FEDERAL COURT OF AUSTRALIA

Almomani v Minister for Immigration and Border Protection [2020] FCA 264

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 16 November 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 18 August 2016: see Almomani v Minister of Immigration & Anor [2018] FCCA 3311. The Tribunal had affirmed a decision of the delegate of the respondent Minister to refuse the appellant a Partner (Temporary) (Class UK) (Subclass 820) visa.

Background

2    The appellant is a citizen of Jordan. On 26 June 2013, he applied for the visa on the basis of his claimed de facto relationship with an Australian citizen (referred to below as the “sponsor”).

3    In order to be granted the visa, the appellant had to satisfy subcl 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), relevantly requiring that, at the time of the visa application, the appellant was the de facto partner of an Australian citizen. Subclause 820.211(2)(a) provided:

820.21—Criteria to be satisfied at time of application

820.211

…

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

(a)    the applicant is the spouse or de facto partner of a person who:

    (i)    is an Australian citizen, an Australian permanent         resident or an eligible New Zealand citizen; and

    (ii)    is not prohibited by subclause (2B) from being a             sponsoring partner; …

        ….

It was common ground that subclause (2B) did not apply.

4    Section 5CB of the Migration Act 1958 (Cth) defined what was meant by the expression “de facto partner” and “de facto relationship” in the following way.

5CB     De facto partner

    De facto partners

(1)        For the purposes of this Act, a person is the de facto partner of another     person (whether of the same sex or a different sex) if, under subsection     (2), the person is in a de facto relationship with the other person.

De facto relationship

(2)        For the purposes of subsection (1), a person is in a de facto     relationship with another person if they are not in a married     relationship (for the purposes of section 5F) with each other but:

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

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

    (c)    they:

    (i)    live together; or

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

    (d)    they are not related by family …

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

…

It was also common ground that these definitions were applicable to subcl 820.211(2)(a) of Schedule 2 of the Migration Regulations.

5    Regulation 1.09A of the Migration Regulations made provision “in relation to the determination of whether 1 or more of the conditions” in s 5CB(2)(a), (b), (c) and (d) of the Migration Act was satisfied. Where the Minister was considering an application for a Partner (Temporary) (Class UK) visa, reg 1.09A required the Minister to give consideration to numerous matters, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

6    Regulation 2.03A of the Migration Regulations made further provision for the “criteria applicable to de facto partners”. Broadly speaking, reg 2.03A fell to be applied after a decision-maker determined that the visa applicant was a “de facto partner” (as defined in s 5CB) in accordance with reg 1.09A. Amongst other things, reg 2.03A introduced a temporal limitation. In particular, subreg 2.03A(3) provided that, subject to subregs 2.03A(4) and 2.03A(5), if a person applies for a Partner (Temporary) (Class UK) visa and “cannot establish compelling and compassionate circumstances for the grant of the visa”, then:

… the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.    

7    Subregulation 2.03A(4) is not relevant in the circumstances of the appellant’s case. In argument at the hearing, counsel for the appellant referred to subreg 2.03A(5). That subregulation relevantly states that:

(5)    Subregulation (3) does not apply if the de facto relationship is a relationship     that is registered under a law of a State or Territory prescribed in the Acts     Interpretation (Registered Relationships) Regulations 2008 as a kind of     relationship prescribed in those Regulations.

It was, however, common ground that the appellant’s relationship with his sponsor had not been registered.

8    On 27 November 2014, a delegate of the respondent Minister refused the visa application. The delegate was not satisfied that the requirements of subcl 820.211(2)(a) of Schedule 2 of the Migration Regulations were met, since the delegate was not satisfied that the appellant and the sponsor were in a “de facto relationship” as defined by s 5CB(2) of the Migration Act at the time of the application.

9    On 17 December 2014, the appellant sought review by the Migration Review Tribunal, as it then was, of this decision. On 8 August 2016, he attended a hearing before the Administrative Appeals Tribunal, as it had become known by that time. He was assisted by an interpreter. His sponsor and two witnesses also provided evidence. On 18 August 2016, the Tribunal affirmed the delegate’s decision.

The Administrative Appeal Tribunal’s decision

10    It was accepted before the Tribunal that the appellant’s relationship with the sponsor had ceased.

11    In this circumstance, the Tribunal identified the issues before it as:

(1)    whether the appellant and the sponsor were in a genuine de facto relationship when the visa application was lodged; and

(2)    if so, whether the appellant and the sponsor had been in a de facto relationship for a period of least 12 months ending immediately before the date of the application; and

(3)    if not, whether there were compelling and compassionate circumstances for the grant of the visa.

12    Since the Tribunal answered the first issue in the negative, it was unnecessary for it to address the second and third issues, and it did not do so.

13    The Tribunal noted that, in determining whether the sponsor and the appellant were in a de facto relationship, consideration was to be given to all of the circumstances of the relationship, including the matters stated in reg 1.09A of the Migration Regulations.

14    The Tribunal summarised the evidence given by the appellant, his brother, a friend, and the sponsor, as well as the documents provided to the Tribunal in support of the application. It concluded that “[i]nconsistent information has been provided to the Department and the Tribunal in relation to when the parties started to live together”. It continued (at [50]-[51]):

By way of example, Mr Almomani says in the Statement lodged with his visa application that once the couple met again in Canberra [the sponsor] was “straightforward expressing her feelings” and so they decided to live together to start a new life. He states in his Form 47SP that he committed to a defacto relationship with [her] on 10 April 2013. However, in response to Q 25 in his Form 47SP Mr Almomani provides his residential address at the time of lodgement on 26 June 2013 as an apartment in … Reid. Furthermore, in her Form 40SP, [the sponsor] also lists Mr Almomani’s address at the time of lodgement as an apartment in … Reid. In addition, the couple’s joint bank account statement … dated 26 June 2013 (the same day the visa application was lodged) is addressed to both Mr Almomani and [the sponsor] at the apartment in … Reid. By comparison, in the Statement dated 31 July 2016 lodged with the Tribunal just prior to the hearing, Mr Almomani states he started living with [the sponsor] from February 2013.

The Tribunal endeavoured to clarify during the course of the hearing when the de facto relationship commenced and the parties started to live together as a couple. As noted above, Mr Almomani was not able to indicate in his oral evidence to the Tribunal precisely when the de facto relationship started. He said he was aware that his second 3 month Visitor visa was expiring in early July and that he needed to do something before it expired. [The sponsor] too could not remember when [Mr] Almomani moved into her house. In relation to the inconsistent information regarding addresses, Mr Almomani clarified his brother lives in the apartment at … Reid and that when he first arrived in Canberra he lived with his brother but then “later moved to live with [the sponsor] on and off”. He added that he did not change his address on certain documents to the Bonython address “until later on”.

15    On the available evidence, the Tribunal stated (at [52]) that it appeared that the appellant did not see the sponsor’s home as his place of abode until mid-2014. This was well after the visa application had been lodged.

16    In relation to the financial aspects of the relationship, the Tribunal found (at [55]-[57]) that the parties had no assets in joint names and that, apart from a St George Bank statement, the financial aspects of the relationship did not indicate that the parties were in a genuine and continuing relationship prior to the date of application. The Tribunal added, however, that as neither Mr Almomani nor the sponsor had “any significant financial assets of their own, the Tribunal place[d] little weight on this aspect when considering whether the parties were in a de facto relationship at the time of application, or the 12 months ending immediately before the date of application”.

17    After considering the evidence before it, the Tribunal was not satisfied (at [65]) that the parties had represented themselves as a couple to family and friends at the time of Mr Almomani’s visa application. The Tribunal referred to their inconsistent evidence in relation to their living arrangements, and their failure to register their relationship with the ACT Births, Deaths and Marriages registry. The Tribunal also stated (at [62]) that it found statements of Mr Almomani’s family and friends to be “unhelpful” in determining when the de facto relationship commenced. The Tribunal also expressed concern about the inconsistencies and changing evidence given by Mr Almomani and his sponsor as to when he slept in her house and about the inconsistent evidence given about his sponsor’s ex-husband’s visits to the house.

18    The Tribunal held (at [68]) that no evidence had been provided as to the nature of Mr Almomani’s and his sponsor’s commitment to each other at the time of the visa application. The Tribunal added (at [69]) that Mr Almomani had given, at the hearing, inconsistent and changing evidence as to the support that he had given his sponsor after he had moved out of her home, raising doubts about his truthfulness.

19    The Tribunal concluded (at [72]) that “[a]fter weighing all the evidence [it was] not satisfied that the parties were in a genuine and continuing … de facto relationship on 26 June 2013” when the appellant lodged his visa application. The Tribunal found (at [72]) that “the parties made the decision to commit to a de facto relationship sometime in mid-2014”. Accordingly, the appellant did not satisfy subcl 820.211(2)(a) of Schedule 2 to the Migration Regulations.

The Federal Circuit Court proceeding

20    On 9 September 2016, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant’s case before the primary judge was that the Tribunal had breached ss 359A and 359AA of the Migration Act.

21    Subsection 359AA(1) of the Migration Act at the relevant time provided as follows:

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

22    Subsections 359A(1), (2) and (3) of the Migration Act provided as follows:

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

23    In the Federal Circuit Court, the appellant relied on two items of “information”. The first was his oral evidence before the Tribunal that his relationship with the sponsor was not registered because the sponsor was scared of her ex-husband. The second was his sponsor’s oral evidence before the Tribunal that she did not know why they did not register the relationship. The appellant submitted that the Tribunal failed to put the sponsor’s evidence to the appellant in compliance with s 359A and 359AA of the Migration Act.

24    The primary judge did not accept that the sponsor’s evidence was relevantly “information” for the purposes of ss 359A and 359AA of the Migration Act. Rather, his Honour held that the Tribunal’s concern was that the sponsor’s evidence failed to corroborate the appellant’s account; and that the nature of the sponsor’s evidence did not amount to a rejection of the appellant’s explanation and was not such as to engage ss 359A and 359AA. This led to his Honour’s decision to dismiss the judicial review application before him.

Appeal to this Court

25    This is an appeal from his Honour’s judgment. The sole ground of appeal is that:

The FCC was wrong to find that the “information” identified at FCC reasons [20]-[22] did not constitute a denial, rejection or undermining of the [appellant’s] account so as to engage the obligation under s 359A of the Migration Act 1958 (Cth). The FCC should have found that the information constituted an undermining of the [appellant’s] account in a manner that did engage s 359A of the Migration Act 1958 (Cth), and the Tribunal failed to comply with the requirements of that provision.

The appellant’s submissions

26    The appellant submitted the primary judge’s approach did not conform to authority. Referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [9], the appellant submitted in written submissions that it was apparent from paragraphs [61], [69] and [72] of the Tribunal’s reasons that it considered that the evidence of the sponsor would be part of the reason for affirming the decision under review. The appellant contended that whether the information “in its terms” contains a “rejection, denial or undermining”, as the majority in Plaintiff M174/2016 (at [9]) required, must be determined having regard to the whole of the material before the Tribunal considered in the context of the relevant legislative framework. The appellant submitted that the “test” applied by the primary judge at [27] of his reasons was therefore wrong. The appellant continued:

9.    In this case, the reason why the sponsor’s information undermined the [appellant’s] claims is because it was not consistent with his evidence. That inconsistency led to reasoning which was adverse to the [appellant’s] interests in the review, in a material way. One part of that reasoning was that there was information before the Tribunal which provided the foundation for that path of reasoning, and therefore, that information itself was “part of the reason for affirming the decision”.

10.    To focus on the fact that the Tribunal deploys the “inconsistency” in the evidence is distracting. The inconsistency did not arise in a vacuum. It arose because there was evidence given to the Tribunal. That evidence was inherently capable of being “information”, and it was conceded that it was evidence which “harmed” the appellant’s interests in the review. There were many parts involved in that ultimate path of reasoning: (i) one part was the appellant’s own evidence; (ii) another part was the sponsor’s evidence; (iii) a third part was the general background of facts relevant to (i) and (ii). Each contributed, or was a part of, reasoning that led to the affirming of the decision under review. That engaged s 359A (and it was not suggested that if it was engaged, s 359A had been complied with).

11.    The fact that the sponsor’s evidence was adverse to the appellant only because of the contextual feature of the case that the appellant had earlier given different evidence should not detract from the application of s 359A.

27    At the hearing of the appeal, counsel for the appellant commenced with four propositions, namely: (1) the Tribunal was charged with determining whether the appellant and his sponsor were in a genuine and continuing de facto relationship at the time of the application; (2) some of the information given by the appellant’s sponsor undermined the appellant’s claim that they were in a genuine and continuing de facto relationship at that time; (3) the Tribunal formed the view that this information would be part of the reason for affirming the decision on review; and (4) the Tribunal’s failure to explain why this information was relevant to the review and to advise the appellant that he may seek additional time to comment on it was a breach of s 359A of the Migration Act.

28    After referring to reg 2.03A (see [6] above), counsel for the appellant clarified that his submission was that:

… the error is, in drawing the conclusion that this was not a genuine and continuing de facto relationship, the Tribunal relied on information. That information was [the sponsor’s] lack of knowledge about why it did not register the relationship – why they did not register the relationship.

29    Referring to [61] of the Tribunal’s reasons, counsel for the appellant submitted:

That part of the reason it decided to affirm the decision of the delegate was [the sponsor’s] evidence that she did not know why [the relationship] had not been registered. Now, the moment that became clear, it ought to have given the obligations under 359A, being put to the applicant, the applicant should have been – and we deal with this in proposition 4 – explained the significance of that information and given the opportunity to request an adjournment or respond on the spot, all of which it is not [what] happened. So if 359A is enlivened, it’s not an issue that it was not complied with.

30    Counsel submitted that the sponsor’s statement that she did not know why their relationship had not been registered “raised doubts in the mind of the Tribunal as to whether, at the time, [the sponsor] was of the opinion that there was no basis yet for registering the relationship”. There was, so counsel said, a “hidden step” in the last sentence at [61] of the Tribunal’s reasons, namely, that “if [the sponsor] had thought, as the other party to her de facto relationship, that this was a de facto relationship, then she would have been content to register this”. It was, so counsel said, part of the reasoning of the Tribunal that led it to affirm the delegate’s decision. The appellant’s submission was that the information (that the sponsor did not know why the relationship was not registered) was part of the Tribunal’s train of reasoning that “allow[ed] the Tribunal to arrive at the conclusion that this wasn’t a de facto relationship at the time of lodgement”, and “that is precisely what the section requires be put to the [visa] applicant”.

31    The appellant’s counsel supported this submission by reference to the transcript of the hearing before the Tribunal, referring specifically to the appellant’s evidence that he “tried” to “register this marriage” “so that our relationship becomes official”, and to his evidence about his sponsor’s response to his efforts in this regard, including his evidence that “she said she always had in mind that as long as we register this marriage her husband is going to know”. In this context, counsel for the appellant referred to the sponsor’s evidence that she didn’t know why they didn’t register the relationship and to her statement that:

I can’t remember, I told you I’m a sick person, I take tablet[s], I take medication. There’s a lot of thing[s] I can’t really remember, it’s been … a long time.

The appellant’s counsel’s reiterated that the Tribunal should have provided the particulars referred to in s 359A about the fact that the sponsor said she did not know why she did not register the relationship with the ACT Births, Marriages and Deaths Registry, since this was part of the Tribunal’s reasoning that led it to conclude that the decision under review should be affirmed.

32    At one point in his submissions, counsel for the appellant agreed with the proposition that the sponsor’s information that she did not know why the relationship was not registered was directly relevant to subreg 2.03A(5) (see [6] above). What may have appeared to have been a significantly different case from that in the appellant’s written submissions was not, however, ultimately pursued. The appellant’s counsel eventually informed the Court that the appellant only sought to depart from [9] of the appellant’s written submissions, saying:

We put it that [the information from the sponsor] undermined the applicant’s claims because it formed part of the reasoning that allowed the Tribunal to conclude that this was not a genuine de facto relationship. So it is not the inconsistency we complain about at this hearing … It is that it is an independent partial limb of the reasoning process.

That is, counsel argued that part of the way the Tribunal concluded that it was not satisfied that the parties were in a genuine and continuing de facto relationship was “via the information of the sponsor”.

33    In reply, counsel for the appellant submitted that the information the sponsor gave was relevant to subreg 1.09A(3)(d)(iv) (“whether the persons see the relationship as a long-term one”). Counsel also submitted that this information was not neutral and undermined the appellant’s case, adding:

So we don’t put it that it’s what the Tribunal does with that information. … The information that should have been disclosed was, “your sponsor doesn’t know why your relationship was [not] registered”, or, in the alternative, “Your sponsor was being evasive about why the relationship was not registered”…

34    Counsel relied on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; 179 FCR 109 at [104] in support of the proposition that the obligation in s 359A was engaged in this case because the sponsor’s information undermined the appellant’s claims.

The Minister’s submissions

35    Citing Plaintiff M174 at [24], Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [22] and SZBYR at [17], the Minister submitted in writing that the information at issue was in substance “the communication of knowledge about some particular fact, subject or event”, and that the obligation in s 359A would arise only if the information (so defined) contained “in [its] terms a rejection, denial or undermining” of the appellant’s claims. The Minister submitted that the sponsor’s evidence that she did not know why the relationship was not registered was not a rejection, denial or an undermining of the appellant’s claim to be in a de facto relationship with her. Rather, so the Minister submitted, this evidence “came to be relied on to find inconsistency, and to cast doubt on the credibility and truthfulness of the [a]ppellant’s claims”. The Minister submitted that “[i]t was the inconsistency, or the process of comparison between the [a]ppellant’s and [s]ponsor’s evidence, which counted against the [a]ppellant – but inconsistency, or such a comparative process” [was] not information in the sense used in s 359A of the Migration Act.

36    In submissions at the hearing, counsel for the Minister contended that the reason or part of the reasons for affirming the decision under review was that the appellant was not in a de facto relationship with his sponsor at the time he lodged his visa application on 26 June 2013. Counsel submitted that the Tribunal’s reasons for decision made it clear that, “after a process of synthesising the relevant evidence, the Tribunal did not accept the [appellant’s] evidence or claims about the nature of the relationship”; and that “in part, that was because of the inconsistencies in that evidence and his own credibility”. Counsel submitted that the Tribunal “did not arrive at that finding because … the sponsor’s evidence in terms had rejected, denied or undermined the [appellant’s] evidence.” Rather, so the Minister’s counsel said:

The Tribunal simply found that the sponsor’s evidence did not corroborate the [appellant’s] evidence as part of the synthesising and evaluative process that it undertook. … [T]he material in question … when viewed against the other statements made by the [appellant], cast doubt on his credibility, but it only had that significance of affirming the delegate’s decision when matched against other answers given.

37    As to the appellant’s argument that the evidence about the sponsor’s lack of understanding of the relationship formed part of a train of reasoning that led, in terms, to a rejection, denial or undermining of the applicant’s claims, counsel for the Minister submitted that this was “the end product of synthesising an evaluative process” and that the appellant’s submission was contrary to the approach adopted in SZJBD at [104].

Consideration

38    There are a number of well-established principles concerning ss 359A and 359AA and cognate provisions of the Migration Act. First, the particulars that must be provided are particulars of “information”. The obligation to give particulars does not extend to particulars of “subjective appraisals, thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 at [24] and SZBYR at [18].

39    It is said by the appellant that the information attracting the s 359A obligation in this case was that the appellant’s sponsor did not know why her relationship with him had not been registered. Viewed in this way, it may be accepted for present purposes that the material said to engage the obligation in s 359A was not merely a thought process or identified doubt or inconsistency (although the information acquired its significance because of the Tribunal’s appraisal of the evidence: see [47] below).

40    Secondly, the information must be information that “would be the reason, or part of the reason, for affirming the decision that is under review”: SZBYR at [17]. That criterion directs attention not to the prospective reasoning process of the Tribunal, or the Tribunal’s published reasons, but rather to the criteria to be found in the Migration Act or Migration Regulations for the making of the decision: SZBYR at [17]. It was said in SZBYR at [17] that the “use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of [the section] is to be determined in advance – and independently – of the [T]ribunal’s particular reasoning on the facts of the case”. In Plaintiff M174/2016 at [9], Gageler, Keane and Nettle JJ said of a materially identical provision that:

… The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister’s] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa.

41    In this case, whether the identified “information” would be the reason, or part of the reason, for affirming the decision under review must be assessed principally by reference to cl 820.211 of Schedule 2 to the Migration Regulations (and, in so far as relevant, reg 1.09A and reg 2.03A) and s 5CB of the Migration Act. To meet the criteria for the visa the appellant sought, subcl 820.211(2)(a) required that, at the time of the visa application, the appellant was the de facto partner of an Australian citizen (here, his sponsor). Under s 5CB(1) of the Migration Act, a person would be the de facto partner of another at the relevant time if he or she was in a de facto relationship with the other at that time. The effect of s 5CB(2) was, relevantly, that a person would be in a de facto relationship with another person at the relevant time if they were not in a married relationship but: (1) they had a mutual commitment to a shared life to the exclusion of all others; (2) the relationship between them was genuine and continuing; and (3) they lived together, or did not live separately and apart on a permanent basis. Information that the appellant and his sponsor were not in a genuine and continuing de facto relationship on 26 June 2013 when the appellant lodged his visa application would therefore be the reason, or part of the reason, for affirming the decision under review, because it would mean that the appellant could not satisfy cl 820.211, in particular subcl 820.211(2)(a), because the appellant would not satisfy the definition of “de facto relationship” in s 5CB(2) and therefore the definition of “de facto partner” s 5CB(1). On the other hand, in the absence of other contextual evidence or material, the information that the appellant’s sponsor did not know why her relationship with the appellant had not been registered would not be the reason, or part of the reason for affirming the decision under review, because it cannot be inferred from this information alone that the appellant would not satisfy the criteria in subcl 820.211 (or, if relevant, the criteria in reg 2.03A). The obligation in s 359A was therefore not engaged by the information on which the appellant relied.

42    Further, as indicated in the passage from Plaintiff M174/2016 (set out at [40] above), for the obligation in s 359A to arise, the information in question should in its terms involve a “rejection, denial or undermining” of the review applicant’s claims relevant to the visa criteria in question: SZBYR at [17]; SZLFX at [22], [25]. The information relied on by the appellant in this case did not “in terms” amount to a “rejection, denial or undermining” of the appellant’s case. By itself, the information that the sponsor did not know why her relationship with the appellant had not been registered did not contradict or undermine the appellant’s case that as at 26 June 2013 he and his sponsor had a mutual commitment to a shared life together, to the exclusion of others; that their relationship was genuine and continuing; and that they were living together (or not living separately and apart on a permanent basis).

43    In this case, the appellant failed because the Tribunal held that it was not satisfied that the appellant and the sponsor were in a genuine and continuing relationship at the time the appellant made his visa application. The appellant was therefore unable to satisfy the Tribunal that he was the “de facto partner” (as defined in s 5CB of the Migration Act) of an Australian citizen and could not satisfy the criterion for the grant of a visa in subcl 820.211(2)(a) of Schedule 2 to the Migration Regulations. Thus, at [71]-[72], the Tribunal stated:

It appears to the Tribunal that, up until the time Mr Almomani lodged his Partner visa application, the couple were merely boyfriend and girlfriend, enjoying each other’s company having come from a similar cultural background in Jordan. It is clear that they also spent time at each other’s separate residences. In his oral evidence to the Tribunal Mr Almomani said he was “getting to the point” where he decided to resign from the Jordanian Armed Forces and that’s what “prompted” him to lodge his application for a Partner visa having regard to the imminent expiry of his Visitor visa. … However, the Tribunal notes the Department’s file contains a copy of Mr Almomani’s Jordanian Forces Service certificate dated 14 March 2013 confirming he “Retired on pension” effective 3 March 2013, that is 3 months before lodging his Partner visa application.

After weighing all of the evidence the Tribunal is not satisfied that the parties were in a genuine and continuing … de facto relationship on 26 June 2013 when Mr Almomani lodged his visa application. The Tribunal finds the parties made the decision to commit to a de facto relationship sometime in mid-2014.

44    The information that the sponsor did not know why the relationship was not registered acquired some (limited) significance in the Tribunal’s consideration, principally because of the appellant’s evidence as to why the relationship was not registered. This is confirmed by the fact that the Tribunal made its decision to affirm the delegate’s decision only after it had followed the course laid down in reg 1.09A of the Migration Regulations.

45    As already noted, reg 1.09A of the Migration Regulations required the Tribunal to consider all of the circumstances of the relationship, including the numerous matters set out in subreg 1.09A(3), in determining whether the appellant and his sponsor had a genuine and continuing relationship at the time of application: see subreg 1.09A(2) and (3); and s 5CB(2)(b). The Tribunal explained why it was not satisfied that the relationship was genuine and continuing at this time in accordance with reg 1.09A. It specifically addressed the matters identified in subreg 1.09A(3), including: (a) the financial aspects of the relationship (including the items to which subreg 1.09A(3)(a) directed attention); the nature of the household (including the items to which subreg 1.09A(3)(b) directed attention); the nature of the persons’ commitment to each other (including the items to which subreg 1.09A(3)(d) directed attention); and, relevantly in this appeal, the social aspects of the relationship (including the items to which subreg 1.09A(3)(c) directed attention).

46    In relation to the social aspects of the relationship, the Tribunal stated (at [58]) that it had “considered evidence that the parties … declared their relationship to other government and commercial/public institutions or authorities as well as statements from family members and friends”; their plans for the future; and whether they presented themselves as a couple socially. After referring (at [60]) to the fact that the Tribunal had been given documentation confirming that the parties had notified the ACT Housing Commission and Centrelink of their relationship in November 2014 and noting certain deficiencies, the Tribunal said (at [61]):

In relation to the parties’ failure to register their relationship with the ACT DBM Registry the Tribunal notes [the sponsor’s] oral evidence that she had no idea why the couple’s relationship was no registered. Mr Almomani, however, told the Tribunal that [she] had failed to register the relationship out of fear of her ex-husband. When the Tribunal put this inconsistency to Mr Almomani he responded by saying “I will answer in a different way. The problem is not with the patient but with the treatment given to the patient. She knew she could register the relationship. It was my idea. It was her decision to refuse registration”. The Tribunal reminded Mr Almomani that [the sponsor] had said she did not know why the relationship was not registered to which he responded “had this relationship been registered, I wouldn’t have all these problems. She is ill”. While the Tribunal accepts, based on information provided, that [the sponsor] clearly has some medical issues including mental health issues it raises doubts in the mind of the Tribunal as to why Mr Almomani did not prevail upon [the sponsor] to register the couple’s relationship. It raises doubts in the mind of the Tribunal as to whether, at the time, [the sponsor] was of the opinion there was no basis yet for registering the relationship.

(Emphasis added)

47    The Tribunal’s doubts “as to why Mr Almomani did not prevail upon [the sponsor] to register the couple’s relationship” and “as to whether, at the time, [the sponsor] was of the opinion there was no basis yet for registering the relationship” were the outcome of its comparison of the appellant’s and the sponsor’s evidence about the undisputed fact that their relationship had not been registered. These “doubts” arose from the differences it perceived in their explanations about their failure to register their relationship and were, as the Minister submitted, the product of the Tribunal’s synthesis of the evidence. The information that the sponsor did not know why the relationship with the appellant had not been registered acquired significance only as part of this synthesis. Bearing in mind that there was no obligation to give particulars of the Tribunal’s “subjective appraisals, thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence” (see [38] above), there is also no obligation to give particulars of information that acquires significance only as a result of the Tribunal’s subjective synthesis of the items of evidence before it. The appellant cannot avoid this fundamental problem by ascribing to the information in question a part in the Tribunal’s chain of reasoning. If the appellant’s analysis were correct, contrary to the authorities discussed above, almost every matter that played any part in the Tribunal’s decision-making would attract the obligation in s 359A.

48    Furthermore, the doubts to which the Tribunal referred were not conclusive of any issue on which the grant of the visa depended. The evidence as to the social aspects of the claimed relationship was only a part of the evidence that the Tribunal considered before reaching the decision to affirm the delegate’s decision; and, contrary to the appellant’s submissions, the Tribunal regarded the sponsor’s evidence as to why the relationship was not registered as relevant only to the social aspects of the claimed relationship. The Tribunal also considered the evidence relating to each of the other matters to which reg 1.09A directed its attention: see [45] above. Furthermore, the Tribunal did not limit its consideration of the social aspects of the relationship to the evidence mentioned in [46] above. The Tribunal set out (at [58] and [62]-[64] of its reasons) other considerations that led it to find (at [65]) that it was not satisfied that the parties represented themselves as a couple to family and friends at the time Mr Almomani made his visa application. These considerations included that the documents before the Tribunal showing that Mr Almomani and his sponsor had notified the ACT Housing Commission and Centrelink of their relationship post-dated the date of Mr Almomani’s visa application (at [60]); the lack of any indication in statements provided by family and friends as to when the claimed de facto relationship began (at [62]); the absence of confirmatory statements by the sponsor’s children as to when their mother’s relationship with Mr Almomani commenced (at [63]); and that Mr Almomani’s evidence concerning the sponsor’s former husband and the children of that relationship indicated an unfamiliarity with the sponsor’s household and her former husband’s access arrangements with his children (at [64]).

49    As already stated, because the appellant was unable to establish to the Tribunal’s satisfaction that, at the time he made his visa application on 26 June 2013, he and his sponsor were in a genuine and continuing relationship, he was unable to meet the visa requirements in cl 820.211 of Schedule 2 of the Migration Regulations for a visa of the kind he sought. It was in this circumstance unnecessary for the Tribunal to consider the application of reg 2.03A. The Tribunal correctly stated (at [73]): 

Because the Tribunal has found that the parties were not in a genuine de facto relationship as at the time of application it has not been necessary to consider whether Mr Almomani meets the additional criteria for a de facto relationship. As noted above, immigration law requires that the de facto relationship must have existed for 12 months prior to the application. This does not apply in certain circumstances where the sponsor is, or was, a humanitarian visa holder, or where the de facto relationship has been registered under a relevant State or Territory law: r [2.03A(4)] and r [2.03A(5)] of the Regulations.  However, the 12 month criterion for a defacto relationship can be waived if an applicant establishes compelling and compassionate circumstances for the grant of the visa. It is only necessary to consider whether there are compelling and compassionate circumstances for the purpose of r 2.03A(3)(b) of the Regulations once a decision maker is satisfied there was a de facto relationship at the time of application … As the Tribunal has found there was no de facto relationship at the time of application it is not required to consider whether there are compelling and compassionate circumstances for the purpose of r 2.03A(3)(b) of the Regulations.  

50    To the extent the appellant relied on reg 2.03A in his submissions at the hearing, this regulation could not advance the appellant’s case because it could not overcome the appellant’s fundamental difficulty, namely, that he had not satisfied the Tribunal that he had a genuine and continuing de facto relationship with his sponsor at the time he lodged his visa application. Furthermore, subreg 2.03A(5) could not make the sponsor’s information (that she did not know why the relationship had not been registered) the reason, or part of the reason, for affirming the decision under review because it was clear that subreg 2.03A(5) was inapplicable in the appellant’s case since the relationship had not been registered. The fact that the sponsor did not know why the relationship had not been registered was irrelevant to the application of subreg 2.03A(5).

51    For the reasons stated, the appeal should be dismissed with costs.

Associate:

Dated:    6 March 2020