FEDERAL COURT OF AUSTRALIA

Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 674

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The appellants appeal from a decision of the Federal Circuit Court delivered on 3 September 2020 dismissing their application for judicial review: see Tao Fang & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455 ((‘Judgment’). The appellants had sought judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 21 May 2018 (‘Decision’). In the Decision, the Tribunal affirmed a decision of a delegate of the first respondent dated 7 December 2016 that the first appellant did not meet the criteria for a Partner (Temporary) (class UK) (subclass 820) (‘visa’) pursuant to the terms of cl 820.211 of Sch 2 to the Migration Regulations 1994 (Cth) (‘Regulations’) made under the Migration Act 1958 (Cth) (‘Act’).

2    The only ground of appeal pressed raises a discrete issue: did the Tribunal fail to give meaningful consideration to evidence advanced by the first appellant? In these reasons reference is made only to the first appellant as the second appellant (being the son of the first appellant, and the secondary visa applicant) had no material role in the claims and evidence advanced before the Tribunal.

BACKGROUND

3    The following background and facts are substantially that relied upon by the first appellant, which I accept.

4    The first appellant is a citizen of China who was born on 10 October 1967. On 12 April 2015 in Sydney she married an Australian citizen, Mr Joseph Waks, who was born on 21 November 1945.

5    On 12 May 2015 the first appellant, through her migration agent, lodged an application for the visa sponsored by Mr Waks.

6    Before the application for the visa was determined, in November 2015, the first appellant separated from Mr Waks and the relationship ended. The first appellant claimed that the relationship ended as a result of family violence committed by Mr Waks.

7    It is a criterion for the grant of a subclass 820 visa that, as at the time of the application, the visa applicant must be the “spouse” (or “de facto partner”) of the sponsor: cl 820.211(2) of Sch 2 to the Regulations. It is also a criterion that, as at the time of the decision, the visa applicant must continue to be the spouse (or de facto partner) of the sponsor: cl 820.221(1). There is an exception to this requirement where the spousal relationship has ceased but the applicant has suffered family violence committed by the sponsor: see cll 820.221(1)(b) and 820.221(3). There are special provisions relating to family violence in Div 1.5 of Pt 1 of the Regulations which are not presently relevant.

8    The term “spouse” is relevantly defined in s 5F of the Act to require that the parties “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”; that “the relationship between them is genuine and continuing”; and that they “live together”. The Regulations then relevantly prescribe that in determining an application for a partner visa (including a Partner (Temporary) (Class UK) visa), the Minister must consider “all of the circumstances of the relationship” 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”: reg 1.15A(2)-(3).

9    Relevantly, the “financial aspects of the relationship” are defined in reg 1.15A(3)(a) to include the following specific matters:

(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

10    The “nature of the household” is defined in reg 1.15A(3)(b) to include the following specific matters:

(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

11    The “social aspects of the relationship” are defined in reg 1.15A(3)(c) to include the following specific matters:

(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

12    I also note that “the nature of the persons’ commitment to each other” is defined in reg 1.15A(3)(d) to include the following specific matters:

(i)    the duration of the relationship; and

(ii)    the length of time during which the persons have lived together; and

(iii)    the degree of companionship and emotional support that the persons draw from each other; and

(iv)    whether the persons see the relationship as a long-term one.

Evidence of spousal relationship

13    At the time of applying for the visa on 12 May 2015 and then later as the visa was processed (including in response to the notification on 14 June 2016 that Mr Waks’ had withdrawn sponsorship for the first appellant’s visa application) the first appellant provided evidence in support of her claim that she was the spouse of Mr Waks as at the date of the application. This evidence went to the following matters.

14    Both the first appellant and Mr Waks had been members of an online dating site, “Metro Personal”, before they met. They first made contact through that site on 12 March 2014. Thereafter, they communicated by email and telephone, and their relationship grew. The first appellant provided more than 60 pages of email exchanges from April to May 2014 in which Mr Waks became more and more ardent as time went on (‘email exchanges’).

15    On 12 September 2014 the first appellant travelled to Australia and spent eight days staying with Mr Waks at his one bedroom apartment in Maroubra, NSW. During this time the relationship developed rapidly, and Mr Waks bought a pair of Tiffany earrings for the first appellant which, to the first appellant, “indicated that he was also just as deeply in love with me as I was with him”.

16    The first appellant planned to return to Australia in December 2014. In the lead up to her visit the parties exchanged WeChat messages in which Mr Waks again showed increasing passion and considered that the relationship would be long-term (‘WeChat messages’).

17    When the first appellant arrived in Australia on 7 December 2014, Mr Waks picked her up at the airport with a Tiffany necklace to match the earrings. From that time onwards the first appellant and Mr Waks lived together at the Maroubra apartment.

18    From 15 February 2015 to 7 March 2015 the first appellant and Mr Waks travelled to China together, where they visited the first appellant’s family and friends in Shanghai and travelled to Suzhou (‘China trip’). When in Shanghai they stayed together at the Shanghai Hilton. During their visit to China they took a number of photos, including wedding photos (‘photos’). The photos exhibited affection and togetherness between the parties, their marriage, and the acceptance of their relationship by people from each side of the relationship.

19    When the first appellant and Mr Waks returned to Australia on 7 March 2015 they lived together at the Maroubra apartment. Prior to the China trip, on 8 December 2014 they had opened a joint ANZ bank account (‘joint account’). Apart from the period that they were in China, the joint account was “topped up” regularly with payments of $300 from Mr Waks and amounts of around $50 to $100 from the first appellant, and was used regularly for day-to-day shopping, including groceries. Apart from that, Mr Waks paid for all of the household expenses, including rent and utility bills. The joint account reflected this pattern of deposit and expenditure over the entire period of their relationship.

20    The first appellant provided three statutory declarations made at around the time of the application for the visa (‘third party statements’). These were made by:

(a)    Joseph Nathan Waks on 5 May 2015, who was a general practitioner and cousin of Mr Waks who had often treated Mr Waks with the first appellant present;

(b)    George John Shervington on 6 May 2015, a retired occupational therapist who had known Mr Waks for 10 years; and

(c)    Jacob Mordecai Waks on 6 May 2015, Mr Waks’ son, a director and financial adviser who had spoken to or seen the first appellant on a weekly basis since first meeting her in September 2014.

The third party statements all included comments on the signs of affection, love, mutual respect, and the commitment and bond of the first appellant and Mr Waks. A further third party statement was made on 12 September 2016 by a mutual friend, Ye Zhou, who had seen the first appellant and Mr Waks living together “on multiple occasions” and said that their residence had been “like any family home”. Ms Zhou also provided photos of the couple, some of which appear to have been taken by her or her husband.

21    Further third party statements were also provided on 18 April 2016 and 29 April 2016 by the first appellant’s social worker and psychologist, respectively.

22    The first appellant’s evidence was that her marriage with Mr Waks was very good at the beginning. This was also the description that she gave to her social worker and psychologist; indeed, it was also the opinion of Mr Waks as expressed in his 2016 letter to the Department of Immigration and Border Protection (‘Department’) wherein he withdrew sponsorship of the first appellant. The first appellant and Mr Waks had a “memorable” trip to Melbourne in June 2015, where they met up with Ms Zhou and her husband at a Jehovah’s Witness event. The first appellant also looked after Mr Waks’s personal health, accompanying him to medical appointments and surgery for a kidney stone operation in March 2015 and supporting him in his recovery. There was also evidence that in March 2015 the first appellant insisted that Mr Waks sign a promise to eat regular meals. The first appellant emphasised that her religious belief, as a Jehovah’s Witness, required her to commit to her marriage and not to separate or divorce.

23    There were some early difficulties in the relationship; early on Mr Waks refused to let the first appellant study English; and in April 2015 he refused to let her continue a make-up course. In May 2015, Mr Waks made the appellant terminate a telephone call to a male friend in China. The first appellant was particularly wary of Mr Waks when he had been drinking; and stated that on one occasion he threw a book at her for no reason. However the relationship held steady through these times; Mr Waks himself said that he believed the first appellant started treating him badly after they were married but “things started improving again”.

24    Nevertheless, after these and other more serious incidents, the first appellant became more and more scared of Mr Waks, especially when he had been drinking. Things came to a head on 1 November 2015, when Mr Waks attempted to prevent the appellant from going to a Jehovah’s Witness meeting and tried to throw her out of the apartment; the appellant called the police who calmed things down, telling her that she had a right to live there. The next day, 2 November 2015, the appellant visited her general practitioner, Dr Maria Kang, who provided a letter to confirm the nature of the consultation. While there, Dr Kang telephoned Mr Waks who was “rather unhelpful” and “seemed rather angry and suspicious of his wife”. When the appellant returned to the apartment there was an altercation with Mr Waks and the first appellant called the police, who arrived 40 minutes later and questioned both parties; each claiming that the other was the aggressor. The next day, the first appellant attended hospital for treatment to bruising she said had occurred the previous day when Mr Waks had pushed her over. She spent some six hours at the hospital and, when she returned home, she found that the lock to the apartment had been changed and she could not enter. The first appellant went to the police station and officers accompanied her to the apartment where she was able to retrieve her belongings.

25    Mr Waks subsequently contacted the Department between December 2015 and May 2016 to advise that the relationship had ended.

TRIBUNAL FINDINGS

26    On the basis of the facts before it, the Tribunal made the following findings in the Decision:

[25]    The parties did not have any joint ownership of assets or joint liabilities and did not have a legal financial obligation owed to the other party. In May 2015, the applicant stated that the parties had a joint bank account into which they sometimes deposited money. She stated that the sponsor paid for all household expenses and utility bills and also paid when the parties dined out. She stated that she had a personal account with savings which were mainly used to support her son. In September 2016, the applicant gave evidence that she deposited money into the joint account to complete large money transactions. She stated that when she was finished using the money she transferred the money back to her personal account. In May 2018, the applicant provided other information that she transferred money into the joint ‘account when funds were low. She claimed that the joint account was used for groceries, meals, essential household goods and entertainment. The sponsor gave evidence that he borrowed $20,000 and provided this to the applicant to support the visa application. The applicant’s migration agent stated that the amount the sponsor provided to the applicant was $14,000. The applicant told the Tribunal that the parties shared the purchase of groceries and things. The Tribunal told the applicant that this was inconsistent with her previous evidence where she stated that the sponsor paid for all household expenses. The applicant told the Tribunal that the large transactions into the parties’ joint account were to facilitate her betting on horse racing. The Tribunal does not accept the applicant’s migration agent’s argument that the applicant’s housework should be accepted as a financial contribution to the household. The Tribunal accepts that the sponsor supported the parties financially and the applicant utilised the joint bank account for her personal use, betting on horse racing including through ‘Betfair’ and ‘Crownbet’. The Tribunal does not accept that the parties shared day-to-day household expenses.

[26]    The parties did not have any joint responsibility for care and support of children. The evidence is that the applicant’s son was supported financially by the applicant and lived independently of the parties. The Tribunal accepts that the parties lived together and on the parties evidence the applicant completed the housework and cooking.

[27]    The Tribunal accepts that the parties travelled and socialised together in Australia and China. It also accepts that the parties represented themselves to other people as being married to each other. Third party statements, give little insight about the parties’ relationship or how the parties supported each other. Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts that the parties’ undertook social activities.

[28]    The parties’ evidence is that they lived together since December 2014 and married on 12 April 2015. At the time the visa application was lodged on 12 May 2015, the parties had lived together for approximately six months and had been married for one month. After 11 months the parties’ relationship ended. On 1 March 2017, the parties became divorced.

[29]    During the 11 months the parties lived together there is little evidence about how the parties supported each other. The applicant tells of being with the sponsor during a procedure to remove a kidney stone and caring for him during his recovery. Other information is that the sponsor supported the applicant when her father was ill, and further evidence includes the sponsor taking out a two year telephone contract for the applicant and nominating her as a beneficiary for his superannuation. On one hand, the applicant provided evidence of the parties expectation of them growing grow old together and of her being controlled by the sponsor. On the other hand, the sponsor provided evidence that the parties’ relationship diminished one week after the parties’ marriage and that he believed the applicant had married him for a visa. The police report records the sponsor stating that he had been trying to end the marriage; however, the applicant continued to demand money from him. The Tribunal considered all of the evidence about the parties’ relationship. It placed significant weight on the police information about the applicant providing inconsistent information and changing her story multiple times. It also placed weight on police fears that the applicant would continue to report false allegations about family violence perpetrated by the sponsor. Overall, the Tribunal is not satisfied that the parties provided each other with companionship and emotional support. Having considered all of the evidence, the Tribunal is left unsatisfied that the parties were ever in a spousal relationship. It is not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others or that they viewed their relationship as genuine and continuing.

[30]    Ultimately, after considering the evidence individually and as a whole, the Tribunal on the evidence is not satisfied that a de facto or spousal relationship ever existed between the applicant and the sponsor. Accordingly, the applicant cannot satisfy cl.820.211(2) of Schedule 2 to the Regulations. The Tribunal considered the information about the claims of family violence, in so far as it related to the parties’ relationship. As the Tribunal is not satisfied that the parties ever shared a spousal relationship, it has not gone on to consider the applicant’s claims of family violence. As a result, the applicant does not satisfy cl.820.221(3) of Schedule 2 to the Regulations.

[31]    The Tribunal is not satisfied that at the time of the visa application and at the time of this decision, the sponsor and the applicant ever had a mutual commitment to a shared life as de facto or spousal partners to the exclusion of all others; or that their relationship was genuine and continuing. The applicant therefore does not meet the requirements of s.5CB or s.5F of the Act.

27    I will return to aspects of these findings later.

RELEVANT PRINCIPLES OF LAW

28    The relevant principles of law are not in contention.

29    A decision-maker may fall into jurisdictional error if they fail to engage with, or give active consideration to, a material aspect of an applicant’s case. As the Full Court of this Court explained in Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (‘Buadromo’), a failure to engage with material in a way that leads to error may be described in a number of different ways, of which the description “active intellectual exercise” is merely one: at [42]-[45] (Besanko, Barker and Bromwich JJ). What is required is a proper analysis, within the applicable statutory setting, of what the decision-maker did.

30    The Full Court in Buadromo reiterated (albeit in a different statutory context) that:

(a)    a decision-maker is not required to make findings of fact about every claim made or issue raised: at [46];

(b)    an obligation to give reasons does not require a line by line refutation of the evidence: at [48];

(c)    the tribunal must give reasons for decision, not the sub-set of the reasons why it accepted or rejected individual pieces of evidence: at [48]; and

(d)    it is generally not essential for a decision-maker to refer to every piece of evidence or contention raised by an applicant: at [49].

31    Broad statements will not necessarily absolve a decision-maker where the reasons otherwise disclose a relevant failure but, as the Full Court in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 made clear, nor should they be understood as “mere verbal formulae”: at [127] (Griffiths, White and Bromwich JJ).

32    In He v Minister for Immigration and Border Protection (2017) 255 FCR 41, the Full Court (Siopis, Kerr and Rangiah JJ) said that the Tribunal is required to make findings upon and consider each of the prescribed matters in reg 1.15A of the Regulations, including the specified matters in the sub-paragraphs: at [73]-[77]. The Full Court held (at [76]):

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

(Emphasis added, citations omitted.)

33    In Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 (20 April 2021), Murphy J usefully made the following statement in relation to the need to consider the relevant matters for determination and the formulation of reasons (at [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).

34    I agree with these statements which are equally relevant with respect to the Tribunal and the need to properly consider the matters for determination and formulate its reasons.

35    Therefore, engaging in an active intellectual process directed to relevant evidence involves real consideration of it and not merely a recitation of parts of the relevant evidence without consideration of its significance or weight. However, care must be taken to ensure that the Court does not stray into merits review.

DISCUSSION

36    I will now turn to a discussion of the consideration of the matters (including both the principal matters and the specific matters) in reg 1.15A of the Regulations by the Tribunal and the primary judge, and my conclusions.

Financial aspects of the relationship

37    The Tribunal considered the financial aspects of the relationship between the first appellant and Mr Waks at [25] of the Decision. In doing so, it referred to a range of evidence from the first appellant and Mr Waks.

38    The primary judge dealt with the Tribunal’s consideration of the financial aspects of the relationship in the Judgment as follows:

[30]    A fair reading of the Tribunal’s consideration of the financial aspects of the relationship makes clear that the Tribunal considered the joint ownership of assets, joint liabilities, the extent of pooling of financial resources and the basis of any sharing of day to day household expenses.

[31]    The evidence before the Tribunal made clear that the joint account was not used for household expenses such as utility bills and rent. The Tribunal plainly had regard to the fact that there was a joint account and considered the use to which it was put, namely, for groceries and the First Applicant’s betting activities.

[32]    To the extent that the contention in Ground One is that the Tribunal failed to engage with the financial aspects of the relationship, such a contention is not made out. A fair reading of the Tribunal’s reasons makes clear that the Tribunal had regard to what was said in the representations made by both parties, including the facts and arguments upon which each relied. The Tribunal then attributed weight to the evidence before it in relation to the financial aspects of the relationship and having evaluated that evidence, found that there was no joint ownership of assets, no joint liabilities, no pooling of financial resources beyond the joint account and its use in paying for groceries and betting; and that there was no sharing of day to day household expenses.

[33]    That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. That finding was probative of the evidence before the Tribunal and was made following an active intellectual engagement of the evidence before it. The Tribunal engaged in an active intellectual process as explained in the relevant authorities as referred to in the submissions of both counsel and, in particular, Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, at 495-496 per Kiefel J (as her Honour then was), at 462 per Black CJ.

39    The primary judge found that the Tribunal had considered all of the specific matters in reg 1.15A(3)(a) and the evidence from both the first appellant and Mr Waks in this regard.

40    I should indicate that it may be that the Tribunal was not correct in all its factual analysis, but this does not mean there is jurisdictional error and certainly not jurisdictional error of the kind raised in this appeal. I do not need to go into all the discrepancies raised by the appellant as to some of the evidence because this would be entering the field of merits review. However, it is useful to give a few examples.

41    The first appellant argues that the Tribunal commented that the first appellant said in her application that Mr Waks paid for all household expenses and utility bills and also paid when the parties dined out, and this was said to be inconsistent with her claim that the joint account was used for groceries, meals, essential household goods and entertainment. This was said to ignore the almost identical answer given in the sponsorship form signed by Mr Waks, and the first appellant’s explanation in the hearing that she regarded “groceries and things”, which was paid from the joint account, as being different from “household expenses”, which included such things as electricity bills.

42    The first appellant pointed out that the Tribunal found (at [25] of the Decision):

The Tribunal accepts that the sponsor supported the parties financially and the applicant utilised the joint bank account for her personal use, betting on horse racing including through ‘Betfair’ and ‘Crownbet’. The Tribunal does not accept that the parties shared day-to-day household expenses.

(Emphasis added.)

43    It was submitted that the above finding failed to engage with the evidence that Mr Waks himself had said that “[m]e and [the first appellant] have a joint account with ANZ. We put in some cash sometimes and use this account mainly for grocery shopping”. It was also said to fail to engage with the evidence to be found in the joint account statements themselves, which covered the entire period of the parties’ relationship and showed page after page of deposits, as claimed, and items of grocery shopping, as claimed.

44    However, even if these matters are to be accepted as facts, as the primary judge made clear (at [33] of the Judgment), the Tribunal attributed weight to the evidence as presented and made its own decision. In my view the Tribunal gave consideration to the relevant criteria, and formed an evaluative judgment.

Nature of the household

45    The Tribunal dealt with the nature of the household at [26] of the Decision. The Tribunal was aware of the fact that the parties lived together in close quarters for six months prior to the date of application: see [28] of the Decision.

46    The primary judge dealt with the Tribunal’s consideration of the nature of the household in the Judgment as follows:

[34]    Regulation 1.15A(3)(b) required the Tribunal to consider the nature of the household including any joint responsibility for the care and support of children, the living arrangements of the persons and the sharing of the responsibility of house work.

[35]    In considering that aspect, the Tribunal noted that the parties did not have any joint responsibility for the care and support of any children and that the second applicant was supported financially by the First Applicant and lived independently of the parties. The Tribunal accepted that the parties lived together and that on the evidence of the parties, the First Applicant completed the housework and cooking.

[36]    Having accepted the evidence of the parties in relation to the nature of the parties’ household, there was little more that the Tribunal could have said. In the circumstances, the Tribunal was not required to elaborate further, having accepted the mutual evidence of the parties before it in relation to the nature of the household.

[37]    In the circumstances, there was no error in the manner in which the Tribunal considered the nature of the parties’ household.

47    I agree with the primary judge’s conclusion that there was little further for the Tribunal to say on this issue as it essentially accepted the evidence that was before it.

Social aspects of the relationship

48    The Tribunal addressed the social aspects of the relationship between the first appellant and Mr Waks at [27]-[28] of the Decision. The Tribunal accepted much of the evidence including that the parties undertook social activities but noted that the third party statements gave little insight about “their relationship or how the parties supported each other”. The Tribunal noted that the photographs provided by the parties depicted the parties “together”.

49    The primary judge dealt with the Tribunal’s consideration of the social aspects of the relationship in the Judgment as follows:

[38]    Regulation 1.15A(3)(c) requires the Tribunal to consider the social aspects of the relationship, including whether the parties represented themselves to others as being married and the opinion of other persons as to the nature of the relationship as well as any basis upon which the parties planned to undertake social activities.

[39]    The Tribunal accepted that the parties travelled and socialised together in Australia and in China and accepted that they represented themselves as being married to each other to other people. The Tribunal also accepted that the parties undertook social activities together and that photographic evidence depicted them together and with others at different locations.

[40]    In relation to the photographic evidence, counsel for the applicant submitted that it demonstrated an intimacy that the Tribunal had not found or appreciated. However, the Tribunal’s finding that the photographs depicted the parties together and with others at different locations was a finding clearly open to the Tribunal on the photographic evidence before it. The Tribunal may have commented more comprehensively on the “togetherness” that the photographs depicted, including photos where the parties appeared to have dressed up in wedding costumes. However, the finding of the Tribunal was one clearly open to it and was fairly descriptive of what the photographs depicted.

[41]    The Tribunal also found that third party statements provided by the First Applicant in support of their relationship gave little insight about the parties’ relationship and how they supported each other. Counsel for the applicant submitted that the statutory declarations were provided by credible witnesses, including Mr Waks’ cousin and son, that they referred to signs of fond regard for each other, whether in each other’s company or not. The Tribunal noted that Mr Waks’ son described the bond between the parties as one which allowed them to enjoy life together.

[42]    The relevant statements were brief and basically asserted the parties’ fondness for each other. None gave particular elaboration or examples of fondness beyond the mere assertions. It was for the Tribunal to consider that evidence, evaluate it and to determine the weight that it would attribute to that evidence in considering the social aspects of the parties’ relationship.

[43]    A fair reading of the Tribunal’s decision record makes clear that the Tribunal did consider the third party statements. The Tribunal’s conclusion that the third party statements gave little insight into the parties’ relationship or how they supported each other was a conclusion open to it. It was, however, a conclusion with which the applicants did not agree. Such disagreement seeks merit review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

[44]    As stated above, the Tribunal’s findings in relation to the third party statements were open to the Tribunal on the evidence and material before it and the reasons it gave. It was probative of the relevant issues before the Tribunal and, whilst brief, did demonstrate an active intellectual engagement with the material before it (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ; Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, at 495-496 per Keifel J (as her Honour then was), at 462 per Black CJ).

50    The primary judge correctly noted that the Tribunal’s finding on the photographs was “fairly descriptive” of the material and open to the Tribunal to make: Judgment, [40]. The primary judge also correctly noted that the third party statements were brief and merely asserted the parties’ fondness for each other, and that it was for the Tribunal to determine the weight to be attributed to the evidence: Judgment, [42].

51    The first appellant raises a number of questions she says the Tribunal should have asked which relate to both the social aspects of the relationship and the nature of the commitment – why would the parties have travelled and socialised in Australia and China if they were not in a genuine relationship? Why would they present to others as married if they were not spouses?

52    The first appellant also points out that the final sentence of [27] of the Decision – “[t]he Tribunal accepts that the parties’ undertook social activities” — completely avoided making any comment on what this observation meant to the Tribunal. What were the social activities, and what did they mean?

53    Again, in my view, the Tribunal, having reached the conclusion it did on all the material that it needed to evaluate, did not need to ask itself these questions nor consider them. Some evidence would have been consistent with the first appellant and Mr Waks being in a spousal relationship, other evidence was either neutral or inconsistent.

Nature of the persons’ commitment to each other

54    At [29] of the Decision, the Tribunal turned to the nature of the first appellant and Mr Waks’ commitment to each other. The Tribunal noted that there was little evidence of how the parties supported each other and referred to a range of evidence in this regard. The Tribunal also gave significant weight to police reports about the conduct of the first appellant.

55    The primary judge dealt with the Tribunal’s consideration of the nature of the commitment in the Judgment as follows:

[45]    Regulation 1.15A(3)(d) required the Tribunal to consider the nature of the parties commitment to each other, including the duration of the relationship, the length of time the parties lived together, the degree of companionship and emotional support that each drew from the other and whether the parties saw the relationship as a long term one.

[46]    The Tribunal noted that on the evidence of the parties, they lived together since December 2014 and married on 12 April 2015. The Tribunal noted that at the time the visa application was lodged on 12 May 2015, the parties had lived together for approximately six-months and been married for one month. The Tribunal noted that the parties’ relationship ended 11 months later and on 1 March 2017, the parties divorced.

[47]    The Tribunal found that during the 11 months the parties lived together, there was little evidence about how the parties supported each other. The Tribunal did note the First Applicant’s evidence of being with the Sponsor during the removal of a kidney stone and caring for him during his recovery. The Tribunal also noted that the Sponsor supported the First Applicant when her father was ill. The Tribunal also noted that the Sponsor took out a two year telephone contract for the First Applicant’s benefit and nominated her as a beneficiary of his superannuation fund.

[48]    The Tribunal noted the First Applicant’s evidence that the parties expected to grow old together; whereas, the Sponsor’s evidence was that the parties’ relationship deteriorated one week after the marriage and that the Sponsor believed that the First Applicant had married him for the visa.

[49]    The Tribunal referred to police records which referred to the Sponsor stating that he had been trying to end the marriage but that the First Applicant had continued to demand money from him. The Tribunal placed “significant weight” on the police information about the First Applicant providing inconsistent information to the police and changing her story multiple times. It also placed weight on police fears that the First Applicant would continue to report false allegations about family violence perpetrated by the Sponsor.

[50]    The Tribunal was ultimately not satisfied that the parties had provided each other with companionship and emotional support following its consideration of all the evidence before it.

[51]    The argument of counsel for the applicants essentially centred around the weight that the Tribunal gave to the evidence before it of the parties’ commitment to each other. In particular, counsel referred to Tiffany earrings that were bought by the Sponsor for the First Applicant early in their relationship, a note that the First Applicant had the Sponsor sign in relation to eating properly and the First Applicant’s religious commitment to marriage.

[52]    Again, the Tribunal referred to the representations of each of the parties in relation to their commitment to each other. It is well established that it is not necessary for the Tribunal to refer to every piece of evidence before it in the course of an active engagement with the evidence before it (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 the Full Court of the Federal Court (French, Sackville and Hely JJ).

[53]    The thrust of the Tribunal’s findings is that it was not persuaded by the evidence of commitment before it relied on by the applicants and found that there was little evidence of mutual support. Again, that is a matter for the Tribunal for evaluation of the evidence before it. It was open for the Tribunal to find that there was little evidence of mutual support. The Tiffany earrings were bought by the Sponsor very early in the relationship. The First Applicant’s note to the Sponsor about eating properly, is not an unequivocal demonstration of care and support. Religious commitment to marriage by one party is not the same as mutual ongoing commitment to each other.

[54]    In considering the parties’ commitment to each other, it was open to the Tribunal to have regard to the police records, the subject of the s.376 Certificate, and the evaluation by the police of the information given to the police by each of the parties.

[55]    Again, the applicants’ complaints about the manner in which the Tribunal dealt with the evidence of commitment appear more to be a disagreement of the findings and decision of the Tribunal which were open to it on the material before it and for the reasons it gave. The Tribunal’s findings were relevant of the probative issues before it and, whilst brief, were sufficient to satisfy the requirement of active intellectual engagement with the evidence before it.

[56]    As stated by the first respondent in submissions, the “beneficial matters before (the Tribunal) were outweighed by the serious problems with the first applicant’s credibility in light of the Sponsor’s evidence and the material in the police report”.

[57]    Based on its consideration of all the evidence, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others or that they viewed their relationship as genuine and continuing. Accordingly, the Tribunal found that the First Applicant did not meet the requirements of s.5CB or s.5F of the Act, and therefore the applicants did not meet the requirements for the grant of the visas.

[58]    There was no error in the manner in which the Tribunal considered the evidence and material before it, the manner in which it evaluated the material before it and the conclusions it made in relation to the material and evidence before it.

56    The primary judge correctly summarised the Tribunal’s reasoning.

57    The first appellant argues that in [29] of the Decision, wherein the Tribunal concluded there was “little evidence about how the parties supported each other”, the Tribunal mentioned but made nothing of obvious evidence of mutual support including evidence of the first appellant supporting Mr Waks when he was in hospital and later recovering at home from a kidney stone operation, and of Mr Waks supporting the first appellant when her father was ill, as well as paying for a two year telephone contract for her and nominating the first appellant as a beneficiary for his superannuation.

58    It is true (as the first appellant contends) the Tribunal placed significant weight on the police report records, and also placed weight on the fact that “the sponsor provided evidence that the parties’ relationship diminished one week after the parties’ marriage and he believed that the applicant had married him for the visa”: at [29] of the Decision. In this regard, we note that the “evidence” referred to by the Tribunal is a signed letter from Mr Waks to the Department notifying of the cessation of the relationship.

59    The Tribunal also placed weight on the opinion of the police that the first appellant gave inconsistent information about what happened on the night of 2 November 2015 and their fear that she would continue to report false allegations about family violence perpetrated by Mr Waks. It is argued by the first appellant that none of this took account of the first appellant’s version of events, which were diametrically opposite to that of Mr Waks and the police.

60    It is also pointed out that the police visit to the apartment occurred almost six months after the relevant time for the purpose of cl 820.211 of Sch 2 to the Regulations, which requires that a spousal relationship must exist as at the date of the visa application (ie 12 May 2015).

61    Further, the first appellant submits that the Tribunal’s finding that “overall” it was not satisfied they provided each other with companionship and emotional support ([29] of the Decision) failed to engage with evidence of commitment which existed as at the time of the application. This included Mr Waks’s devotion to the first appellant demonstrated through the email exchanges and the WeChat messages, the purchase by Mr Waks of expensive items of Tiffany jewellery, the first appellant’s religious commitment to her marriage, and the expressions of both the first appellant and Mr Waks that the relationship was good at the beginning.

62    However, again, the Tribunal decided to place weight on evidence it chose to accept: the police report records. In circumstances where the Tribunal doubted the evidence of the first appellant, the Tribunal was entitled to rely on the police report records over the evidence of the first appellant and that of the sponsor. To descend into the analysis of the first appellant now pressed does enter the realm of merits review. Otherwise, I consider the Tribunal gave proper consideration to the issues before it.

Tribunal’s conclusions on evidence

63    As a general attack on the Decision, the appellants argue that it is insufficient for the Tribunal to just accept claims or evidence. However, in many instances it is difficult to see what else the Tribunal could have added in regard to its conclusion. For example, nothing could be added to a finding that the Tribunal accepted photographs properly depicted the parties together or that they undertook social activities.

64    Accepting the photographic evidence format is shared (and the inference that such evidence potentially operated in favour of the appellants) is (as noted in [27] of the Decision) that it necessarily formed part of the weighing exercise required of the Tribunal by reg 1.15A and s 5F. It relevantly informed the Tribunal’s conclusion (at [29]) it was not satisfied “overall” that the parties provided each other with companionship and emotional support, bearing in mind the importance of the conflicting evidence from the sponsor.

65    In my view, the Tribunal did address the matters required of it under reg 1.15A. The Tribunal considered the mandatory factors by identifying the critical material that influenced its decision and the manner in which it weighed the mandatory factors. The Tribunal did not refer to every piece of evidence in this regard. It was not required to do so. The Tribunal identified the central matters of concern and gave the first appellant the benefit of a number of positive findings. Those beneficial matters were outweighed by the problems with the first appellant’s credibility in light of the sponsor’s evidence and other material.

66    In my view, the primary judge correctly analysed the Decision in accordance with relevant legal principles and there is no jurisdictional error.

67    I should mention that, having found that the parties were not in a genuine spousal relationship as at the time of the application for the purpose of cl 820.211 of Sch 2 to the Regulations, it was not necessary for the Tribunal to go on to make findings in relation to the first Appellant’s allegations of family domestic violence.

DISPOSITION

68    The appeal will be dismissed with costs.

Associate:

Dated:    24 June 2021