounts that had been presented to support the claim of regular communication between the parties (and in the course of doing so noted the submission that due to the expense of telephone calls they communicated regularly by other means through a computer, such as Skype) (para 39);

(3)    noted that 'the only evidence of their regular communication provided was copies of telephone accounts and this does not indicate any meaningful conversations between the parties, especially as the majority of the calls are for very short periods' (para 39);

(4)    considered the evidence of Ms Nguyen that she speaks with Mr Huynh daily (para 40);

(5)    considered the evidence of Mr Huynh that they miss and care for each other and call each other every day (para 42); and

(6)    made a finding that 'the parties know each other personally, have spent time together and communicate with each other on a regular basis' (para 45).

53    In those circumstances, the appellant has not established that the Tribunal did not consider the evidence and submissions concerning the parties' communications by computer. For reasons I have given it was not necessary for the Tribunal to recount the detail of all the evidence. This is an instance where the Tribunal may be taken to have rejected other evidence. It has referred to the evidence upon which it relies in making the findings concerning communications. In any event, in the result, the Tribunal has not accepted that there were long telephone calls but has accepted that the parties communicate with each other on a regular basis. The claim made was addressed. Once the reasons of the Tribunal are considered, it is apparent that the ground is no more than a complaint about a factual finding by the Tribunal after considering the evidence. The ground has not been made out.

Ground 4: Joint liabilities

54    The final ground concerns reg 1.15A(3)(a)(ii) and (iv). They provide that as to financial aspects of the relationship, the Tribunal is to consider 'any joint liabilities' and 'whether one person in the relationship owes any legal obligation in respect of the other'.

55    It is said that the Tribunal did not properly consider evidence that Ms Nguyen and Mr Huynh borrowed money to travel to Vietnam from Mr Huynh's brother which was said to be relevant to the above matters.

56    As to the financial aspects of the relationship, the Tribunal:

(1)    referred to evidence that Ms Nguyen had sent money to Mr Huynh on seven different occasions (para 10);

(2)    recounted the evidence from Ms Nguyen that Mr Huynh's brother had assisted financially with travel to Vietnam (para 12);

(3)    stated, as to the above evidence, that while it was a factor to be considered, 'the transfer of funds alone does not indicate a mutual commitment or a genuine relationship' (para 13); and

(4)    concluded that as the parties live in two separate countries and both have limited incomes which constrains pooling of resources and sharing of expenses 'the Tribunal gives this factor little weight' (para 15).

57    The submission made reduced to a complaint that there was no awareness by the Tribunal about the fact that the monies provided by Mr Huynh's brother were a joint liability or legal obligation. This is to read the reasons with undue technicality. The Tribunal referred to the loan. It referred to the Mr Huynh's brother having assisted them both. The financial matters advanced were considered. Even if it were accepted that the Tribunal proceeded on the basis that there was no joint liability, that would be a factual finding within jurisdiction. The Tribunal has considered the matters relied upon and made a finding directed to the particular evidence. The matters raised do not demonstrate jurisdictional error. The primary judge was correct to so find.

Conclusion

58    The appellant has been successful in making out ground 2. The other grounds have not been established. No issue was raised about the materiality of the alleged errors. Therefore, the appeal should be allowed and the orders of the primary judge set aside and in lieu thereof it should be ordered that the matter be remitted to the Tribunal for determination according to law. As to costs, the appeal has been successful. The oral hearing was not long. It could not be said that there was substantial additional time taken in dealing with the grounds on which the appellant has not been successful. The submissions for the Minister on the grounds that have been successful did not engage with the issues in any way. In all the circumstances, it appears that the appropriate order is that the Minister should pay the costs of the appeal and of the proceedings in the Federal Circuit Court. However, I will reserve liberty to the Minister to apply to vary the costs orders within 10 days. If an application is made I will make directions for the application to be dealt with on the papers.

Associate:

Dated:    14 June 2019