FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Home Affairs [2019] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant, Mr Nguyen, appeals from the decision of the Federal Circuit Court of Australia (FCC) of 6 December 2018 in which an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) of 16 April 2018 was dismissed. The appellant had sought review from the Tribunal of the decision of a delegate of the Minister for Immigration made on 13 December 2016 to refuse him a Partner (Temporary) (Class UK) visa pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

The facts

2    The appellant is a Vietnamese national who was born in Vietnam in 1991. He was 27 years old at the date of the Tribunal’s decision. He arrived in Australia on 4 March 2013 on a Student (Sub-Class 573) visa. He had commenced a degree in sports management but abandoned it after one semester. He claimed that he had failed a lot of subjects and he needed to work.

3    He lodged an application for a partner visa on 21 May 2015 and was granted a Bridging Visa C with work rights in association with the application. At the time of the review before the Tribunal he was working as a sheet metal worker.

4    The sponsor, Ms Tran, was born in Vietnam and first arrived in Australia in 1992 with her family. She obtained Australian citizenship in 1994. At the hearing before the Tribunal she indicated that she had two children, a son born in 2001 and a daughter born in 2005, both from a previous de facto relationship. At the time of the Tribunal hearing she was self-employed as the owner and manager of a bubble tea shop. The appellant and the sponsor claimed they first met on 17 March 2014 and that, at the time of the making of the partner visa application, they had committed to a shared life and had decided to live together on 25 August 2014. They participated in a Vietnamese wedding ceremony and reception on 10 December 2014 and married according to Australian marriage law in a civil ceremony at the sponsor’s house on 1 January 2015.

The Tribunal’s decision

5    The central issue before the Tribunal was whether the appellant and the sponsor were in a “genuine spousal relationship”. After considering the general background facts and the terms of s 5F of the Act and reg 1.15A of the Migration Regulations 1994 (Cth) (the Regulations), which is set out below, the Tribunal turned its attention to each of the matters raised by that regulation. The manner in which it considered each of these is discussed below where relevant. However, it is important to observe that the Tribunal disbelieved Mr Nguyen in relation to the evidence he gave. It found that:

(a)    the goals which the appellant and his spouse said they had were fabricated for the purposes of the visa application (Tribunal’s reasons at [24]);

(b)    the appellant was evasive and opaque when responding to questions about his financial situation and arrangements (at [25]);

(c)    statutory declarations and photos given by the appellant to the Tribunal were not, in themselves, convincing evidence that the parties were in a genuine spousal relationship (at [33]);

(d)    the parties’ claim that they intended to have children in the future was unconvincing (at [37]);

(e)    the evidence given by the appellant and his sponsor contained discrepancies (at [39]); and

(f)    based on the lack of credibility of the parties and the discrepancies in the evidence, the alleged relationship was contrived (at [41]).

6    It is also apparent that the Tribunal disbelieved the evidence of Ms Tran.

7    Overall, the Tribunal was conscious that much of the evidence adduced by the appellant was manufactured for the purposes of the visa application. Reference was made in the reasons (at [21]) to a wide variety of receipts for small and somewhat insignificant purchases which were made out to both the appellant and his sponsor. They included receipts for small donations to charities, meals and small purchases. The sponsor stated that the receipts were obtained and kept for the purposes of the visa application on the advice of their migration agent. A similar lack of credibility arose in relation to several photographs which were provided to the Tribunal. Again, it was acknowledged that these were created for the purpose of the visa application.

8    The general conclusion of the Tribunal can be seen in paragraphs [41]-[42] of its reasons:

41.     As noted above, the parties acknowledged during the hearing that their evidence of photos and receipts for everyday expenses, was organised with the purpose of applying for the visa, or review of the Delegate’s decision, in mind. The discrepancies in the information and evidence provided by the parties, and their acknowledgement that much of the evidence was organised for the purpose of the application and review, contributed to the Tribunal forming the view that the relationship was contrived for the purpose of obtaining a visa.

42.     Having considered the evidence and r.1.15A(3) matters, and the circumstances of the parties, as discussed above, the Tribunal is not satisfied that the parties have a mutual commitment to shared life to the exclusion of others. The Tribunal is not satisfied that they are in a genuine and continuing relationship.

9    The reason for considering the overarching approach of the Tribunal becomes apparent from the discussion below.

Grounds of appeal

10    The relevant grounds of appeal to this Court were identified in the appellant’s submissions as follows:

Ground 3: The learned judge erred by not finding that the AAT misinterpreted and/or misapplied Reg 1.15A of the Migration Regulations 1994 and/or did not properly apply the principles in He v Minister for Immigration and Border Protection [2017] FCAFC 206.

Ground 4: The learned Federal Circuit Court judge erred by not finding the AAT failed to properly conduct a review for the purpose of implementing Part 5 and/or ss 348 and 349 of the Migration Act 1958.

Ground 5: The learned Federal Circuit Court judge erred by not finding the AAT made the type of jurisdictional error identified in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69].

Ground 6: The learned Federal Circuit Court judge erred by not finding that the AAT provided inadequate reasons through its failure to apply the principles setout [sic] in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

Ground 7: The learned Federal Circuit Court judge erred by not finding that the AAT’s decision was unreasonable.

11    Counsel for the appellant asserted that the grounds overlapped and, in his oral and written submissions, did not attempt to compartmentalise the arguments relating to each specific ground. Instead, general submissions were made of a vague and scatter-gun nature relating to the Tribunal’s consideration of certain aspects of the parties’ relationship. Some other matters were only lightly touched upon. Counsel for the Minister correctly criticised the “bundled up” approach adopted in the appellant’s submissions and, in particular, the failure to identify any alleged error in the reasons of the primary judge. Those criticisms were well made. It is incumbent on an appellant before this Court to articulate the arguments in support of each ground of appeal individually and in a way which exposes the alleged error in the reasons below. It is insufficient to merely argue generally about perceived deficiencies in the reasons below (or indeed the reasons of the Tribunal) and invite the Court to identify the relevant error.

12    A question arose as to whether grounds 5 and 6 had been agitated before the learned primary judge. Whilst the grounds in the application for review to that Court did not expressly identify them, it seems that they were agitated in a fashion in submissions. Ms Wheatley for the Minister helpfully directed the Court to the relevant authorities on raising new issues on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]; Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90]; Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 per Griffith and Perry JJ at [19]-[20]; and AVH17 v Minister for Immigration and Border Protection [2019] FCA 122 at [26]-[35]; but she, very properly, accepted that the “new” issues did not cause the Minister any prejudice in that they did not require the introduction of additional evidence. In the circumstances, it is appropriate to consider them in these reasons.

Relevant legislative provisions

13    Clauses 820.211(2)(a) and 820.221 of the Regulations require that, at the time of the making of the visa application and the time of the decision, the applicant for a partner visa is the spouse or de facto partner of an Australian citizen. The expression “spouse” is defined in s 5F of the Act as follows:

(1)    … 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 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 and apart on a permanent basis.

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

14    In fact, regulations have been made for the purposes of subsection (2) and they appear in reg 1.15A as follows:

1.15A Spouse

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

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

…

(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).

The decision in He v Minister for Immigration and Border Protection

15    In the resolution of this appeal, the decision of the Full Court in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (He) assumes some significance. The appellant submitted that in applying reg 1.15A the Tribunal was bound by what was said in He at paragraph [76], where the Court said:

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.

16    That paragraph was a cornerstone of the appellant’s submissions which repeatedly asserted the Tribunal failed to make sufficient findings in relation to all of the matters in subreg 1.15A(3)(a)-(d).

17    However, the passage cited by the appellant from He does not reveal the true nature of the obligations of a decision-maker in the application of reg 1.15A. In that case the Minister had submitted that the decision-maker was not obliged to make findings in relation to each matter but was only required to “give proper, genuine and realistic consideration” to each of the issues. The Court (Siopis, Kerr and Rangiah JJ) held as follows:

(a)    The overriding question is whether the persons meet the definition of “spouse” in s 5F and that requires the decision-maker to be satisfied the parties are in a “married relationship” which, in turn requires it to be satisfied as to the existence of the four matters in s 5F(2).

(b)    Regulation 1.15A(2) requires the decision-maker, when considering whether s 5F(2) is satisfied, to consider all of the circumstances of the case including those set out in subreg 1.15A(3): [48].

(c)    In that process the decision-maker must consider each of the 15 specific matters and each of the “principal matters” (being reg 1.15A(3)(a)-(d)) and any other relevant circumstances of the relationship: [49]-[50].

(d)    Section 5F gives the word “spouse” a narrower meaning than its ordinary meaning and the definition is designed “principally to avoid sham or contrived marriages being used to obtain the grant of visas”: [51].

(e)    The conditions in s 5F that the parties have a mutual commitment to a shared life and the relationship is genuine and continuing are necessarily impressionistic: [51].

(f)    Although the circumstances of marriages are variable, the presence or absence of any one of the particular circumstances in reg 1.15A(3) does not mean that the marriage is not genuine, but those circumstances are particularly important or relevant to ascertaining whether the marriages satisfy s 5F(2): [51].

(g)    Necessarily, the matters in reg 1.15A(3) are “relevant considerations” which any decision-maker is bound to take into account in the sense that they must think about each such matter, give each a “proper, genuine and realistic consideration” which necessarily entails an “active intellectual process”: [52].

(h)    The requirement of the decision-maker to “consider” the matters in reg 1.15A(3) is prescriptive and requires the Tribunal to, at least, “apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances”: [73].

(i)    The structure of the regulation means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals which pose questions for the decision-maker so as to ensure they are taken into account and given proper, genuine and realistic consideration. The matters must be “answered” so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”: [76].

(j)    In some cases the answer may be that there is no material or insufficient material to be able to form a conclusion on a prescribed matter, but there must be a finding even if it is that no conclusion can be reached: [76].

(k)    The “principal matters” (being reg 1.15A(3)(a)-(d)) also pose questions that must be answered and the decision-maker must make findings upon them but, “[i]n many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters.”: [77].

(l)    Whilst there is a distinction between the making of a decision and the written statement of it given under s 368 of the Act, the reasons provide evidence of the mental process engaged in. That being so, if the written statement does not set out a finding concerning any of the prescribed matters of reg 1.15A(3) given 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.” If no such finding was made the Tribunal will not have complied with reg 1.15A(2): [79].

(m)    In considering whether a Tribunal had taken a specific matter into account or when drawing implications from the reasons, it is apt to keep in mind the impressionistic and evaluative nature of the Tribunal’s task and that the reasons are not to be construed minutely and finely with an eye attuned to the perception of error: [82].

(n)    When considering the circumstances of the particular case, the Court is entitled to draw inferences from the conclusions of the Tribunal as to the findings which were made in relation to each of the specific matters in reg 1.15A(3). There did not have to be any express statement as to the finding so long as it was implicit from the conclusions actually made.

18    It is not entirely clear what are the “questions” which are posed by each of matters ascribed a Roman numeral in reg 1.15A(3). Many of the issues identified are open ended and neither ask a specific question nor identify a matter requiring a response. The matter in (3)(b)(ii) “living arrangements of the persons” is a good example. No question is actually raised in relation to that issue. The matter would seem to be one which is responded to by identifying the circumstances of the living arrangements as that appears from the evidence save, perhaps, that it must be identified that there are living arrangements. Nevertheless, it is apparent that some form of conclusion must be made in relation to each matter. That said, the conclusion does not need to be express and may well be implicit and, in ascertaining whether an implicit finding was made, it is appropriate to take into account that the process is somewhat impressionistic and evaluative in nature.

19    As the correctness or otherwise of the decision in He was not argued, it is not necessary to postulate any view even if it were possible to ascertain exactly what it is that a decision-maker is required to do in the application of reg 1.15A(3). The decision is binding and must be applied to the circumstances of the present case.

The first issue – considering all of the circumstances of the relationship

20    The major ground of appeal, orally articulated, was that the Tribunal failed to consider all of the relevant circumstances of the relationship. It seemed to be suggested that the Tribunal specifically turned its mind to the enumerated matters in reg 1.15A(3) but did not consider the circumstances of the marriage more generally. The argument, as advanced, was that the Tribunal should adopt the same approach as would a court exercising the family law jurisdiction of the Commonwealth such that a more general consideration of the concept of “genuine spousal relationship” should occur rather than focusing on the matters enumerated in reg 1.15A. In that way, so the argument went, the Tribunal should take into account the meaning of the concepts of “spouse” and “marriage” as they are used in the Family Law Act 1975 (Cth) (Family Law Act). In support of this argument Mr Boccabella sought to rely upon the decision of Mushin J in Moby v Schulter [2010] Fam CA 748 and in particular the concept of de facto relationships. He sought to draw upon the integers of the definition of “de facto” in s 4AA of the Family Law Act as being applicable to the consideration by the Tribunal under reg 1.15A. It is not entirely clear why those matters would be relevant to the interpretation of the regulation in this case. That is particularly so in the present case where the appellant relies upon his actual marriage to the sponsor as the foundation of his claim. Whilst consideration of analogous concepts may, on occasion, be of assistance, it is difficult to identify in this case how that might be so.

21    Counsel for the Minister correctly identified that the definition of “spouse” in the Act is used in a more narrow sense than the ordinary concept. In He, the Full Court said:

[51] Section 5F of the Act gives the word “spouse” a narrower definition than its ordinary meaning by imposing the four conditions that are required to be satisfied. The definition seems designed principally to avoid sham or contrived marriages being used to obtain the grant of visas. The conditions that the persons must have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship be genuine and continuing are impressionistic and evaluative: Ally v Minister for Immigration and Citizenship [2008] FCAFC 49 at [40]. The requirement of reg 1.15A(2) that the Minister must consider all the circumstances of the relationship recognises that the nature of marital relationships is infinitely varied and incapable of being fully described. The presence or absence of any particular circumstance in a marriage does not necessarily mean that the marriage is or is not genuine. However, reg 1.15A(3) sets out particular circumstances that the Minister is required to consider, presumably on the basis that these circumstances are considered to be of particular relevance or significance to determining whether a marriage satisfies the conditions set out in s 5F(2) of the Act.

22    The matter before the Tribunal concerned the decision to refuse to grant a visa. In that process the Tribunal was required to consider the definition of “spouse” in s 5F which required consideration of the matters in reg 1.15A specifically provided for that purpose. Those matters are directed to ensuring the exclusion of sham or contrived marriages from the class of arrangements which will establish a spousal relationship between persons for the purposes of the Act. That being so the Tribunal was correct not to travel beyond the statutory definition of “spouse” in reg 1.15A in an attempt to extend its boundaries beyond that set by the legislature. There was no error in it not considering the concepts of de facto relationships from the Family Law Act.

23    Whilst it is true that in reg 1.15A(2)(d) the decision-maker is obliged to consider all of the circumstances of the relationship, it is not, as Mr Boccabella for the appellant submitted, obliged to undertake an inquiry beyond the case which is advanced to it or which necessarily arises on the material adduced. Mr Boccabella submitted the Tribunal was obliged, in the fulfilment of its inquisitorial function, to independently identify and investigate aspects of the relationship which suggest a genuine marriage even if they are not advanced by the applicant. No authority was cited for that proposition. Whilst the Tribunal is obliged to conduct a “review” of the delegate’s decision and consider the case advanced by the applicant on the material before it, there is no authority which suggests it is bound to investigate a case which is not advanced or clearly raised. Indeed, such a submission is contrary to the received position that “the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)), [61].

Financial aspects of the relationship (reg 1.15A(3)(a))

24    The appellant submitted that the Tribunal did not consider the whole of the relationship of the appellant and the sponsor and failed to properly consider the financial aspects of the relationship because it did not take into account the rights and obligations which would have arisen between the parties in equity or by virtue of the Family Law Act or the Succession Act 1981 (Qld). Just what those rights and obligations were was not adequately explained by the appellant.

25    At [18] to [26] of the Tribunal’s reasons, under the heading “Financial aspects of the relationship”, the Tribunal considered the evidence which the appellant advanced to it in relation to this topic. It considered that, in large part, each party had maintained their own separate financial arrangements notwithstanding the existence of an account which was in their joint names. The Tribunal considered that the existence of that joint account was of little moment given that it was not utilised greatly. After an analysis of the operation of the account over a significant period, it determined that it did not indicate any pooling of assets. The Tribunal also found the conclusion that the claimed joint goals of the appellants were fabricated was open to it on the material. It considered the evidence in relation to the joint bank statements, household expenditure and whether there was a pooling of financial resources. It concluded the evidence advanced by the appellant as to the alleged joint finances which he had with Ms Tran was contrived.

Interests arising under the Family Law Act or in equity

26    The appellant submitted that the Tribunal’s finding that the parties had no joint assets was inconsistent with the operation of the provisions of the Family Law Act and with the equitable rights and obligations which would have existed between the parties. It was suggested that the circumstances derived from the evidence before the Tribunal were such that Mr Nguyen had an equitable interest in the property of the matrimonial home or that he had an interest in it by reason of the Family Law Act. This, it was said, arose from the fact that Mr Nguyen and Ms Tran lived in her house and, whilst she paid the mortgage, he used his wages for their joint living expenses.

27    In support of this submission Mr Boccabella relied on the decision of the High Court in Thorne v Kennedy (2017) 263 CLR 85. However, that decision concerned the consequences of unconscionable conduct or undue influence on a person under a special disadvantage, the effect of which was to vitiate a pre-nuptial agreement entered into shortly prior to a wedding. The relevance of this case to the circumstances before the Tribunal was not made especially clear. It was accepted that there was no undue influence or duress. Reference was made to paragraph [74] of the reasons of Nettle J where it was said:

The equitable doctrine of unconscionable conduct is not restricted to unlawful means. Equity may intervene to relieve against the consequences of a party taking unconscientious advantage of another party’s position of special disadvantage regardless of whether the conduct is otherwise lawful. And while this case might better be conceived of as one involving illegitimate pressure, it is also capable of resolution in terms of Mr Kennedy having taken unconscientious advantage of Ms Thorne’s position of special disadvantage.  In effect, it was a position of special disadvantage which he created by bringing her to this country, keeping her here for many months in a state of belief that he would marry her, allowing preparations for the wedding to proceed, and only then, when she had ceased for all practical purposes to have any other option, subjecting her to the pressure of refusing to marry her unless she agreed to the terms of the first agreement.  It was thus also a position of special disadvantage of which Mr Kennedy was aware, or at least of which a reasonable person in his position would have conceived as a real possibility. (footnotes omitted)

28    Mr Boccabella submitted that the appellant was under a special disadvantage because he was in Australia on a student visa and because he contributed to the household expenses. However, being in Australia on a student visa is not something which puts a person under a special disadvantage vis-à-vis another person with whom they might have a relationship. Certainly, it does not put them in such a position in relation to the acquisition of interests in land acquired in a personal relationship. No circumstances were identified to suggest otherwise. The argument must fail for that reason alone. Moreover, none of this was suggested to the Tribunal as being pertinent or germane to the alleged spousal relationship and nor did the suggestion of the appellant having an equitable interest in the property where he resided necessarily arise from the circumstances of the case. Whether the special disadvantage exists is a matter which arises in all the circumstances of the particular case. Without that issue being raised, it is apparent that all relevant circumstances which are germane to it were not considered or investigated by the Tribunal. It is not possible, after the Tribunal has performed its task, to suggest some additional claim or integer of a claim, not previously mentioned or advanced, was relevant and then complain that it was not considered. The scope of the obligation of a Tribunal in considering an application was identified in NABE at [62] and [68]. The Tribunal must deal with every integer of a claim which is expressly advanced and, although it is not obliged to consider a case not made to it, it is required to deal with a claim that clearly arises or emerges from the material before it. Although NABE (No 2) concerned applications for protection visas, the same principle applies to other applications. Here, the suggestion that Mr Nguyen had an equitable interest in the land was not raised and did not clearly arise or emerge.

29    It might also be observed that the evidence before the Tribunal was to the effect that Ms Tran considered that the house where Mr Nguyen and she resided was hers. The appellant was present in the Tribunal when that evidence was given and there was no demur from him to that assertion.

30    It was also submitted by Ms Wheatley for the Minister that the existence of a constructive trust would be suggestive of the relationship having broken down and Ms Tran unconscientiously denying Mr Nguyen’s alleged interest. Here, the appellant’s claim was that the relationship was ongoing. That being so, on the assumption that the imposition of a constructive trust of this nature is remedial rather than institutional, it is right that no equitable interest in the residence could have arisen at this point in time.

31    It appeared that the appellant’s submissions may have been directed to identifying the existence of a constructive trust of the type recognised in Baumgartner v Baumgartner (1987) 164 CLR 137. That case concerned the identification of a constructive trust over the property of persons who lived in a de facto marriage relationship on the basis that it would be unconscionable to allow one party to assert sole title to a family home. The circumstances of this case, as they appear from the evidence, do not come close to those which might give rise to the recognition of a constructive trust of that nature. There was no suggestion that the parties were engaged in a joint endeavour to make the home of the sponsor their joint home. Indeed, the financial circumstances of the parties suggested that the sponsor intended to keep her property separate. It may well have been that they intended to purchase a house together in the future but, as the parties themselves acknowledge, no steps were taken towards that goal.

32    The suggestion that the appellant had an interest in Ms Tran’s house by reason of the Family Law Act was equally vague. No particular sections of that Act were referred to and how the alleged interest arose was not explained. Whilst it may be that, if the parties were separating, an order of the Family Court could be made requiring one to pay money to the other or to transfer specific property, there was no suggestion that the circumstances for the making of such an order existed in this case. Certainly, none were suggested to the Tribunal and, as the issue was not raised, there was no investigation of whether such circumstances existed. Whether, if the parties divorced, the Family Court would give Mr Nguyen any right in relation to the residence, even though it was paid for by Ms Tran who has a daughter to support, is a matter of speculation. Again, there is nothing to suggest that at the time of the Tribunal’s decision the appellant had an interest in Ms Tran’s home by reason of the operation of the Family Law Act.

33    It follows that the Tribunal committed no error by failing to take into account the alleged interest which it is now said Mr Nguyen claims he has in Ms Tran’s home.

The existence of joint liabilities

34    Albeit somewhat opaque, it is apparent that the appellant sought to weave his submission about his equitable or statutory rights in Ms Tran’s home into an allegation that the Tribunal did not take into account the joint responsibilities and resources of Ms Tran and himself. It seemed to be suggested that his right to an interest in Ms Tran’s home was within the concept of a “joint liability” and this was ignored by the Tribunal. However, as the Minister submitted, “Regulation 1.15A is not directed towards any potential claims or liabilities between the spouses but liabilities that the two married persons owe, together, jointly, to others.” In this matter there is no suggestion that Mr Nguyen was jointly liable with Ms Tran for any mortgage repayments or other expenses in connection with the house. It follows that there is no substance in the appellant’s submission in this respect.

35    It was also not suggested that Mr Nguyen and Ms Tran had assumed any joint liabilities to third parties which the Tribunal failed to take into account.

Whether one person in the relationship owes any legal obligation “in respect of the other”

36    Similarly, it was submitted that the Tribunal failed to take into account Mr Nguyen’s claimed interest in Ms Tran’s home when considering the criterion of whether one party to the relationship owes any legal obligation in respect of the other. This submission seems to be founded upon the implication that the criterion in reg 1.15A(3)(a)(iv) requires the decision-maker to take into account obligations owed by one of the parties to the relationship to the other. Again, the Minister submitted that the regulation is one directed to ascertaining whether the putative parties are in a genuine spousal relationship and, to that extent, it is not concerned whether they owe obligations inter se, but whether, as against third parties, they are jointly liable or severally liable in respect of the same obligation. There is force in the Minister’s submission as reg 1.15A(3)(a)(iv) refers to “whether one person in the relationship owes any legal obligation in respect of the other”, and the submission should be accepted.

37    The matters in reg 1.15A(3) are directed towards ascertaining whether there is any genuine spousal relationship. Needless to say if, in a relationship, one party assumed responsibilities for the liabilities of the other it could be discerned that there existed a commitment to an ongoing relationship. That would be because the person assuming the obligation owed by the other, evinces a dedication to support them in their financial and other affairs into the future. As Ms Wheatley for the Minister submitted, one party to an alleged relationship guaranteeing the liabilities of the other would be an exemplar of the subject matter of this criterion. On the other hand, the suggestion that one party owed obligations to the other would actually tell against the existence of a genuine spousal relationship as it would indicate that the parties keep their interests separate and distinct rather than mixed and unified.

38    In the matter before the Tribunal there was no suggestion that either Mr Nguyen or Ms Tran assumed responsibility to a third party for the obligations of the other. Even if reg 1.15A(3)(a)(iv) ought to be read as suggested by the appellant, it would not assist as there is nothing to suggest that Ms Tran owed any obligations to Mr Nguyen in any event. More importantly, such a claim was not raised before the Tribunal and nor did it clearly arise from the material.

Pooling of financial resources

39    Mr Nguyen also submitted that the Tribunal did not take into account the reduction of the amount owing on Ms Tran’s mortgage on her home as a being savings which the parties were making jointly. This, he said, was a matter which the Tribunal was required to consider under reg 1.15A(3)(a)(iii) which refers to the “pooling of financial resources”.

40    However, the fact that Ms Tran was meeting the mortgage payments on her mortgage over her house did not reveal any pooling of financial resources. The house belonged to her and, to the extent to which she discharged the mortgage, she increased her equity in it. Mr Nguyen had no interest in it and it was not suggested otherwise to the Tribunal.

41    In any event, the Tribunal considered the financial aspects of the relationship between the appellant and Ms Tran in paragraphs [18] to [26] of its reasons and it made findings in relation to that issue in paragraphs [26], [29] and [36]. In doing so it considered the statements of the bank accounts supplied by the parties. It noted that Ms Tran maintained her financial arrangements, being her personal and business accounts, separate from the appellant’s. It considered the evidence of a joint account in both of their names but noted that relatively small amounts of money were deposited into it and withdrawn from it. It found (at paragraph [19]):

19.    Statements provided to the Tribunal showed that the applicant’s salary, but not the sponsor’s earnings, was deposited into the joint account in 2017. They show a number of small, one-person type transactions, for meals and petrol, near the applicant’s work-place. They also show a few supermarket purchases. At hearing the applicant confirmed that he used the account, and that the sponsor had her own personal and business accounts, in another bank. The sponsor confirmed that she made the mortgage payments for her house, and paid rates and utilities bills, from her accounts. The sponsor stated that she used her own account for household shopping, but that she also used the joint account, sometimes, for grocery shopping.

From this it is clear that the Tribunal considered the issue of whether there was a pooling of financial resources and it was open for it to determine that it did not occur.

42    The appellant submitted that the Tribunal also failed to properly consider the evidence relating to the question of the pooling of financial assets. It was submitted that it made an error in its conclusions as expressed in paragraph 24 of the reasons:

24.     The Tribunal acknowledges that the applicant is younger than the sponsor and that he has had full-time work rights only for a few years. The Tribunal however finds the fact that the parties have made no progress towards their self-declared goal of purchasing a house together, and the applicant has made no progress towards his self-declared goal of supporting the sponsor financially while she has more children (discussed below), to indicate that these goals were fabricated for the purpose of the visa application.

43    It was submitted that the Tribunal failed to take into account the actual evidence of the bank statement which showed that, as at 8 December 2017, the balance stood at $4,526.61. It was said that the balance demonstrated, with respect to persons who were on low wages, that they had made significant savings towards their shared goals such that the Tribunal’s findings on this matter failed to consider relevant evidence or a relevant consideration or was in some way illogical.

44    The difficulty with this submission is that it is not consistent with the evidence before the Tribunal. As is recorded in the reasons (at [23]), “The parties confirmed at hearing that they have no significant joint assets or joint loans.” Ms Tran had acknowledged, during the course of the hearing, that the parties had made no savings towards their common goal of acquiring a house. There was no demur from Mr Nguyen to that evidence. Further, Mr Nguyen said in evidence that the money in the joint account was used for day-to-day expenses. He did not say that it was his savings for the purposes of advancing their stated goals.

45    The Tribunal considered the evidence in relation to reg 1.15A(3)(a)(iii) and it made findings on that evidence in relation to that matter. To that extent it satisfied its obligations as identified in He.

46    The above discussion disposes of the suggestion that there was no probative evidence to support the Tribunal’s conclusions as to the lack of savings. The probative evidence on which the Tribunal was entitled to rely was Ms Tran’s admission that they had not made savings and not moved into a larger house.

47    The appellant’s submission that the findings of fact are unreasonable or are illogical cannot be sustained. As was recorded by the Tribunal in its reasons, the parties accepted they had not made any savings towards their goals. It would be an extraordinary thing for the Tribunal to consider the balance in the joint account and reach an opposite conclusion. Indeed, if the goal is to purchase a house together, the sum of $4,526.61 cannot be seen as any serious step in that direction. Mr Boccabella made much of the fact that Mr Nguyen was on very low wages, he being an unskilled worker, such that the accumulation of $4,526.61 was a significant sum. However, whether he was earning high or low wages, that amount remained trifling in relation to the alleged goal of the parties purchasing a house together. It rather suggests that the alleged goal was completely unrealistic, even if it were genuine.

48    It might also be observed that the account used by the appellant did not have the appearance of a savings account. Indeed, in the period from 6 October 2017 to 8 December 2017, the balance had been in steady decline. Although the appellant had his wages deposited to the account, he generally withdrew more than he deposited.

49    The Tribunal was entitled to accept the evidence of the parties that they had not made any relevant savings and no jurisdictional error arises from its finding to the same effect.

The asking of a double-barrelled question

50    The appellant claims that the hearing before the Tribunal was not conducted fairly and justly in accordance with s 357A(3) because the sponsor, Ms Tran, was asked a double-barrelled question in relation to the financial circumstances of the relationship. The relevant passage is as follows:

M:    Okay. Now, you state in that declaration that’s 2015, that’s three years ago, your statement. You don’t have any assets together but you’re saving, you want to move into a bigger house together. Can you tell me what’s happened with that?

T:    We plan to work and we save so – so, um, first is that I can stay at home, yeah, um, so we can carry baby, yeah, for and then we – we will be – start saving and move to a bigger place.

M:    But you haven’t made any savings yet and haven’t moved into a bigger place?

T:    No, we haven’t.

M:    So you – can you tell me where you are living at the moment?

T:    [address concealed]

M:    Now, is that house owned by you? Is that your house?

T:    Yeah, the house owned by me.

51    The complaint is in respect of the question “But you haven’t made any savings yet and haven’t moved into a bigger place?”. It was submitted that the answer gave rise to the Tribunal’s conclusion that the parties had made no savings towards the goal of purchasing a new house but that the questioning which led to the answer was “unfair” and as such the Tribunal contravened s 357A(3) by failing to act in a way that is “fair and just”. However, the asking of the question was not the source of any unfairness in the circumstances of this case. The question was directed to the related goals of saving money and buying a larger house and, in substance, was to the effect that neither had been advanced. That was accepted by Ms Tran. A perusal of the transcript reveals that Ms Tran was perfectly able to deal with questions put to her and, had she wished to indicate that she and the appellant had amassed joint savings to be used for the purchase of a new house, she could easily have said so. The fact that she did not say anything is indicative. It should also be kept in mind that Mr Nguyen was present at the time and he made no comment.

52    It is also to be kept in mind that Mr Nguyen attended the hearing with his solicitor, Mr Hearn. Mr Hearn made no objection to the question or indicated that he believed it to be unfairly put. He subsequently admitted that the parties “have not been able to save any money” (AB 600), but he gave the reason as being that they did not have significant incomes. Whilst the explanation may be true, the fact that the appellant’s solicitor admitted that no money was saved tends to support the Tribunal’s conclusion. The presence of the solicitor is also a good answer to the suggestion that the asking of questions of Ms Tran was unfair. The transcript reveals that the solicitor was involved in the hearing and, if he thought that Ms Tran did not have a fair opportunity to answer the question, he would have said something.

53    Whilst it should be accepted that in the conducting the review the Tribunal must act in a manner that is fair and just: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 362 [61]; and provide the applicant with a real opportunity to present her or his case, there was no unfairness in the manner in which the Tribunal asked the questions of Ms Tran. Whilst there may be cases where the manner in which a hearing is conducted will amount to a review not being conducted in a manner which is fair and just, it is most unlikely that the asking of double-barrelled questions would create that situation: Minister for Immigration and Border Protection v Aulakh (2018) 162 ALD 216; especially when the applicant’s solicitor is present. It is even less likely that asking one such question of a witness would do so.

54    Moreover, the Tribunal was entitled to evaluate the evidence as it was advanced to it. The Tribunal member saw the witness and was able to consider whether the answers given were responsive to the part or whole of the question. That is part of the evaluation process and, even if there were an error in understanding Ms Tran’s answer, which is most unlikely, it was not a jurisdictional one.

The payments of $2,000 into a joint account

55    The appellant next complains of the Tribunal’s finding at [20] of its reasons that:

20.    The Tribunal asked the applicant the source of large, semi-regular deposits, in the order of $2000, into the joint account, followed on the same or next day by cash withdrawals of similar amounts. …

56    It was complained that there were no actual deposits of $2,000 which appears to suggest that the conclusion concerning the deposits was misguided. The actual basis of the complaint by the appellant is not clear.

57    However, if anything, the question by the Tribunal evidences its careful analysis of the financial circumstances of the appellant. Moreover, it did not say that amounts of $2,000 were deposited. It said amounts “in the order of $2000” were deposited. That was a correct analysis. On 4 January 2017, two deposits were made totalling $2,120; and on 10 January 2017, two deposits were also made totalling precisely $2,000. On 4 September, a further sum of $2,380 was deposited.

58    Again, there was no unfairness in the questions asked or irrationality in the conclusions reached.

Mr Nguyen’s car

59    The appellant complains that there was no specific finding about Ms Tran providing a car to Mr Nguyen yet there was evidence before the Tribunal about that fact. Mr Boccabella submitted the making of this gift was a significant part of the relationship and the absence of any finding about it was important evidence relevant to the pooling of resources.

60    The difficulty here is that Ms Tran giving Mr Nguyen a car does not evidence “pooling” at all. Mr Nguyen’s evidence was that Ms Tran purchased a new car and he had been gifted her old one. To the extent to which it is relevant, the gifting of a car is not the pooling of assets. It is the transfer of ownership of the car from one person to another. Rather than evidence of the pooling of assets, it is evidence that the parties kept their own assets separate.

61    In the FCC the primary judge dealt with this matter by observing that in He it was held that the Tribunal was not required to refer to or make findings upon every piece of evidence and there was no error in the Tribunal not making a finding in relation to the issue of the car being driven by Mr Nguyen. Ms Wheatley submitted that all the Tribunal was required to do in relation to this matter was to make findings in relation to the matters enumerated under subreg 1.15A(3)(a), and subreg (3)(a) itself. It was submitted that findings of the nature required by the decision in He were made in relation to all such matters. Here that occurred and, specifically, findings were made that there was no pooling of assets or finances.

62    In any event, the Tribunal did make a finding in relation to the cars. It found that each of the parties had a car, which was an accurate conclusion from the evidence. That involved an acceptance of the evidence that Ms Tran made a gift of her old car to Mr Nguyen and suggests that the evidence was considered. Whilst the Tribunal seemed to erroneously believe that the cars were registered in the parties’ separate names, it appears that they were, in fact, only registered in Ms Tran’s name. That said, if the car had been given to Mr Nguyen as he claimed, the fact that registration had not been transferred was irrelevant. Title of motor vehicles is not determined by reference to the identity of the person to whom it is registered: see reg 48(1) of the Transport Operations (Road Management – Vehicle Registration) Regulation 2010 (Qld).

63    The more important issue, and that to which the evidence was directed, was whether the cars or Ms Tran’s new car were jointly owned. It had been asserted by the appellant’s migration agent and solicitor that the parties had been acquiring significant assets jointly and that the ownership of Ms Tran’s car was evidence of that as it had been insured in both parties’ names. Such joint insurance would indicate that each had an interest in the car. However, the evidence established that Ms Tran’s car was insured solely in her name and Mr Nguyen was only identified as an insured driver. As the evidence emerged it revealed that the parties had no significant joint assets.

64    Mr Boccabella also submitted that the failure of the Tribunal to make any finding about the gifting of the car indicated that it overlooked that piece of evidence. That submission was somewhat opportunistic in that the issue to which the evidence had been said to go was whether the parties had acquired assets jointly and not whether one made gifts to the other. In any event, even if there were an error it was not jurisdictional. The matter in question was the financial aspects of the relationship and, in particular, the extent of any pooling of assets. The evidence in question went to one aspect of the issue of the ownership of the cars used by the parties and, even if the evidence had been identified and accepted, in the context of the findings in relation to reg 1.15A(3) which were indicative that no genuine spousal relationship existed, there is no realistic possibility that a different conclusion would have been reached: Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599, 610 [38], 611 [45]-[46].

65    Here the Tribunal made findings on the matters which were required of it under reg 1.15A(3) and set out the material in some detail. It specifically made findings as to the pooling of financial resources in a manner which satisfied the requirements of the regulation. The primary judge did not err in failing to detect any jurisdictional error in this respect.

Finding as to evasiveness

66    The appellant submitted that the Tribunal’s finding at paragraph [25] of its reasons, that he was “evasive and opaque” when responding to questions about his financial situation and arrangements, was unsatisfactory. The observation had been made by the Tribunal in the context of assessing the financial aspects of the alleged relationship which involved a consideration of: the bank statements produced to the Tribunal; the manner in which those accounts were operated and by whom; the way in which the sponsor maintained her own accounts and property; and the failure of the parties to progress what was said to be their relationship goals. It concluded that it was not satisfied that the financial arrangements were consistent with the genuine spousal relationship. It further concluded the lengthy analysis of this issue in the following paragraphs which referenced the words of which complaint is made:

25.     The Tribunal found the applicant evasive and opaque when responding to questions about his financial situation and arrangements. The Tribunal notes that the sponsor has maintained her own financial arrangements, her personal and business accounts, separate from the applicant’s financial arrangements. The Tribunal acknowledges that the parties have a joint bank account and have made a large number of purchases in joint names, but gives this evidence little weight because the purchases were mostly small-scale and the evidence appears to have been contrived for the purpose of the visa application.

26.     On the evidence provided, the Tribunal is not satisfied that the parties have pooled their finances and shared day-to-day expenses commensurate with being in a genuine spousal relationship.

67    It can be assumed in the appellant’s favour that the observation that he was evasive and opaque when responding to questions was part of the reason for the non-satisfaction by the Tribunal that the parties had pooled their finances in some manner.

68    The submission made on behalf of the appellant was that there was no logical pathway of reasoning to reach the conclusion that the appellant’s evidence was “evasive and opaque”, and, so it seems, that resulted in a contravention of s 368(1) of the Act. In this respect the appellant relied upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) to the effect that the decision did not set out sufficient facts on which to make the finding of evasiveness. In oral submissions it was put that the Tribunal was required to identify the circumstances on which it relied and expose the analysis from which it concluded that Mr Nguyen was evasive and opaque. In making that submission Mr Boccabella for the appellant relied upon the observations of the plurality in Yusuf at 346 [68]-[69] where it was said in relation to the requirements of the Tribunal under s 430 of the Act:

In Singh, significance was attached to the use of the word “material” in s 430(1)(c). It was said that “material” in the expression “material questions of fact” must mean “objectively material”. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. (footnotes omitted)

69    Mr Boccabella also referred to the decision of the Full Court in Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522 where consideration was given to the manner in which a Tribunal is required to express a material finding of fact. In relation to the obligation of the Tribunal under s 368 it was said at 530-531 [32]:

It may also be finally noted that:

•    the requirement imposed by s 368(1)(c) of the Migration Act to make “findings on any material questions of fact” is not met by a statement as to an ultimate conclusion founded upon a series of primary facts without a statement as to what those primary fact [sic] are, those being the facts which are “material” to the conclusion reached; and

•    although there is no necessary difficulty with an administrative decision-maker making a statement such as that contained in para [55] that consideration has been given to “the evidence overall”, such a statement does not shield from scrutiny such consideration as was in fact given to the evidence and (in particular) evidence going to a centrally relevant submission. A statement that a Minister for example has “considered all relevant matters” and “all other evidence” may be said to fall short of an adequate reference to the evidence and falls short of putting a party in a position whereby they can “connect” in any meaningful manner the “findings” to the evidence (cf King v Minister for Immigration and Border Protection (2014) 142 ALD 305 at [37] per Flick J. See also: Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 at [22] per Flick J. It is “not only prudent but also desirable” to explicitly deal with such matters: 229 FCR 290 at [31] per Katzmann J. Wigney J agreed: 229 FCR 290 at [34]). It is necessary “to explain what evidence [the Tribunal] has accepted or rejected”: cf TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441; 218 ALR 85 at [50]-[53] per Sackville J. The reference in para [49] of the Tribunal’s reasons to the “web addresses” is, it is respectfully considered, not a sufficient reference to the evidence for the purposes of s 368(1)(d) of the Migration Act. That which is demanded by that provision is not a reference to the sources from which the evidence may be independently discerned. Rather, what is required is a reference to that part of the information to be apparently found at one or other (or possibly all) of the “web addresses” from which evidence may be found to base a finding made on a “material question of fact”. There remains no necessity to refer to every piece of evidence (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] per French, Sackville and Hely JJ), but there remains a necessity to refer to “the evidence” which founds facts “material” to a decision reached.

70    The appellant also relied upon the observations of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot). Whilst that decision specifically considered the obligations of the Accident Compensation Commissioner under s 68(2) of the Accident Compensation Act 1985 (Vic) when giving reasons, the general statement of principle is not entirely inapposite to the present case. There the Court identified the process through the application of which appropriate reasons for decision are produced by a tribunal. At 501 [54]-[55] the Court explained that the written reasons must be of such a nature that the party concerned and the Courts can ascertain whether the reasons are attended with jurisdictional error. Where the reasons are appropriately expressed “an error of law in forming the opinion, if made, will appear on the face of the written statement.” The Court also observed in relation to the statutory obligations that:

[55]     … 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.

71    The difficulty in the present case is that the appellant seeks to elevate the observations in the last cited paragraph to a rule which not only applies to the determination to be made but also to each and every finding or conclusion of fact in the course of the adjudicative process. That, of course, is not required.

72    In the terms of the reasons of the High Court in He, the Tribunal was required to make findings of fact in relation to each of the matters in reg 1.15A. These were the considerations relevant to its determination as to whether Mr Nguyen and Ms Tran were in a genuine married relationship. They were the “material questions of fact” as are referred to in Yusuf at [69]. Here, the Tribunal carefully explained all the matters which led to its conclusion that Mr Nguyen was not in a continuing spousal relationship with Ms Tran. It methodically followed the structure of reg 1.15A and made the necessary findings in relation to each of the considerations. In doing so it identified the “primary facts”, as they are referred to in Nguyen at [32], on which it relied in making those findings. In relation to the requirement to consider any pooling of financial resources it made the conclusion at paragraph 26 of its reasons referred to above. Prior to stating that conclusion, it set out the evidence or other material on which it relied in reaching that finding of fact. That included the analysis of the financial material and reference to the evidence or other material, being its opinion of the manner in which the appellant gave evidence about his financial situation and arrangements. The vagueness of the appellant’s evidence led to or supported the material finding of fact that it was not satisfied “the parties have pooled their finances and shared day-to-day expenses commensurate with being in a genuine spousal relationship”.

73    As mentioned, the flaw in the appellants argument was that it sought to elevate the observation as to the manner in which he gave his evidence about financial matters to a material finding of fact whereas it was merely evidence which supported the finding of fact. Whilst it may have been a conclusion as to its observation it was not, of itself, a material fact in respect of which the Tribunal was required to set out its findings.

74    Mr Boccabella sought to raise the observation to the level of finding of the appellant’s lack of credibility. That too is misplaced. Whilst there is no doubt that the Tribunal ultimately found that Mr Nguyen lacked credit, it did not say so explicitly. However, it did find that Mr Nguyen and Ms Tran had contrived their alleged relationship, which amounts to much the same thing. But that conclusion was open to the Tribunal given the material before it which included its opinion of the evasive manner in which Mr Nguyen gave evidence of his financial arrangements.

75    It follows that the Tribunal did not fall into error in the manner alleged. The material findings of fact on which the decision was based were set out by the Tribunal. The learned primary judge did not err in failing to identify the alleged error.

Alleged failure to make findings in accordance with reg 1.15A

76    A recurring theme in the appellant’s submissions was that the Tribunal failed to make findings of the matters specified in reg 1.15A. The exact nature of that alleged failing was not specified but the submission progressed upon the assumption that the decision in He required the Tribunal to make specific and explicit findings in relation to each of the matters. However, as the above discussion of that case shows, that is not so. The findings may be implicit and can be to the effect that there is insufficient evidence to make a definitive finding as to the precise circumstances.

Nature of the household (reg 1.15A(3)(b))

77    In relation to this criterion of reg 1.15A it was submitted that the Tribunal did not make any findings as to the division of labour in the household and, for that reason, it must be taken as not having considered this matter. It was said that no findings were made about the appellant’s role in assisting in the care of Ms Tran’s school-aged children even though there was evidence of this. It was also said that the Tribunal must not have found this to be material but that is contrary to the obligation in the regulation.

78    The Tribunal made findings about the nature of the household at [27]-[29] of its reasons under the heading “Nature of the household”. It expressly said that it accepted the evidence that the appellant helped supervise the sponsor’s school-aged children and that he contributed to the household cleaning and maintenance. That was obviously a finding in relation to the matters in reg 1.15A(3)(b) and the contributions of each party to the household. However, despite that, the Tribunal concluded the circumstances did not show that the parties had established a joint household and that they lived together as a couple. The obvious concern of the Tribunal was that it had identified that the financial affairs of the parties were strongly indicative that they were not a couple and the contribution to the household by the appellant did not alter that conclusion.

79    In effect, the real point of the appellant’s submission in this respect was to argue that the conclusions of the Tribunal in relation to some or one of the matters in in reg 1.15A(3) can have no impact on the relevance of other matters. That is obviously fallacious. Indeed, the very task of the decision maker is to consider all of the matters and, after taking them all into consideration, to determine whether a genuine spousal relationship exists. A conclusion with respect to one matter that the parties are clearly not in such a relationship will necessarily diminish the impact of the circumstances surrounding the other matters.

80    The findings made by the Tribunal of the relevant matters in reg 1.15A(3)(b) were obvious and appear on the face of the reasons and there is no substance to this ground of appeal which borders on the frivolous.

Social aspects of the relationship (reg 1.15A(3)(c))

81    Under the heading “Social aspects of the relationship”, in paragraphs [30]-[33] of the Tribunal’s reasons it considered the evidence which purported to support the claimed social aspects of the relationship between the appellant and the sponsor.

82    The substance of the appellant’s complaint in regard to this issue is also not clear. On one view it might be said the Tribunal did not undertake a proper assessment of this integer. However, the reasons of the Tribunal make it clear that it considered the evidence presented. Indeed, in part, it concluded that the evidence of the social aspects of the lives of the appellant and the sponsor supported the existence of a genuine spousal relationship. It specifically noted at [33] that:

The Tribunal accepts on the evidence provided that the parties are recognised as having married by family members and friends, and that these family members and friends support the applicant’s visa application.

83    However, it also observed that it did not find the photos provided or the corroborating statutory declarations to be convincing evidence that the parties were in a genuine spousal relationship.

84    The appellant submitted that the Tribunal ought to have contacted a number of persons by telephone so as to obtain evidence in relation to their perception of the relationship between Mr Nguyen and Ms Tran, but failed to do so. Section 361(3) of the Act makes express provision for circumstances such as this and provides that the Tribunal is not required to comply with any request for oral evidence to be received from any person or persons. Moreover, in this case, at the hearing the Tribunal member inquired of Mr Nguyen’s migration agent and solicitor whether he and the appellant were content that the witnesses identified not be called and no concern was raised. It is far too late now to complain that these persons should have been contacted: see Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Maltsin (2005) 88 ALD 304 at [37].

85    Whilst the Tribunal did not take up an invitation to contact certain persons by telephone, it was not obliged to and no error was shown in its failure to do so. Again, the complaint in this regard is close to frivolous.

Nature of the persons’ commitment to each other (reg 1.15A(3)(d))

86    Again, it is difficult to understand the complaint made in relation to this topic and it was not elucidated in the written submissions. It may have been a complaint that the finding of fact on this matter was overwhelmed by the conclusion formed by the Tribunal with respect to the financial affairs of the parties. Consideration of the topic was dealt with specifically by the Tribunal from [34]-[38] and in the latter paragraph it concluded as follows:

The Tribunal accepts that the parties have drawn some companionship and emotional support from each other but is of the view that this has been within the context of a cousin-of-a-friend/ housemate/contrived arrangement, rather than a genuine spousal relationship. Having considered the evidence and the circumstances of the applicant and the sponsor, the Tribunal is not satisfied that the parties see the relationship as continuing long-term.

87    It is apparent that the Tribunal took this matter into account and examined the evidence before it. It made a finding of fact as to the nature of the commitment between the appellant and the sponsor and concluded that it was not such as to indicate the existence of a genuine spousal relationship. It may be that the real complaint of the appellant was that the Tribunal had somehow allowed its conclusions in relation to the financial aspects of the relationship to overshadow its consideration of this issue and its conclusions in relation to the latter were erroneous. As identified above, there was no error in the Tribunal’s approach which was part of the evaluative task required of it. All that it did was make a finding as to the actual nature of the relationship and then, after considering that issue in conjunction with others, concluded that the nature of the relationship was not a long-term continuous one. That was the fulfilment of the task required of it and no valid complaint has been raised. It follows the submissions in relation to in reg 1.15A(3)(d) also cannot be sustained.

Generally about reg 1.15A

88    The appellant points to the Tribunal’s questioning of the appellant concerning his relationship with the sponsor and, in particular, the age difference and his relative youth. This, it is said, may have consciously or subconsciously led the Tribunal to believe that a younger man ought not be marrying an older woman.

89    However, the manner of questioning of the appellant did not indicate any such perception by the Tribunal. It was entitled to probe the appellant as to the matters about which it was concerned and to seek explanations from him. There is nothing in the reasons of the Tribunal which suggested that it held any preconceived perception as to what is an appropriate age relationship in marriage. Even if there were, it is not something which the Tribunal was not entitled to take into account.

90    It follows that no error is shown on this ground either.

Unreasonableness

91    The unreasonableness ground was also left in vague and general terms. It appeared as a “catch-all” submission relying upon the arguments made in respect of the other grounds of appeal. No specifics were identified and the written submissions merely asserted that the reasons lacked an evident and intelligible justification.

92    However, there is no merit in this ground either. The reasons provide a clear and intelligible path to the conclusions reached in relation to the several matters which the Tribunal was required to consider. The evidence on which the Tribunal relied in reaching its conclusion was clearly identified and its rejection of Mr Nguyen’s claim as being based on contrived evidence was justified.

Conclusion

93    None of the above matters were shown to give rise to any jurisdictional error by Tribunal. The learned primary judge was correct not to find any. In the result the appeal must be dismissed.

94    There is no reason why the appellant ought not pay the first respondent’s costs of the appeal.

Associate:    

Dated:    19 July 2019