FEDERAL COURT OF AUSTRALIA

Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 3 of the orders of the Federal Circuit Court made 12 March 2020 be set aside and in lieu thereof the following orders be made:

(a)    the decision of the Second Respondent dated 17 February 2017 be quashed and the Appellant’s visa application be remitted to the Second Respondent to be re-determined according to law; and

(b)    the First Respondent pay the Appellant’s costs of the application before the Federal Circuit Court, less any costs thrown away by reason of the amendment of the application allowed by Order 1 of the orders of the Federal Circuit Court made 12 March 2020.

3.    The First Respondent pay the Appellant’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

MURPHY J:

1    The appellant appeals from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal made on 17 February 2017. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the appellant a Partner (Residence) (Class BS) visa (the partner visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    For the reasons I explain, it is appropriate to allow the appeal and order the Minister to pay the appellant’s costs.

THE REGULATORY FRAMEWORK

3    At all material times s 5F of the Act provided:

5F    Spouse

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

  (2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

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

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

   (d)    they:

(i)    live together; or

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

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraph (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.

Note:    Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

4    At all material times reg. 1.15A of the Migration Regulations 1994 (the Regulations) provided relevantly 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:

…

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

(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.

…

5    At all material times cl 801.221 of Schedule 2 to the Regulations provided relevantly as follows:

801.22 – Criteria to be satisfied at time of decision

801.221

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

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

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

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

(i)    the sponsoring partner; or

…

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

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

…

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

…

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

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

(i)    either or both of the following:

           (A)    the applicant;

…

has suffered family violence committed by the sponsoring partner.

…

BACKGROUND FACTS AND PROCEDURAL HISTORY

6    The appellant is a citizen of Sri Lanka, born in February 1985. He arrived in Australia on a student visa in February 2006. In 2006 he completed a Diploma in Business (Marketing). From February 2007 to February 2011 he undertook a Bachelor of Business (Marketing) at the University of Western Sydney in which he graduated.

7    In April 2012, the appellant’s parents placed an advertisement in a Sri Lankan newspaper seeking a wife for their son, being a traditional method of matchmaking. The parents of Ms A (the sponsor), who is a dual Australian and Sri Lankan citizen then studying veterinary science at a university in Queensland, responded to the advertisement. The appellant and the sponsor were introduced through their parents. They first met on 26 June 2012 on the Gold Coast.

8    It is uncontentious that the relationship between the appellant and the sponsor initially went well. From 17 November 2012, they commenced living together in Brisbane, together with relatives of the sponsor.

9    On 14 July 2013, the appellant and the sponsor were married in Sri Lanka, and they then returned to live together in Brisbane.

10    On 13 November 2013, the appellant applied to the Department of Immigration and Border Protection (Department) for a partner visa, sponsored by the sponsor, on the basis of his marriage to the sponsor. With the application he lodged a statement by the sponsor dated 21 October 2013 (the sponsor’s statement) in which she attested to the genuineness of their relationship and their marriage.

11    In February 2014, the appellant and the sponsor moved into a rental property in Brisbane owned by the sponsor’s father.

12    On 20 November 2014, the appellant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa.

13    On 2 December 2014, the sponsor approached the Department to ask what would happen with the visa application should the couple separate.

14    On 4 February 2015, the sponsor notified the Department that she and the appellant had been separated for six months and were awaiting divorce. She also informed the Department that the appellant had been unwilling to advise it about their changed circumstances because he did not want to risk losing the opportunity to obtain permanent residency through the relationship.

15    On 5 February 2015, the Department wrote to the appellant to inform him that it had been informed that his relationship with the sponsor had broken down. The letter invited the appellant to comment on that information and also invited him to provide any additional information as to why his application for the partner visa should still be considered even though the relationship between him and the sponsor had ended. The letter also informed the appellant that one circumstance in which he may continue to be considered for a grant of a partner visa was if he had suffered family violence committed by the sponsor.

16    On 5 March 2015, the appellant’s solicitor and migration agent notified the Department by email that he had been instructed to represent the appellant and to proceed with his application for a partner visa based on family violence he had suffered during his relationship. The email said that the appellant had been receiving professional assistance in relation to the family violence that he had experienced during his relationship, and sought an extension of time within which to provide evidence in that regard.

17    On 10 June 2015, the Department wrote to the appellant requesting that he provide evidence that prior to the cessation of their relationship, on 4 February 2015, he was in a spousal relationship with the sponsor, as defined in s 5F of the Act.

18    On 8 July 2015, the appellant lodged the following materials with the Department:

(a)    a document entitled “Statutory Declaration for Family Violence Claim Form” dated 6 July 2015 in which the appellant claimed, amongst other things:

I was a victim of family violence in the hand [sic] of my wife, [the sponsor]. I suffered emotional, psychological abuse in the hands [sic] of [the sponsor]. [The sponsor] was controlling my finances and I was deprived of my own finances during the relationship. [The sponsor] humiliated me in the social media, namely on the Facebook. She humiliated me in front of my friends, her friends, her family and my family including my mother and the [sic] brother. I was fearful of my own safety as I was suicidal during the relationship. I am still trying to recover from those feelings. [The sponsor] left me a social stigma by demeaning me in front of the society, including our families and our friends. I have to live with that for the rest of my life.

(b)    a lengthy statutory declaration by the appellant dated 6 July 2015 (the July 2015 Declaration), in which he detailed what he described as “emotional abuse” by the spouse. His claims included that:

(i)    in March 2014, the sponsor was extremely stressed and was irrational about their day-to-day life, questioning him in an unusual manner when he was late home from work, frustrated when dinner was late, and would talk to him in a rough and provocative way;

(ii)    prior to the sponsor’s exams in April 2014, her stress reached a very serious level;

(iii)    as time went by such situations became more frequent and provocative and they began to get into heated arguments;

(iv)    by May 2014, he felt pressured as he was the only income earner and the sponsor labelled him as a “low-grade provider”;

(v)    the sponsor had unwarranted discussions with her parents and others about their financial position and he felt let down and exposed;

(vi)    the appellant was working as a car salesman and the sponsor kept telling him that he should get a “real job”;

(vii)    the sponsor revealed their situation on Facebook for all of their family and friends to see, which humiliated him, and she sent him abusive and provocative text messages;

(viii)    in May 2014, he decided to consolidate their finances as a result of the pressure the sponsor was constantly putting on him in relation to finances and he opened a joint bank account with the ANZ. Despite that compromise the sponsor continued to harass him in relation to their finances;

(ix)    the appellant came to the realisation that the sponsor’s behaviour was not just specific to when she was stressed by exams or assignments. She continued to send him long and provocative text messages during the day which frustrated him. He described her interactions with him in relation to their finances as “harassment”;

(x)    in June 2014 his mother agreed to live with them for a short period so that she could give some guidance to the spouse during her stay;

(xi)    however, although the sponsor appreciated the advice she received during his mother’s 45 day stay, she continued to be “ungrateful”. She picked two fights with him about insignificant matters. By this time, he felt his “own family unit” was “falling apart” and he was embarrassed to hang out with his close friends and family and his career was suffering due to his personal life. He was “depressed and panicked” and could not look at his mother since she was also grief stricken by the sponsor’s “unbecoming conduct”;

(xii)    the sponsor sent him abusive texts when she was away on a one week internship in rural New South Wales;

(xiii)    in August 2014, though things had been getting better, they started to go downhill when the sponsor again became pressured by her exams. By that time both of their parents were involved in trying to restore peace in their marriage and they suggested seeking help from a Buddhist priest at their local temple;

(xiv)    in early September 2014, he fell sick due to a “gastro bug” condition. The sponsor came to the medical clinic to assist him but she became abusive when he could not remember the PIN number she had provided him. That event “destroyed” him emotionally as he was physically weak and he completely relied on his wife to take care of him. He was “severely troubled emotionally” and was having trouble sleeping at night due to the emotional stresses;

(xv)    in early September 2014, the sponsor said that she wanted to focus on her studies and she left their home to go and live with a friend of hers. He was told not to contact the sponsor unless she contacted him. That was “the nail in the coffin” for the appellant and he was “shattered to pieces”. The sponsor did not return until the last week in September after he persistently appealed to her and made what he described as “unwarranted apologies” to her;

(xvi)    on 15 October 2014, their dog escaped, it appears because the appellant had not secured the gate properly. The sponsor abused him including in front of a neighbour and he broke down in tears. He was physically shaking out of anxiety in getting panic attacks. He said he was an emotional wreck and wanted to commit suicide. After they got home the sponsor was yelling at him and she smashed some plates and cups on the floor, to the extent that he threatened to telephone the police;

(xvii)    during an argument in their bedroom, the sponsor allegedly dug her finger nails into the appellant’s arm to the extent that she broke the skin and he was bleeding;

(xviii)    in November 2014, they agreed to go to a counselling session with a counsellor at the University of Queensland, which was to take place on 13 November 2014. For reasons which are not explained that counselling session did not occur;

(xix)    in December 2014, the sponsor’s parents decided to fly to Brisbane to be with them, in order to “settle her situation”. The appellant described this as a kind gesture by her parents. The parents witnessed the sponsor’s violent and erratic behaviour but, unfortunately, they took no steps to deal with it;

(xx)    in late December 2014, the sponsor abused him in public when she hurt her ankle while drinking at a hotel and he tried to take her home. He was embarrassed and his self-esteem was damaged in front of his friends;

(xxi)    in that period the appellant was persistently abusing him mentally and emotionally “in the eye of everybody” and he was exhausted;

(xxii)    in early January 2015, he was persistently appealing to the sponsor to resolve their differences and to give a new start to their life. They were still sleeping together and their sexual relationship was consistent;

(xxiii)    in January 2015, the sponsor contacted their bank and tried to cancel a joint account, and to transfer all of their bills and pet insurance into his name which caused him economic stress on top of the emotional damage. He was “depressed constantly”, “worn out” and “emotionally scarred”. He decided to go and see a doctor and he attended on Dr Tien Yu Lee, General Practitioner,, on 15 January 2015, who in turn referred him to a psychologist, Ms Amanda Hendren. He began to get regular counselling;

(xxiv)    on 25 January 2015, the sponsor decided to return to Canberra to her parents. She informed him that she would not be attending university for the next six months;

(xxv)    on 4 February 2015, the appellant was “shattered” by an email that he received from the sponsor in which she asked him to sign a form which enabled her to notify the Department she was no longer with him. He began to suffer from anxiety attacks and to have suicidal thoughts. Two days later he received a letter from the Department which informed him that the sponsor had withdrawn her sponsorship of his visa application;

(c)    a statutory declaration by Dr Lee dated 7 July 2015. In summary, it recorded that the appellant first saw Dr Lee on 15 January 2015 in relation to psychological problems associated with his relationship with the sponsor, and had continued to see him on four further occasions in March, May and June 2015. Dr Lee diagnosed that the appellant was suffering from a severe mental health condition which required support and psychotherapy. Based on the information the appellant provided Dr Lee concluded that the appellant was a victim of family violence;

(d)    a statutory declaration by Ms Hendren, psychologist, dated 7 July 2015 (the Psychologist’s Declaration). In summary, Ms Hendren stated that the appellant first saw her on 16 January 2015 in relation to psychological problems associated with his relationship with the sponsor and had continued to see him on nine further occasions between January and June 2015. Ms Hendren said that the appellant was under her treatment for “the reported damage caused to his psychological and emotional status as a result of ongoing mental and emotional trauma he has reported experiencing during his relationship.” Based on the information the appellant provided, Ms Hendren concluded that the appellant was a victim of family violence;

(e)    an affidavit by the appellant’s mother dated 1 July 2015 (the mother’s affidavit). In summary she said that:

(i)    the appellant and the sponsor enjoyed the initial few months of their marriage, but after that the appellant informed her that he “encountered unpleasant incidents based on disagreements and arguments”. She treated them as normal for newlyweds and advised him to “be more tolerant of these events allowing time for their marriage to mature”;

(ii)    those disagreements, however, became more frequent especially during the periods when the sponsor was having university exams. They discussed the matter with the sponsor’s parents and were told it was normal for her to act in this manner, and agreed for the appellant’s mother to help the spouse during exams;

(iii)    the appellant was being subjected to “continuous mental harassments” due to the sponsors “unbecoming actions” which she characterised as family violence;

(iv)    in June 2014, she went to stay with the appellant and the sponsor and provided advice to the sponsor to try and guide her. Although she felt the sponsor was listening to her there were two serious incidents during her stay which led her to believe that her advice was having no effect;

(v)    on two occasions during her stay the sponsor left the house after having an argument with the appellant and did not return until late in the evening, with the appellant having to go out to bring her home. The appellant’s mother was “grief stricken” by this and felt that her son was being subjected to “continuous mental harassments and violence” by the sponsors “uncontrollable behaviour”;

(vi)    in November 2014 the sponsor’s parents visited her in Sri Lanka and they expressed their concern about their daughter being so unreasonable, assuring her that they would counsel the couple to undertake family counselling; and

(vii)    at that time the appellant was suffering severe depression and “fighting for his life”. He had been subjected to an “unwarranted obliteration and humiliation due to damaging action” by the spouse and also inaction by her parents.

(f)    a letter from the general manager of the appellant’s employer dated 8 July 2015, to the effect that in the period from December 2014 through to February 2015 the appellant was irregular in his performance and appeared to be under severe stress; and

(g)    a letter provided by a Buddhist priest dated 29 April 2015, to the effect that at the request of the sponsor’s parents he provided marriage counselling to the appellant and the spouse from approximately May 2014 through until early September 2014. After September 2014 only the appellant participated in the counselling.

19    On 9 July 2015 the appellant’s solicitor lodged a report by Ms Hendren dated 8 July 2015.

20    On 30 August 2015, the appellant’s solicitor lodged further materials with the Department, including:

(a)    a statutory declaration by the appellant dated 30 August 2015 (the August 2015 Declaration); and

(b)    eight statutory declarations by friends and workmates of the appellant variously dated in July and August 2015.

21    The August 2015 Declaration gave a significantly different account of the relationship between the appellant and the sponsor to that he had given in the July 2015 Declaration. In the July 2015 Declaration the appellant did not refer to any claimed emotional abuse and instead painted a picture of an essentially happy and committed marriage, albeit with some relatively minor difficulties. For example, in that declaration the appellant said:

(a)    that in February 2014, when the couple moved into the sponsor’s father’s house it was a “new beginning for us”, and they enjoy decorating the house and making it their home;

(b)    he took the sponsor for a picnic on Valentine’s Day in 2014, which was a “special day for us” and they were “looking forward to good times ahead”;

(c)    they had been thinking about getting a dog for some time but wished to wait until they were settled in their new home. In April 2014 they bought a pet dog named Tyson who was their “happiness and joy”;

(d)    they decided to open a joint savings account in or around May 2014; there is no suggestion that the decision was resulted from the constant pressure the sponsor was putting on him in relation to their finances;

(e)    at that time “life was flowing great”. They had fun attending dinners and social events as a married couple and loved having friends over to their home to entertain them. He made no mention of the sponsor’s alleged continuing harassment of him in relation to their finances, or her sending him long and provocative text messages;

(f)    in June 2014, his mother travelled to Brisbane with his brother for a short stay, and the sponsor’s parents were also living with them during that period of time. It was “a great house full of a family reunion”. He did not say that he felt “his own family unit “ was “falling apart”, that he was “depressed and panicked” nor that his mother was “grief stricken” by the sponsor’s “unbecoming conduct”;

(g)    in June 2014, the sponsor fell pregnant and he was overjoyed. However, after a long family discussion they decided to terminate the pregnancy having regard to the sponsor’s studies. He said that they “stayed strong as a couple through the hard times” and their “intimacy gained momentum after the unfortunate event of the abortion”;

(h)    in July 2014, they celebrated the first anniversary of their marriage. Although they had their ups and downs they had “come out stronger as a team” and went out for dinner to celebrate, which was “ a great night out indeed”;

(i)    “as all newly weds [sic] do we had relationship hiccups along the way” and attended couple’s religious counselling with a Buddhist priest which took place at the local Buddhist temple as well as at their home. The appellant did not say that their marriage was “falling apart” nor that both of their parents are involved in trying to “restore peace” in their marriage;

(j)    in September 2014, the sponsor came to assist the appellant during a big sales event. He did not say that in the same month the sponsor “destroyed” him emotionally by abusing him when he was sick from a “gastro bug” condition, rather that the sponsor took the responsibility of taking care of him;

(k)    the appellant did not mention that the sponsor moved out of the family home from early September 2014 until the last week of September, only returning after persistent appeals and what he described as “unwarranted apologies” by him;

(l)    in around October 2014, the couple needed assistance with “solving a few family matters” and they sought help from their parents. In November the sponsor’s parents flew to Sri Lanka for a holiday and they met the appellant’s parents and discussed family counselling to “help iron out the glitches” in the couple’s marriage to “make things seemless [sic]”. The appellant did not say that the sponsor abused him in front of a neighbour when their dog escaped such that he was reduced to tears, “emotionally wrecked”, wanted to commit suicide, and threatened to call the police because the sponsor was smashing crockery;

(m)    in December 2014, they were reunited with the sponsor’s parents in Brisbane which was “good quality family time” and “a great time”. The appellant did not say that the parents flew to Brisbane in an attempt to settle the marital situation nor that the appellant said that they witnessed the sponsor’s violent and erratic behaviour but took no steps to deal with it. Nor did the appellant say that in that period the sponsor was persistently abusing him mentally and emotionally and he was exhausted;

(n)    in late December 2014, after the sponsor’s exams were finished, the appellant and the sponsor went for a big night out in the city and “[i]t was great to see my wife enjoying after a stressful exam period” [sic]. The appellant did not mention the sponsor abused him in public when she hurt her ankle while drinking at a hotel or that later that evening she “chased me out of the house calling me names”;

(o)    in early January 2015 the couple attended some cultural and social events organised by their friends, and at that point their “intimacy was on point”, as was their social life;

(p)    as previously discussed with the spouse, he got a head start in family counselling by seeing Dr Yu on 15 January 2015 and obtaining a referral to see Ms Hendren. The appellant did not say that he was he was “depressed constantly”, “worn out” and “emotionally scarred” and that he decided to go and see a doctor himself, rather than in consultation with the sponsor; and

(q)    the sponsor went to visit her parents in Canberra in late January 2015 and he was awaiting her return. However, to the appellant’s disappointment the sponsor never returned and instead she wrote to the Department on 4 February 2015 telling the Department that they were no longer in a marriage and officially ended their relationship.

22    In an affidavit made 16 July 2015 in the divorce proceeding (the sponsor’s affidavit), the sponsor deposed that she and the appellant separated in July 2014. On her account, they had remained living in the same house because she was an unemployed student and the house was owned by her father. She had nowhere else to live and neither did the appellant. The sponsor also said the appellant refused to leave. She deposed that she and her family took the initiative and moved the appellant’s belongings into separate rooms of the house; that they then used different toilet and bathroom facilities and locks were placed on the doors of the rooms. She said that she did not provide food or meals to the appellant, he did his own laundry, and he only cleaned his own room. She said they did not communicate with each other on a regular basis, she avoided being in the same area of the house with the appellant, and she made it clear to the appellant that they were no longer husband and wife.

23    In an affidavit made 16 July 2015 in the divorce proceeding (the sponsor’s father’s affidavit), the sponsor’s father deposed that from February 2013 he and his wife casually visited the couple from time to time. He noticed they had disagreements and over time noticed that the “emotional connection between the couple had deteriorated”. He said that the sponsor and the appellant decided to separate and live under the same roof from July to September 2014. During that period he noticed that they slept in separate rooms of the house, there was friction between them, and they carried out their domestic duties independently of each other. For example they took dinner separately, did their laundry separately and the appellant left the house for entertainment and would come home late in the evening under the influence of alcohol. He said “I believe the lies and deceit and changes in attitudes [sic] led to their misunderstandings and ultimately their separation” He also said that while the couple were civil to each other they were “aware of a pending divorce”.

24    On 12 July 2016, the Federal Circuit Court made a divorce order on the application of the sponsor, which took effect on 13 August 2016.

The delegate’s decision

25    On 4 November 2015, a delegate of the Minister refused to grant the appellant the visa. The delegate was not satisfied that the appellant met cl 801.221(6)(b) of Schedule 2 to the Regulations, because the appellant was not the spouse or de facto partner of the sponsor prior to their relationship ceasing. Accordingly, the delegate concluded that he was not required to consider the claim of family violence.

26    It is unnecessary to go to the detail of the delegate’s decision as it has been superseded by that of the Tribunal.

The Tribunal decision

27    On 24 November 2015, the appellants filed an application in the Tribunal for review of the delegate’s decision. On 3 February 2017, the Tribunal held a hearing at which the appellant was represented by his solicitor and migration agent. The appellant and two other witnesses gave evidence. The sponsor did not give evidence or make submissions.

28    On 17 February 2017, the Tribunal affirmed the delegate’s decision.

29    The Tribunal observed (at [25] of its reasons) that the central issue in the case was whether the parties were in a genuine spousal relationship at the time of the claimed onset of family violence in March 2014, and if so, whether the appellant is in fact a victim of family violence as defined in regulations 1.21 and 1.23.

30    The Tribunal accepted that the sponsor was the sponsoring partner of the appellant (at [26]) and referred (at [27]) to the definition of “spouse” in s 5F(1) and the definition of “married relationship” in s 5F(2) of the Act.

31    The Tribunal also referred (at [27]) to the mandatory considerations under regs. 1.15A(2) and (3) of the Regulations which required the Minister to take into account “all the circumstances of the relationship” including the matters specified in reg 1.15A(3).

32    The Tribunal set out the background to the making of the partner visa application (at [7]-[10]) and summarised the appellant’s claim and evidence (at [11]-[20]) and also the sponsor’s claims to the Department and in her divorce proceedings (at [22]-[24]).

33    The Tribunal was satisfied on the evidence that the parties were married to each other under a marriage that is valid for the purposes of the Act, as required by s 5F(2)(a) (at [28]).

34    The Tribunal considered the financial aspects of the relationship (at [29]-[32]). It found that there was no evidence of any joint ownership of assets or joint liabilities or legal obligations owed to the other party. Asked in the hearing about wills, superannuation or joint loans the appellant said that they had not got that far in their relationship. Against that the appellant said that one of the main causes of his unhappiness and resentment in the relationship was the sponsor’s lack of recognition and gratitude for his financial contributions of the household. He said that she expected him to pay for everything and yet he was criticised for his earning capacity (at [30]). The Tribunal noted that the appellant considered it was his responsibility to provide for his wife while she was a student.

35    The Tribunal found that the transactions of the parties’ joint bank account from November 2014 to January 2015 showed a number of fund transfers between bank accounts “but too few transactions and too little an average amount in the black (about $100) to provide evidence of any pooling of financial resources or sharing of day to day household expenses.” The Tribunal noted that the appellant provided a copy of his debit card and an invoice to show that he paid $23 for spark plugs for the sponsor’s car on 1 November 2014.

36    The Tribunal then considered the nature of the household and the parties’ living arrangements (at [33]-[36]). The Tribunal noted the appellant’s claim that the parties lived together from November 2012 at three different addresses. He said that for much of this time they lived with one or two of the sponsor’s cousins, and, in February 2014, they moved into a house owned by her father in Springfield in Brisbane.

37    The Tribunal found that, other than the appellant’s claim that he did 90% of the cooking and cleaning when they were living together in 2014 (at [34]), there was no evidence regarding the nature of the households that the parties lived in. It noted that the sponsor’s father claimed that when he visited the couple in February 2013 they are emotionally distant, and that the appellant’s mother claimed that during her visit in June 2014 the household was dysfunctional with the sponsor behaving unacceptably and leaving to stay with friends and family. It also noted that the sponsor and her father claimed in sworn statements provided in the divorce proceedings that from July 2014 the couple lived separate lives while living under the same roof, and they did not share their money or cook or shop or clean for each other.

38    The Tribunal considered the social aspects of the relationship (at [37]-[40]). The Tribunal was satisfied from photographs of the couple’s wedding that they were recognised at that time as married. However, the Tribunal found the evidence of their parents’ efforts to organise marriage counselling just a few months after the party returned to Australia showed that their parents were aware that the marriage was not successful.

39    The Tribunal considered the nature of the appellant’s and sponsor’s commitment to each other (at [41]-[42]). The Tribunal referred to evidence in the form of printouts of Facebook pages and text messages which tended to show that the parties were in some sort of relationship in June, July and August 2014. On one occasion the couple appear to be organising to each pay half the cost for a termination of the pregnancy and the sponsor signed off “Love you”. On another occasion the sponsor appeared to be apologising for embarrassing and hurting the feelings of the appellant and asking “if they can still be friends”.

40    The Tribunal concluded as follows (at [43]-[49]:

[43]    The Tribunal accepts that the parties willingly participated in their traditional arranged marriage in Sri Lanka in July 2013 and that they were recognised by family and friends in Sri Lanka and Australia as married. The Tribunal is not satisfied that the parties were still in a mutually committed spousal relationship in March 2014 when the applicant claimed he suffered the first incident of family violence.

[44]    The Tribunal is not satisfied that the parties ever pooled or willingly shared their finances commensurate with an established married relationship. The Tribunal accepts that the parties have lived in the same house, but is not satisfied that they ever established their own household as a couple in a mutually committed and ongoing relationship. The Tribunal accepts that the parties had mutual friends, and that they may have continued to socialise with these friends while living in the same house, but does not accept this as persuasive evidence that they lived together in a genuine and ongoing spousal relationship.

[45]    In light of the detailed affidavits provided by the sponsor and her father in the divorce proceedings stating that the parties lived separate lives from July 2014, the Tribunal does not find persuasive the written statements provided by the applicant's friends in which they all confirm that they had met the sponsor and they all state that they believed that the parties were in a genuine spousal relationship until late January or early February 2015.

[46]    The Tribunal is not satisfied that at the time of the claimed onset of family violence in March 2014 the parties had a mutual commitment to shared life to the exclusion of others, were in a genuine and continuing relationship, and lived together and not separately and apart on a permanent basis.

[47]    The applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl. 801.221(2A), (3), (4), (5) or (8).

[48]    As the Tribunal is not satisfied that the applicant was in a genuine spousal relationship with his sponsor at the time of the onset of the claimed family violence, it finds that the applicant does not meet subclause 801.221(6)(b).

[49]    For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

The Federal Circuit Court decision

41    The appellant filed an application to the Federal Circuit Court for judicial review of the Tribunal decision. By a Further Amended Application, for which leave was given on 12 March 2020, the appellant raised the following ground of judicial review:

The Tribunal erred in failing to consider, in the sense of directing an active intellectual process to, evidence fundamental to its assessment of whether the applicant and his former spouse were in a relationship which met the criteria in ss 5F(2)(b) and (c) of the Migration Act.

Particulars

(a)    Evidence that the applicant's former spouse was a full time student and not in employment at all times during their relationship, which was relevant to the Tribunal's assessment of the financial circumstances of the relationship.

(b)    Evidence contained in the following documents which was consistent with the parties to the marriage being in a genuine relationship;

(i)    The spouse's statement at CB 77 that at the time of lodgement of the visa application (Nov 2013) the relationship was genuine.

   (ii)    The applicant's statement at in particular at CB 266-268.

   (iii)    The applicant's mother's statement at CB 239-41.

   (iv)    A psychologist's statutory declaration at CB 235-6.

(c)    Affidavits of the applicant's spouse and her father made for the purpose of the divorce proceedings.

42    The primary judge heard the application on 12 March 2020. The appellant was represented by counsel in the hearing.

43    On 20 April 2020, the primary judge dismissed the application.

44    The reasons for judgment reveal that the appellant submitted that the Tribunal’s conclusion that it was not satisfied that the parties pooled their financial resources “commensurate with an established married relationship”, ignored the fact that the sponsor was a full-time student for the duration of the relationship and ignored the appellant’s evidence that he was looking after all her needs. The primary judge did not accept that submission and found (at [18]):

The summary of the Tribunal’s findings set out earlier in these reasons evidences that the Tribunal was aware of the support that the applicant alleged he provided, or sought to provide, to the Sponsor. However, it decided on the facts that other evidence, which indicated that their financial life was not a joint enterprise, was more persuasive. No reviewable error arises out of it having done so.

45    The appellant further submitted that the Tribunal’s conclusion that it was not satisfied that the appellant and the sponsor ever “established their own household as a couple in a mutually committed and ongoing relationship” ignored:

(a)    the sponsor’s statement that at the time of lodgement of the visa application in November 2013 the relationship was genuine;

(b)    the appellant’s August 2015 Declaration which was consistent with there having been a genuine spousal relationship;

(c)    the mother’s affidavit which is consistent with there having been a genuine spousal relationship, albeit one in difficulty; and

(d)    the Psychologist’s Declaration in which Ms Hendren stated that in her professional opinion the appellant was the victim of family violence perpetrated by his wife.

46    The primary judge found, however, that the Tribunal had accepted that the couple’s marriage had been genuine and had remained on foot for a period. The remaining issue for the Tribunal was whether the spousal relationship was on foot as at 14 March 2014 when the family violence was claimed to have commenced. In his Honour’s view (at [21]-[24]):

(a)    the sponsor’s statement to the effect that the marriage and relationship was genuine at the time of lodgement of the visa application did not assist the appellant as the Tribunal had accepted that fact;

(b)    the appellant’s August 2015 Declaration described the couple’s relationship but “said nothing substantive about how their household operated other than that the sponsor had cared for the applicant on one occasion when he was ill and they had bought a dog. If the Tribunal said nothing about this statement in the context of the couple’s household, it was because there was nothing useful to rehearse”;

(c)    the mother’s affidavit said nothing about the couples’ household, and did not evidence error by the Tribunal; and

(d)    the Psychologist’s Declaration said nothing about the couple’s household and did not show error by the Tribunal.

47    His Honour said that it would be inappropriate to conclude that the evidence to which the appellant referred was missed by the Tribunal. He said that the appropriate conclusion was that the evidence was not mentioned because it was not considered material to the issue in question.

48    The appellant argued before the primary judge that the Tribunal misconstrued the evidence in stating that the sponsor’s father had claimed that when visiting the couple from February 2013 he had noticed they were “emotionally distant”. The appellants said that in fact the sponsor’s father had said that when he visited the couple he noticed there were “disagreements” and that “over time we noticed that the emotional connection between the couple had deteriorated”. The primary judge rejected the appellant’s argument (at [27]) on the basis that it read the Tribunal’s reasons with an eye keenly attuned to error. His Honour noted that the Tribunal had recorded the father’s statement that he had noticed “deterioration in their emotional connection” which he considered to be fair paraphrase of the relevant evidence.

49    The appellant contended below that the Tribunal had also misconstrued the evidence in stating that the sponsor and her father had claimed that the “parties lived separate lives while living under the same roof from July 2014, and that although they remained civil they did not share their money or cook or shop or clean for each other.” The appellant said that all the sponsor had relevantly said in her affidavit was that there were fewer family outings and shared activities after the couple’s separation in July 2014, and that she did not say that there were no outings at all. The primary judge did not accept this and referred (at [29]) to the Tribunal’s reference to the “detailed affidavits” provided by the sponsor and her father in the divorce proceedings in which they said that the parties had lived separate lives from July 2014. His Honour said it was open to the Tribunal to prefer some of the evidence (by which I infer his Honour is referring to the affidavits in the divorce proceeding) over other evidence provided by the appellant’s friends and colleagues in which they said that the parties were in a genuine spousal relationship until late January or early February 2015.

50    The primary judge found that the appellant had failed to demonstrate jurisdictional error, and dismissed the application.

THE APPEAL TO THIS COURT

51    On 18 May 2020, the appellant filed a notice of appeal to this Court.

52    At the hearing of the appeal on 11 December 2020, the appellant sought and was granted leave to file an amended notice of appeal dated 1 December 2020 containing six grounds.

CONSIDERATION

Grounds one and two

53    Grounds one and two of the appeal allege as follows:

1.    The Court Below [sic] erred (at AB 575 [18]) in holding that the second respondent (the Tribunal) was aware of the appellant’s claim that he provided for his spouse’s financial and other needs whilst she was a student, but decided on the facts that other evidence which indicated that their financial life was not a joint enterprise, was more persuasive.

2.    The Court should have found that the Tribunal was aware of the appellant’s above claim, but that it did not lawfully consider the claimed support provided by the appellant to his spouse in the context of the financial circumstances of the relationship, and that the failure to consider constituted jurisdictional error.

54    Under grounds one and two the appellant argued that the Tribunal erred in failing to consider, in the sense of giving active intellectual consideration to, the appellant’s evidence about the level of financial support he provided to the sponsor, and that the primary judge erred (at [18]) in failing to so find. His Honour said (at [18]) that the Tribunal was aware that the sponsor was a full-time student, and that the appellant claimed to have financially supported her, but held that the Tribunal decided on the facts that other evidence, that indicated that their financial life was not a joint enterprise, was more persuasive.

55    The appellant argued that, apart from the Tribunal’s finding that the records of the parties’ joint bank account were insufficient to show that they pooled their financial resources, it made no findings at [29]-[32] as to whether or not the financial circumstances of the relationship favoured or did not favour the appellant’s case. He submitted that the Tribunal’s finding was confined to the statement (at [44) that it was “not satisfied that the parties ever pooled or willingly shared their finances commensurate with an established married relationship”.

56    The appellant contended that the fact that the sponsor was a full-time student and was supported by him was obviously relevant to their ability to share their finances, and relevant to the financial circumstances of the relationship. He argued, and it is uncontentious, that the Tribunal was required to consider, in the sense of directing an active intellectual process to, the evidence and material before it relevant to the decision required to be made: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46] (Griffiths, White and Bromwich JJ); Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 at 462 and 495 (Black CJ, Burchett and Kiefel (as her Honour then was) JJ); Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] (Robertson J).

57    In addition to relying on the matters in his August 2015 Declaration the appellant noted that his oral evidence before the Tribunal included the following:

(a)    “…I had to give her money, because we were a one income family. She was a full-time student and I was the main income provider. So to have her properly placed, I decided to have…a joint bank account and have two cards so I could put money in to that account and she can utilise it whenever she wants”: CB 33;

(b)    “…we’re a one income family. It is not feasible for me to pay the rent, pay the bills and pay her expenses and run a household and save up for a house, all right, and then she was - she constantly compared us to her sister”: CB 33;

(c)    that their utility bills and internet bills were in joint names, and they had the joint bank account: CB 34; and

(d)    that his salary went into the joint account. Occasionally the sponsor put money into the account when she was given pocket money by her father but mainly it was his income that went into it: CB 35.

58    In his August 2015 Declaration the appellant also said that from February 2014 he was paying rent of $350 per week, plus electricity, water and internet bills. He said that one of the sponsor’s cousins paid a share of the rent ($115 per week) for the period he lived there, but otherwise the appellant paid all of the rent and financially looked after all of the needs of the sponsor including food and expenditure in relation to her studies.

59    The appellant contended that, contrary to the primary judge’s finding (at [18]), the Tribunal’s reasons do not indicate that it preferred other evidence to the appellant’s evidence that he supported the sponsor. He argued that the Tribunal did not say that it preferred other evidence to that of the appellant and there is no indication in the Tribunal’s reasons that it weighed the appellant’s evidence. Instead, the appellant argued that his evidence of the financial support he provided to the sponsor did not figure in the Tribunal’s reasoning which led to its conclusions. He contended that it should be inferred that the Tribunal failed to consider relevant evidence and therefore fell into jurisdictional error.

60    I am not persuaded that the Tribunal fell into error as alleged.

61    The Tribunal’s reasons (at [8]) show that it was aware that the sponsor was a full-time student. Its reasons (at [30]) show that it was aware that the appellant claimed that he was expected to “pay for everything” and saw it as his responsibility to provide for his wife while she was a student. The Tribunal also noted (at [30]) the appellant’s evidence that the requirement for the appellant to pay all the household expenses was “one of the main causes of his unhappiness and resentment in the relationship.” He said that he felt “emasculated” by the sponsor’s “demands and expectations” in relation to the finances.

62    The Tribunal concluded however (at [31]) that the evidence in relation to the transactions on the parties’ joint bank account showed too few transactions and too little an average amount in the black to provide evidence of any pooling of financial resources or sharing of day-to-day household expenses. That gap in the evidence was on top of the absence of any evidence of any joint ownership of assets or joint liabilities or joint legal obligations, and the absence of any evidence of joint wills, superannuation or joint loans, to which the Tribunal referred. Under regs. 1.15A(2) and (3)(a), in determining whether the appellant and the sponsor were in a spousal relationship, the Tribunal was required to consider “all of the circumstances of the relationship” including the financial aspects. The relevant financial aspects under reg. 1.15A(3)(a) are:

(a)    any joint ownership of real estate or other major assets (in relation to which the Tribunal found there was no evidence (at [29]));

(b)    any joint liabilities (in relation to which the Tribunal found there was no evidence (at [29]));

(c)    the extent of any pooling of financial resources, especially in relation to major financial commitments (in relation to which the Tribunal was not satisfied that the appellant and the sponsor pooled their finances commensurate with a spousal relationship (at [44]));

(d)    whether one person in the relationship owes any legal obligation in respect of the other (into relation to which the Tribunal found there was no evidence (at [29])); and

(e)    the basis of any sharing of day-to-day household expenses (in relation to which the Tribunal found the evidence was insufficient to show sharing of day-to-day household expenses (at [30]).

63    In my view those matters underpinned the Tribunal’s conclusion (at [44]) that it was not satisfied that the appellant and the sponsor pooled or willingly shared their finances commensurate with an established married relationship.

64    The Tribunal’s statement that there was no evidence of any joint liabilities was incorrect, as there was evidence before the Tribunal of joint utility bills and pet insurance that the sponsor had tried to transfer into the appellant’s name in January or February 2015. Even so, on a fair reading of the Tribunal’s reasons, I consider it did not reject the appellant’s claim that he paid for most things. Instead, having regard to the requirements of regs. 1.15A(2) and (3)(a), it was not persuaded that the evidence as to the financial aspects of the relationship supported a finding that the appellant and the sponsor were in a spousal relationship. While it is correct that the Tribunal did not make an express finding as to whether or not the appellant financially supported the sponsor, it is sufficiently clear that the Tribunal understood that. On a fair reading of its reasons I am not persuaded that it is appropriate to infer that that it failed to give active intellectual consideration to that evidence.

65    I am therefore not satisfied that that it fell into jurisdictional error as alleged. I can discern no error in the primary judge’s conclusion in that regard.

66    Grounds one and two of the appeal shall be dismissed.

Ground three and four

67    Grounds three and four of the appeal alleges follows:

1.    The Court erred in finding (at AB 576 [21]-[22]) that the appellant’s spouse’s statement (now at AB 157) and the appellant’s statement (now at AB 346-348) were not relevant to the issue of the nature of the marital household and that any failure to consider that evidence did not result in reviewable error.

2.    The Court should have found that the statements of the appellant and his spouse at AB 346-348 and AB 157 respectively, were both relevant to the issue of the nature of the marital household and were not lawfully considered, and that the failure to consider constituted jurisdictional error.

68    Under these grounds the appellant alleged that the Tribunal erred in failing to consider, in the sense of failing to give active intellectual consideration to:

(a)    the sponsor’s statement dated 21 October 2013 attesting to the genuineness of the relationship and the marriage as at that time; and

(b)    the appellant’s August 2015 Declaration to the effect that he was in a genuine relationship with the sponsor from August 2012, and in a committed marriage from July 2013 until February 2015 when he was informed by the Department that the sponsor had notified it that their relationship had ended;

and that the primary judge erred (at [21]-[22]) in failing to so find.

69    The primary judge dealt with this submission below, as follows. His Honour noted (at [20]) the applicant’s submission that, along with two other items of evidence, the sponsor’s statement and the appellant’s August 2015 Declaration were “highly relevant” to the question whether a genuine spousal relationship existed as at March 2014. His Honour did not though accept that this evidence was relevant or even material.

70    In relation to the sponsor’s statement, the primary judge said (at [21]):

It was observed earlier that the Tribunal accepted that the couple’s marriage had been genuine and had remained on foot for a period. The relevant, remaining issue for the Tribunal was whether the spousal relationship was on foot in March 2014, when family violence allegedly occurred. The statement referred to in particular 1(b)(i) [being the sponsor’s statement] was not relevant to that issue and so even if the Tribunal had not had regard to it, that would not have been an error.

71    In relation to the August 2015 Declaration, his Honour said (at [22]):

As to particular 1(b)(ii) [being the August 2015 Declaration], the applicant’s statement reproduced at pages 266-268 of the Court Book described the couple’s relationship but said nothing substantive about how their household operated other than that the Sponsor had cared for the applicant on one occasion when he was ill and they had bought a dog. If the Tribunal said nothing about this statement in the context of the couple’s household, it was because there was nothing useful to rehearse.

72    More generally, the primary judge said (at [24]):

If the contents of the documents referred to by the applicant had been relevant to how the couple’s household was established and ran, then a failure to discuss them might have grounded a finding that they had not been considered. However, as the Tribunal was under no duty to refer to evidence which was not the foundation of findings of fact, such an inference would not be appropriate in relation to the documents cited by the applicant. The appropriate conclusion is that they were not mentioned because they were not considered material to the issue in question.

73    As I said in DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072 at [43] and [45]-[48]:

[43]    Section 54(1) [of the Act] means that it is mandatory for the Minister to “have regard to” the information that the applicant provides to the Minister through his submissions and further submissions. Compliance with the obligation under s 54(1) is a jurisdictional requirement: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 (Singh) at [53] (Sackville J).

…

[45]    The Minister was accordingly required to “have regard to” those matters. This required the Minister to engage in a real process of consideration of the information submitted, that is, an “active intellectual process directed at the information”: Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 1726 (Tickner) at 462 (Black CJ); Singh at [59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46] (Hill, Madgwick and Conti JJ). The extent of the active intellectual process depends on the nature and relevance of the information: Singh at [59]; Tickner at 462-463. It is not enough for the Minister merely to be aware of the information, and the duty under s 54(1) will not have been discharged where no realistic regard is had to the information: A v Pelekanakis (1999) 91 FCR 70; [1999] FCA 236 at [50] (Weinberg J); Singh at [59].

[46]    Whether the Minister failed to have regard to the considerations alleged is a question of fact, and the applicant bears the onus of establishing the failure on the balance of probabilities: Singh at [60]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [67], [91]-[92] (Gummow, Heydon and Crennan JJ).

[47]    The evidence before the Minister must be considered as a whole. The Minister’s reasons should not be reviewed “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Singh at [65].

[48]    The fact that a decision makes no, or only a passing, reference to a relevant consideration does not necessarily mean that the decision-maker did not consider the matter at all. The Minister may give little or no weight to a relevant matter after having considered it, and this may explain a lack of reference to the matter rather than a failure of consideration: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (ARG15) at [65] (Griffiths, Perry and Bromwich JJ) citing SZGUR at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34] (Katzmann, Griffiths and Wigney JJ). However, as the Full Court said in SZSRS at [34]:

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

See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52] (Kenny, Griffiths and Mortimer JJ).

The same is, of course, true of the Tribunal and its reasons.

74    In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.

75    It is common ground that the Tribunal’s reasons made no reference to the sponsor’s statement. The Minister submitted however that it would not be appropriate to infer that the Tribunal had failed to consider either that statement or the August 2015 Declaration when:

(a)    the sponsor’s statement merely attested to the genuineness of the couple’s relationship up to October 2013, and there was nothing in it which was inconsistent with the Tribunal’s finding that there was not a genuine spousal relationship as at March 2014; and

(b)    the August 2015 Declaration was consistent with the appellant’s evidence to the Tribunal that he considered the marriage to be ongoing until he was notified in February 2015 that his sponsorship had been withdrawn.

76    On the Minister’s argument, there is no basis in the Tribunal’s reasons to suggest that either the sponsor’s statement or the August 2015 Declaration was overlooked or not considered by it, to the extent that it bore on whether there was a genuine spousal relationship in March 2014. The Minister said that it not necessary for the Tribunal to refer to every piece of evidence relied on by the appellant, nor was it required to give a “line by line refutation” of the appellant’s claims: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French J (as his Honour then was), Sackville and Hely JJ); Re Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]-[67] (McHugh J); Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [48]-[49] (Besanko, Barker and Bromwich JJ).

77    While the Minister did not embrace the primary judge’s statement (at [24]) that the sponsor’s statement and the August 2015 Declaration were not material to the issue as to whether a spousal relationship existed in March 2014, the Minister nevertheless maintained that it was not appropriate to infer that either was not considered by the Tribunal.

78    I take a different view.

79    In the sponsor’s statement she said that in August 2012 it was agreed that the appellant would move to Queensland to live with her relatives in an apartment in Brisbane, and the sponsor stayed with him every weekend. Then, towards the end of 2012 she moved into the apartment with the appellant. In July 2013, they were married in Sri Lanka. In late October 2013 she stated that they were “very happy together and as a couple we have grown up and matured.” The sponsor’s statement was unchallenged evidence that the couple were in a relationship from August 2012; they lived together from November 2012; they were validly and genuinely married in July 2013; and that they had a genuine spousal relationship to at least the end of October 2013. The Tribunal accepted that the couple were in a genuine spousal relationship as at the date of the sponsor’s statement on 21 October 2013, and that they continued in such a relationship for a period thereafter. The sponsor’s statement tended to corroborate the appellant’s evidence that the couple had a genuine spousal relationship in the months immediately before March 2014.

80    The sponsor’s statement was relevant to whether or not the Tribunal was satisfied as to the existence of a spousal relationship as at March 2014, just over four months after it was made. Yet the Tribunal made no reference whatsoever to it. I am satisfied that the Tribunal failed to consider the sponsor’s statement, in the sense of give active intellectual consideration to it.

81    The Tribunal’s failure is clearer in relation to the appellant’s August 2015 declaration. That declaration contained the following matters which were relevant and material to the existence of a spousal relationship before, during and after March 2014:

(a)    in August or September 2012, the appellant moved to Brisbane to live with the sponsor by her invitation and with the approval of her parents. The couple lived at the sponsor’s cousin’s house in Bowen Hills where they had their own room;

(b)    in July 2013, the couple married in Sri Lanka;

(c)    in February 2014, they moved into the sponsor’s father’s house in Springfield, for which the appellant paid the weekly rental of $350. Their friends in Brisbane were really happy and most of them came to assist with the move. That was “a new beginning” for the couple and they were both “very excited for the future” and enjoyed decorating the house and making it their home;

(d)    in April 2014, they bought a pet dog named Tyson, who was their “happiness and joy”;

(e)    in June 2014, the appellant’s mother and his brother came to stay with them for a short while. The sponsor’s parents also lived with them during that period of time. It was a great house “full of a family reunion”;

(f)    in June 2014, the sponsor fell pregnant. After a long family discussion the couple made the difficult decision to terminate the pregnancy. In this period they “stayed strong as a couple through the hard times” and their “intimacy gained momentum after the unfortunate event of the abortion”;

(g)    during September 2014 the appellant fell ill and the sponsor took responsibility for taking care of him;

(h)    in September 2014, the sponsor came to the appellant’s workplace to help him out during a big sales event; and

(i)    in early 2015 their “intimacy was on point” as was their social life.

82    That evidence was relevant and probative to show that a genuine spousal relationship existed before, during and after March 2014, yet the Tribunal did not refer to it in its reasoning:

(a)    under reg 1.15A3(b) which culminated in its statements about the nature of the household (at [33]-[36]); or

(b)    under reg 1.15A3(d) in regard to the nature of the couple’s commitment to each other, which culminated in its statements (at [41]-[46]).

83    I accept the Minister’s contention that the Tribunal set out much of the evidence from the August 2015 Declaration upon which the appellant relied, but that does not show that the Tribunal engaged in a real process of consideration of that evidence. The Tribunal did not, for example, give real consideration to the appellant’s evidence that:

(a)    the sponsor fell pregnant in June 2014, which indicated that the couple were still in a sexual relationship in March 2014;

(b)    that the couple “stayed strong” through the difficult decision to terminate the pregnancy in June 2014, that their intimacy “gained momentum” after the termination;

(c)    that they were still being intimate in early 2015.

That evidence was contrary to the affidavits of the sponsor and her father in the divorce proceeding but the Tribunal did not expressly state that it preferred those affidavits to the appellant’s declaration or why. It did not weigh the competing evidence. The Tribunal only said (at [45]) that it preferred the affidavits of the sponsor and her father to the written statements provided by the applicant’s friends.

84    The Tribunal’s consideration in relation to the nature of the couple’s household, including their living arrangements, was limited to the following (at [33]-[36]):

(a)    the places where the couple had lived over the period of their relationship (at [33]);

(b)    that there was no evidence regarding the nature of the household other than the appellant’s claim that he did 90% of the cooking and cleaning when the couple were living together in 2014, because the sponsor was studying (at [34]);

(c)    that the sponsor’s father claimed in his affidavit in the divorce proceeding that when he visited the couple from February 2013 they were “emotionally distant”, and the appellant’s mother claimed that when she visited in June 2014 the household was “dysfunctional” with the sponsor “behaving unacceptably and leaving to stay with friends and family”(at [35]); and

(d)    noted that the sponsor and her father had both claimed in sworn statements in the divorce proceedings that from July 2014 the parties lived separate lives while living under the same roof, and although they remained civil and did not share their money. or cook, or shop, or clean for each other (at [36]).

85    The Tribunal’s consideration in relation to the nature of the couple’s commitment to each other (which includes the duration of their relationship; the length of time they lived together and the degree of companionship and emotional support they drew from each other) was limited to the following (at [41]-[42]):

(a)    that there was evidence in the form of printouts of several Facebook pages and text messages that the couples were “in some sort of relationship in June, July and August 2014”. On one occasion the parties were agreeing to each pay half the cost of the termination of the sponsor’s pregnancy and the sponsor signed off “love you”. On another occasion the sponsor appeared to be apologising for embarrassing and hurting the appellant’s feelings and asking if they can still be friends (at [41]); and

(b)    that the appellant said that although he was humiliated and abused by the sponsor, and was unhappy in the relationship, he remained committed to it until he was advised that the sponsor had withdrawn her sponsorship. He acknowledged that the sponsor might have lacked commitment to the relationship but reiterated his belief that nevertheless it was genuine (at [42]).

86    The Tribunal’s reasons do not reveal any consideration of the evidence in the August 2015 Declaration relevant to the couple’s commitment to each other during and after March 2014. For example, the Tribunal did not give real consideration to the appellant’s evidence that:

(a)    in March 2014 the couple were still in a sexual relationship (which can be inferred from the sponsor's pregnancy in June 2014)

(b)    in April 2014 the couple purchased a dog together which the appellant described as their “happiness and joy”;

(c)    in June 2014 the couple and their families had a happy family reunion;

(d)    in June 2014 the couple “stayed strong” through the difficult decision to terminate the pregnancy, that their intimacy “gained momentum” after the termination; and

(e)    their intimacy remained “on point” in early 2015.

87    Nor did Tribunal consider the matters in the August 2015 Declaration alongside the photographs and social media screenshots provided by the appellant, which also tended to show that the couple remained in a spousal relationship well after April 2014. That included the following:

(a)    a screenshot of a profile update on Facebook dated 9 April 2014, which tagged the appellant, that said: “Got a German Shepard Named TYSON”;

(b)    a screenshot of a text message from someone named “Uncle Edward” dated 11 June 2014 (which I infer is the sponsor’s father) which said “[the sponsor] needs you care and attentipn [sic] at this time to come over [sic] her exam stress…” to which the appellant replied: “No worries uncle. Will do. She does get stressed during her exams. We both need to realise it’s only a temporary thing”;

(c)    a text message from the sponsor to the appellant on or around 19 or 20 June 2014 saying that she was sorry for “us both” that the termination of pregnancy was happening, which she signed off “love you”;

(d)    a Facebook message from the sponsor to the appellant on 21 July 2014 in which she said she wanted to have a fun day together and signed off “feeling in love”;

(e)    photographs dated 14 July 2014 in which the appellant gave the sponsor flowers and they went out for dinner together, one of these photos show the couple kissing;

(f)    a screenshot of photographs of the couple out socialising with friends dated 15 July 2014;

(g)    photographs of the couple socialising and kissing dated 29 July 2014;

(h)    photographs of the couple socialising and cuddling for the photograph dated 10 August 2014;

(i)    a screenshot of text messages from the sponsor to the appellant on 13 August 2014 in which she said “hi, I miss U” and apologised for hurting his feelings that day;

(j)    photographs of the couple out for dinner on 16 August 2014 and on a trip to the country dated 17 August 2014;

(k)    photographs of the couple out for dinner with friends dated 16 September 2014;

(l)    screenshots of photographs of the couple socialising at a friend’s birthday party on 15 September 2014;

(m)    screenshots of photographs of the sponsor and the appellant participating in a Sri Lankan dance dated 28 September 2014;

(n)    a photograph of the appellant, the sponsor and the sponsor’s father having a meal at home together dated 24 October 2014; and

(o)    a screenshot indicating that the couple and two friends went out to a hotel in Red Hill, Queensland for “post-exam madness” on 23 November 2014.

88    The Tribunal briefly referred to the text messages and screenshots (at [41]) but found only that they showed that the couple was in “some sort of relationship” in June, July and August 2014. The Tribunal was required to properly engage with the evidence before deciding that the spousal relationship had ceased by March 2014. Yet, amongst other things, the Tribunal did not consider whether or how the photographs and screenshots corroborated the August 2015 Declaration, nor how the appellant’s evidence in total should be weighed against the affidavits in the divorce proceeding in which the sponsor and her father deposed that the couple separated in July 2014, that they did not communicate with each other on a regular basis, that she avoided being in the same area of the house with him, and that she made it clear they were no longer husband and wife. The Tribunal did not consider how the photograph of the appellant, the sponsor and the sponsor’s father having a meal at home together on 24 October 2014 should be weighed against the father’s affidavit that from July 2014 the couple took dinner separately. Although the Tribunal was plainly aware of the photographs and screenshots it failed to consider that evidence alongside the August 2015 Declaration.

89    Another indication that the Tribunal failed to engage in an active intellectual process in relation to the August 2015 Declaration is that it did not weigh that declaration against the appellant’s inconsistent statements in his July 2015 Declaration. In the July 2015 Declaration the appellant made a series of statements capable of founding a conclusion that the sponsor was not committed to an ongoing spousal relationship, including that she repeatedly sent rude and abusive text messages to the appellant, she labelled him a “low-grade provider” which hurt him, she told him to get “a real job”, she humiliated him on Facebook, she repeatedly harassed him in relation to their finances, she picked fights about insignificant matters, and she reduced him to tears in front of a neighbour. It tended to show that the couple’s relationship was in serious difficulties from much earlier than the appellant said in the August 2015 Declaration.

90    In the August 2015 Declaration the appellant painted a picture of a marriage which had some relatively minor difficulties, characterised as “hiccups”, and in which the couple continued to have many happy times together. It contained no hint of the serious and ultimately insoluble problems which the July 2015 Declaration indicated arose because of the sponsor’s attitude and behaviour. For example, the August 2015 Declaration described the period in June 2014 when both the appellant’s mother and the sponsor’s parents stayed with the couple in Brisbane as “a great houseful of a family reunion”. In contrast, in the July 2015 Declaration the appellant said that his mother came to stay for 45 days in order to give some marital guidance to the sponsor, and while his mother was there the sponsor picked two large fights with him about insignificant matters. He said that the sponsor’s behaviour in that period was so bad he felt their “family unit” was falling apart and he was “depressed and panicked” by what the appellant’s mother described as the sponsor’s “unbecoming conduct”. The Tribunal’s reasons did not refer or weigh these or the many other inconsistencies between the two declarations by the appellant.

91    The absence of proper consideration of the evidence as to the nature of the couple’s relationship; their commitment to each other and the length of their relationship can also be seen in other parts of the Tribunal’s reasons. For example, the Tribunal said (at [35]) that in his affidavit the sponsor’s father said that when he visited the couple from February 2013 they were “emotionally distant”. That was wrong. The father said that he and his wife visited the couple “from February 2013” and that “over time we noticed” that their emotional connection had deteriorated. He did not say that they were emotionally distant in February 2013, nor did he say when that emotional distance developed.

92    In another example, the Tribunal said (at [45]) that in light of the “detailed affidavits” of the sponsor and her father in which they said the couple had lived separate lives from July 2014, the Tribunal did not find the written statements provided by the appellant’s friends to be persuasive. First, on no view could those two very short affidavits be properly described as “detailed”. Second, the Tribunal failed to note that the materials before it showed that the sponsor’s evidence as to when the couple commenced to lead separate lives was quite inconsistent. The materials showed that:

(a)    on 2 December 2014, the sponsor emailed the Department to enquire what would happen to the appellant’s visa and residency status if the couple were to separate “very soon”. That would date the couple’s separation at December or later;

(b)    on 4 February 2015, the sponsor emailed the Department informing it of the breakdown of the relationship, stating that the couple had been separated for six months and awaiting divorce. That would date the couple’s separation as having occurred in August 2014;

(c)    on 16 July 2015, the sponsor swore her affidavit in support of the divorce application in which she said that the couple commenced to lead separate lives, living under the one roof, in July 2014. That would date the couple’s separation as having occurred in July 2014;

(d)    on 2 October 2015, the sponsor emailed the Department and said that the couple commenced to lead separate lives on 24 September 2014.

In my view, because the Tribunal failed to engage in an active intellectual process in relation to the evidence, it treated the sponsor’s affidavit which stated a July 2014 separation date as a firm date. In fact, the sponsor’s statements about that had been inconsistent.

93    These errors indicate that any benefit of the doubt the Tribunal might have been given on the question of whether it engaged in an active intellectual process in relation to the evidence in the August 2015 Declaration should be forfeited: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [5]-[6] (Gleeson CJ). As his Honour said in that case, the Tribunal’s errors in relation to the evidence about the couple’s relationship is tantamount to the “thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before”: see FKO17 v Minister for Home Affairs [2019] FCA 98 at [64] (Wheelahan J).

94    An inference that the Tribunal has failed to give real consideration to the evidence before it may be drawn from its failure to expressly deal with that evidence in its reasons, but that is an inference “not too readily to be drawn” where the reasons are otherwise comprehensive and the issue has at least been identified: Applicant WAEE at [47]. In the present case the Tribunal’s reasons are far from comprehensive, and the matters to which the Tribunal failed to real and genuine consideration concerned the central question as to whether a genuine spousal relationship existed as at March 2014. In my view the Tribunal fell into error by failing to grapple with or consider the whole of the evidence in relation to that question, including by failing to consider or weigh the competing evidence. Respectfully, the primary judge was wrong to conclude that the Tribunal did not refer to the sponsor’s statement and the August 2015 Declaration as it was not material to the issue before it.

95    Given that the evidence the Tribunal failed to consider went to the central question in the case the error was material in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ), and thus was jurisdictional.

96    Grounds three and four of the appeal shall be allowed.

Grounds five and six

97    Grounds five and six of the appeal allege as follows:

1.    The Court erred, at 576 [23] in finding that the statement of the appellant’s mother now at AB 329-341, and that of the appellant’s psychologist, now at AB 325, said nothing about the couple’s household and that their not being mentioned in that context was not evidence of error.

2.    The Court should have found that the statement of the appellant’s mother and of the psychologist were relevant to the issue of the genuineness of the marriage at the time of the alleged family violence, and were now lawfully considered, and that the failure to consider constituted jurisdictional error.

98    Under these grounds the appellant argued that the Tribunal fell into jurisdictional error by failing to consider:

(a)    the mother’s affidavit. In this document the appellant’s mother said, amongst other things, that while she was staying with the couple in June 2014 she had spoken to and given advice to the sponsor about “how she could be a good friend and wife” to the appellant. She said that the sponsor “was apparently interested and grateful of [sic] the contents of my views and advises [sic]”. She also said that although the sponsor was listening to her there were two serious incidents during her stay which led her to believe that her advice had been “abortive”; and

(b)    the Psychologist’s Declaration. In this document Ms Hendren stated that she first saw the appellant on 16 January 2015 and had subsequently seen him on 10 occasions up to the date of the declaration. Her professional opinion was that the appellant suffered from ongoing mental and emotional trauma experienced during his relationship. Her overall assessment was that while he was in a relationship with the sponsor he had been the victim of family violence;

and that the primary judge erred by failing to so find (at [23]).

99    The primary judge said (at (23]) that the mother’s affidavit and the Psychologist’s Declaration said nothing about the nature of the couple’s household, and the fact that they were not mentioned by the Tribunal did not show jurisdictional error. His Honour said (at [24]) that the Tribunal was under no duty to refer to evidence which was not the foundation of findings of fact, it would be inappropriate to draw an inference of error from the fact that they were not mentioned. The appropriate conclusion was that they were not mentioned because they were not considered material to the issue in question.

100    In relation to the mother’s evidence the Minister submitted that the Tribunal referred to the appellant’s mother’s evidence (at [16] and [35]):

(a)    (at [16]) the Tribunal said that “[a]t hearing [sic] he (and his mother) said that the sponsor had left [her father’s house where the couple lived] several times in 2014, but that she always returned”. That can only be a reference to the period of approximately 45 days commencing in June 2014 when the appellant’s mother went to stay with the couple; and

(b)    (at [35]) the Tribunal said that “the applicant’s mother claimed that during her visit in June 2014 the household was dysfunctional, with the sponsor behaving unacceptably and leaving to stay with friends and family.”

On that basis the Minister argued there was no basis to suggest that the Tribunal failed to consider her evidence.

101    I do not accept the Minister’s submission. It is plain that the Tribunal referred to the mother’s evidence but there is nothing in its reasons nothing to show that it gave any real consideration to it. The mother’s affidavit detailed the breakdown of what she believed was a genuine relationship over a period that extended past March 2014, based on her personal observations. The clear implication of her evidence was that the couple were living together as husband-and-wife as at June 2014, and her evidence was plainly relevant and probative to the question of whether the couple were still in a spousal relationship, albeit experiencing problems, in June 2014.

102    Yet the Tribunal made no reference to this evidence in its reasoning and conclusions under reg 1.15A(3)(d) in relation to the nature of the couple’s commitment to each other including the duration of their relationship (at [41]-[42]). Nor did it refer to or consider whether or how it corroborated the appellant’s August 2015 Declaration, whether or how it corroborated the photographs and screenshots, or how it sat with or could be reconciled with the evidence of the sponsor and her father in the divorce proceedings. In particular the Tribunal did not grapple with the import of the mother’s evidence in relation to whether a spousal relationship subsisted in the period from March 2014 until June 2014. If there was no spousal relationship in that period one might ask why the couple and their parents would agree to have the appellant’s mother stay with them in order to provide marital guidance and assistance to the sponsor. One might ask why the sponsor would listen to any such advice if the couple were no longer in a spousal relationship.

103    In the circumstances it is appropriate to infer that the Tribunal erred by failing to consider the mother’s affidavit, in the sense of giving active intellectual consideration to it. Her evidence went to the central question in the case and it was material in the sense explained in Hossain at [30] and SZMTA at [45]. The Tribunal’s error was therefore jurisdictional. I respectfully consider the primary judge erred in failing to so find.

104    In relation to the Tribunal’s consideration of the Psychologist’s Declaration I take a different view.

105    It is common ground that the Tribunal made no reference to the Psychologist’s Declaration. The appellant submitted that although Ms Hendren had not spoken to the sponsor, and relied on the account given to her by the appellant as the basis for her affidavit, her evidence was relevant to the question as to whether the couple had been in a genuine spousal relationship as at and after March 2014. Yet, the appellant said, her evidence played no part in the Tribunal’s reasoning leading to its conclusions. The appellant contended that it was appropriate to infer that the Tribunal failed to consider her evidence, in the sense of giving active intellectual consideration to it.

106    I disagree. The central issue the Tribunal identified was whether the parties were in a genuine spousal relationship as at March 2014. Ms Hendren first saw the appellant on 16 January 2015, and her task was to assess whether the appellant suffered from mental health or psychological difficulties, and to treat him for that. Her overall assessment was that the appellant had suffered emotional trauma and psychological damage as a result of family violence in his relationship with the sponsor.

107    Two things can be said about that. First, that assessment was of quite limited probative value to the Tribunal in relation to the central question as to the existence of a spousal relationship as at March 2014. The assessment could only be based on what the appellant told the psychologist, the appellant did not see Ms Hendren until January 2015, and it is difficult to see how any evidence she might have given as to the state of the couple’s relationship as at March 2014 could have had probative value. Second and more fundamentally, Ms Hendren did not express any view as to the state of the couple’s relationship as at March 2014, nor even as to the appellant’s psychological state at that time.

108    In the circumstances the appropriate inference is that the Tribunal did not refer to the Psychologists Report because it was not material to the issue with which the Tribunal was dealing.

109    Grounds five and six will be allowed on the basis of the Tribunal’s failure to consider the mother’s affidavit.

COSTS

110    I am not aware of any reason why costs should not follow the event. It is appropriate to order that the first respondent pay the appellant’s costs of the appeal and the costs of the application before the Federal Circuit Court, less any costs thrown away by reason of the appellant’s amendment of the application allowed by Order 1 of the orders of the Federal Circuit Court made 12 March 2020.

Associate:

Dated:    20 April 2021