Federal Court of Australia

Ngo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 160

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to file the amended notice of appeal and amended submissions.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction

1    The appellant is a citizen of Vietnam who arrived in Australia on 30 July 2012 on a Prospective Marriage (Subclass 300) Visa. The appellant and her sponsor were married on 19 August 2012.

2    On 10 April 2013, a delegate of the Minister for Immigration and Citizenship (as it then was) granted the appellant a Temporary Partner Visa. However, on 25 February 2016 a delegate of the Minister for Immigration and Border Protection (the Delegate) refused the appellant’s application for a Partner (Residence) (Class BS) (Subclass 801) visa (the Application). On 16 May 2017, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision under review.

3    The appellant has, throughout the visa application process, and the review proceedings, been represented by a solicitor. Mr Karp of counsel represented her before the primary judge and at the hearing of this appeal.

4    The appellant filed an application in the Federal Circuit Court of Australia (FCCA) (as it was then known) seeking review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) on 16 May 2017. That application was dismissed on 16 June 2021.

5    On 14 July 2021 the appellant appealed to this Court from the FCCA decision. The amended notice of appeal relied upon at the hearing, filed 21 June 2022, raises one ground:

1.    The Federal Circuit Court erred in finding that the second respondent lawfully considered,

a.    evidence in a statutory declaration of the sister of the appellant’s spouse that;

i.    The appellant and her spouse share a room at her home.

b.    evidence given by the appellant at hearing to the effect that she and her husband slept in the same room and, by inference, in the same bed.

c.    evidence in a statutory declaration of Khoa Dang Nguyen that the applicant and her spouse were “always smiling and laughing when they are with each other”.

6    The first respondent, (the Minister) did not oppose the granting of leave to rely on the amended notice at the hearing on 24 June 2022.

7    For the reasons that follow, the appeal is dismissed.

Relevant Legislation

8    The criteria for the appellant’s visa application are set out in Pt 801 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). As at the date of the Tribunal decision that criteria read:

801.22—Criteria to be satisfied at time of decision

801.221 

…

(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 the Subclass 820 (Partner) visa by:

    (i)      the sponsoring partner; or

(ii)      the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

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

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

9    Section 5F of the Act relevantly defines “spouse” as:

5F Spouse

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

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

10    Finally, reg 1.15A of the Regulations provides:

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:

(a)      a Partner (Migrant) (Class BC) visa; or

(b)      a Partner (Provisional) (Class UF) visa; or

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

(d)      a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)      The matters for subregulation (2) are:

(a)      the financial aspects of the relationship, including:

(i)      any joint ownership of real estate or other major assets; and

(ii)      any joint liabilities; and

(iii)      the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)      whether one person in the relationship owes any legal obligation in respect of the other; and

(v)      the basis of any sharing of day-to-day household expenses; and

(b)      the nature of the household, including:

(i)      any joint responsibility for the care and support of children; and

(ii)      the living arrangements of the persons; and

(iii)      any sharing of the responsibility for housework; and

(c)      the social aspects of the relationship, including:

(i)      whether the persons represent themselves to other people as being married to each other; and

(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)     any basis on which the persons plan and undertake joint social activities; and

(d)      the nature of the persons’ commitment to each other, including:

(i)      the duration of the relationship; and

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

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

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

(4)      If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Decision of the Tribunal

11    The appellant applied to the Tribunal to review the Delegate’s decision on 25 February 2016. The hearing before the Tribunal, including oral evidence from the appellant and her sponsor, took place on 3 March 2017. On the then named Department of Immigration and Border Protection’s (the Department) request, a further statutory declaration of the appellant was supplied to the Tribunal on 5 May 2017, and the decision under review was affirmed by the Tribunal member on 16 May 2017.

12    The Tribunal decision (T) summarises the procedural history of the appellant’s application at [2]–[13], including a mention of the Minister’s decision record which sets out correspondence between the appellant and the Department in relation to the appellant’s Facebook page. T[11]–[12] describe how the Department presented the appellant with posts from her public Facebook profile which had been translated by a Vietnamese speaking departmental officer. In this letter the departmental officer expressed concern that despite the appellant being a frequent and active Facebook user, she had not created any status updates, or uploaded any photographs showing the parties socialising with each other. Furthermore, a comment thread under a particular picture of the appellant had been translated by the Vietnamese speaking departmental officer and was said to read “why don’t I see pictures of your man?” to which the appellant had responded “do not have a man” and a sad face emoji (Facebook evidence).

13    The Tribunal noted at T[12] that it was on the basis of the Facebook evidence, as well as other concerns the Delegate had expressed, that the Delegate found there was little evidence that the parties were in a genuine or committed spousal or de facto relationship.

14    From T[14]–[22], the Tribunal discussed the appellant’s oral evidence given at the hearing. This included evidence that the appellant and the sponsor had been married for nearly five years, and had a close and emotionally supportive relationship: T[14]. The appellant also gave evidence that she and the sponsor shared a bedroom in the home owned by the sponsor’s younger sister, but hoped to move into their own home and have children: T[14].

15    The Tribunal summarised the appellant’s evidence regarding her and the sponsor’s financial situation at T[16]–[18]. The appellant told the Tribunal that she manages the day to day finances using cash and their joint bank account, in which both the appellant and the sponsor deposit their cash wages from the nail salon where they both work. The appellant had no documentary evidence to demonstrate where the money withdrawn from the joint account went. The appellant also gave evidence about the sponsor’s car loan, which was said to be paid monthly with cash given to the sponsor by the appellant from their shared finances: T[17].

16    Responding to the concerns expressed by the Delegate about her Facebook profile, the appellant gave evidence that the sponsor was old fashioned and does not like having information about him or photographs of him posted on Facebook: T[21]. She also referred to the Delegate’s concerns regarding the comments on a photo which had been translated by a departmental officer (discussed above at [12]). The appellant stated these comments were taken out of context, and were intended to mean that there was no man in the photo, not that she was not in a relationship: T[22].

17    The Tribunal then summarised the sponsor’s evidence from T[23]–[26] wherein he confirmed, among other aspects of the appellant’s evidence, the parties were in a genuine and loving relationship.

18    Following the hearing, the Tribunal provided the appellant with a copy of her Facebook profile records that the Department had accessed on 15 November 2015 and which had been discussed in the Delegate’s decision record. The Tribunal invited her to comment on the records, noting it may support adverse findings against her if relied upon by the Tribunal. The appellant’s migration agent responded to the Tribunal with a letter dated 5 May 2017 and a further statutory declaration of the appellant. That statutory declaration was reproduced in the Tribunal’s reasons at T[33], which included the following:

13.     The member further questioned a comment made on 23rd December 2013 between myself and my friend from Vietnam. The friend asked “why can’t I see photos of guys, just only girls my dear” and I replied “I have no guy here” meaning there’s no man in the photo.

14.    I state that the interpretation of this comment was taken entirely out of context. This dialogue was merely meant to be an inside-joke between my friend and I as girls and I did not in any way intend to confirm anything about my relationship with my husband.

19    Having heard and observed the appellant and her sponsor give evidence, the Tribunal made an adverse finding as to their credibility. The Tribunal stated at T[35] that it was not satisfied the oral evidence from the appellant and her sponsor was at all times plausible or convincing. The Tribunal further stated at T[35] that it found the appellant’s response to the queries about the Facebook evidence to be unconvincing and “relied on an acceptance that what she wrote had an intended meaning otherwise than the meaning that would be put on the actual words she wrote”. The Tribunal determined that in light of its concerns “it was not appropriate to rely on the evidence provided by the parties where it was not corroborated by credible evidence from other sources”.

20    The Tribunal noted that it was satisfied that the sponsor was the “sponsoring partner” of the appellant for the purposes of cl 801.221(2)(c) of the Regulations: T[36]. It was also satisfied that the parties were validly married as required by s 5F(2)(a) of the Act: T[38].

21    The Tribunal then considered whether the other requirements for a spousal relationship were met, commencing at T[40].

22    From T[40]–[42], the financial aspects of the relationship were considered. The Tribunal was not satisfied that more than limited weight could be placed on the appellant’s claims that she and the sponsor pooled finances and shared regular expenses due to the lack of objective documentary evidence to that effect. It also placed limited weight on the evidence of the joint bank account.

23    The Tribunal accepted that the appellant and sponsor lived together in a home owned by the sponsor’s younger sister in Point Claire, New South Wales, together with four other adults and three children: T[44]. At T[45] the Tribunal concluded that while there was a degree of cooperation between all adult members of the household, it was “hard to distinguish how the parties have clearly established their own household within this broader household”.

24    From T[46]–[53], the Tribunal further discussed the appellant’s Facebook records and the concerns the Tribunal held arising from them. It accepted that the Facebook records accessed by the Department and considered by the Delegate are not a complete representation of how the appellant and sponsor present themselves to their friends and family or the extent to which they are recognised as a married couple. It also accepted that the appellant would have had other Facebook posts that were not publically accessible and therefore not considered by the Delegate. However, it stated that the records that had been accessed were a “significant indicator” as to how the appellant represented her life at the time.

25    The Tribunal considered other relevant factors regarding the social aspects of the parties’ relationship from T[54]–[58], including evidence of a joint trip to Vietnam in March 2016 and statutory declarations from family members and friends, including Ms Thi Thanh Huong Nguyen and Mr Khoa Dang Trung Nguyen, attesting to the appellant’s relationship with the sponsor.

26    At T[62] the Tribunal noted the parties’ consistent evidence regarding the sponsor’s need for support as he gets older and the appellant’s desire to attend to his needs. The Tribunal noted it had no compelling evidence before it with regard to the sponsor’s medical condition or care needs, and that it had formed the view that the parties’ oral evidence on the issue “appeared somewhat rehearsed”. The Tribunal concluded that “the evidence provided by the parties did not indicate they draw companionship and emotional support from each other”.

27    Finally, from T[63]–[69], the Tribunal conducted an overall assessment of the totality of the evidence. At T[70] the Tribunal concluded that at the time of the decision, there was an overall lack of sufficient evidence to demonstrate that the appellant and sponsor were living together in a genuine and continuing relationship or that they had a mutual commitment to a shared life to the exclusion of others. As such, the Tribunal found that the parties were not in a genuine spousal relationship and affirmed the Delegate’s decision not to grant the appellant a Partner (Residence) (Class BS) visa.

Decision of the FCCA

28    The grounds of review relied on by the appellant at the hearing before the primary judge were as follows:

Ground 1

The second respondent (the Tribunal), erred in failing to lawfully consider the evidence in a statutory declaration made by the applicant’s spouse’s sister that:

a)     The applicant and her spouse share a room at her home.

Ground 4

The Tribunal erred in failing to lawfully consider the evidence in a statutory declaration of Khoa Dang Nguyen that the applicant and her spouse were “always smiling and laughing when they are with each other”.

Ground 5

The Tribunal failed to lawfully consider the evidence given by the applicant at hearing to the effect that she and her husband slept in the same room and same bed.

29    The primary judge rejected all three grounds.

Grounds 1 and 5

30    In relation to grounds 1 and 5, the primary judge dismissed the appellant’s submission that the Tribunal had failed to give genuine intellectual engagement with the appellant’s evidence relating to the sleeping arrangements of the appellant and sponsor.

31    Counsel for the appellant submitted that the failure to expressly refer to the evidence before the Tribunal as to the appellant and sponsor’s sharing of a bedroom was a failure of the Tribunal to engage in a genuine intellectual engagement with the evidence before it. This submission was also made in relation to the evidence given by the appellant’s sister-in-law that the appellant and the sponsor were always smiling and laughing when with each other, and that they shared a bed.

32    The primary judge did not accept that the Tribunal was required to expressly refer to the “occupation of the bed” nor was it evidence of such materiality in the context of the Tribunal’s findings that it required express reference. These grounds were dismissed.

Ground 4

33    The primary judge rejected this ground on the basis that the evidence in relation to the appellant and sponsor always smiling and laughing when together was not material. The primary judge noted that the statutory declaration which contained this evidence was expressly referred to in the Tribunal’s reasons, and as such did not accept that there was no genuine intellectual engagement with the evidence.

34    This ground was also rejected and the application dismissed.

The Appeal

35    As noted above, the appellant’s notice of appeal contains a single ground:

1.    The Federal Circuit Court erred in finding that the second respondent lawfully considered,

a.    evidence in a statutory declaration of the sister of the appellant’s spouse that;

i.    The appellant and her spouse share a room at her home.

b.    evidence given by the appellant at hearing to the effect that she and her husband slept in the same room and, by inference, in the same bed.

c.    evidence in a statutory declaration of Khoa Dang Nguyen that the applicant [sic] and her spouse were “always smiling and laughing when they are with each other”.

36    The appellant’s overarching challenge to the primary judge’s reasoning is his Honour’s finding that the Tribunal engaged in an active intellectual engagement with the evidence before it. The appellant submits that material evidence before the Tribunal was not properly evaluated and as such, the primary judge erred by upholding its decision.

37    The appellant referred to the decision of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, highlighting the following propositions she said arose from [24], [25] and [27]:

(a)    A decision-maker must read, identify, understand and evaluate representations. That is, they must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.

(b)    From that point, the decision maker may accord whatever weight or persuasive quality is thought appropriate. That is a matter or the decision maker.

(c)    The decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims”.

(d)    What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations.

(e)    None of the preceding analysis detracts from, or is inconsistent with, established principle that jurisdictional error may result if, for example, review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials.

38    The appellant observed that the majority in Plaintiff M1/2021 noted at [26] that, labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context, that being the limited role of a Court reviewing the exercise of an administrative decision. The appellant submitted that the majority did not overrule the requirement of a decision maker to engage in an active intellectual process directed towards relevant evidence or submissions. It merely reaffirmed that the place of such an enquiry was in the context of judicial review, and not merits review.

39    The appellant submitted that there was nothing in Plaintiff M1/2021 which cast doubt on the following statement of Murphy J in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [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.

40    Counsel for the appellant, Mr Karp, took the Court to the evidence of Thi Thanh Huong Nguyen, the sponsor’s sister and employer of the appellant, and Khoa Dang Trung Nguyen, a friend of the parties and whose wife worked at the nail salon with the parties, and to the transcript of the appellant’s oral evidence.

41    The appellant submits that the Tribunal failed to give that evidence the necessary genuine evaluation. The appellant also submits that the Tribunal failed to turn its mind to the significance of this evidence, in particular the evidence as to the sharing of a room and a bed, to the question of the nature of the parties’ relationship, and the primary judge erred in finding the evidence lacked materiality.

42    The respondent submits that the Tribunal did not overlook this evidence and gave it some weight favourable to the appellant. The respondent submits that it can be seen from the Tribunal’s detailed reasons that the Tribunal did properly identify, understand and consider the evidence. It also submits that the primary judge was correct in finding that the evidence was insufficiently material. As such, the primary judge was correct in its finding of a lack of jurisdictional error.

43    The respondent submits that the Tribunal may fall into jurisdictional error if there is a failure to consider a piece of evidence where it is demonstrated that the evidence was:

(a)    overlooked; and

(b)    of some import when regard is had to its cogency and potential relevance to the Tribunal’s reasons. Per Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [54]:

…[T]he Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction.

44    The respondent submitted that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court (per French, Sackville and Hely JJ) held at [47]:

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

45    In oral submissions counsel for the respondent also referred to Plaintiff M1/2021, noting that Kiefel CJ, Keane, Gordon and Steward JJ held at [24] that a decision-maker, having considered representations, can “sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker”. What must be shown to demonstrate compliance with the statutory power in issue “will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25].

46    Counsel for the respondent stated that the relevant representations, contained in the statutory declarations of the sponsor’s sister and the appellant’s friend, were brief and of a general nature. As such, the Tribunal was not required to show any further engagement with that material than it did in its written reasons.

Sub-grounds (a) and (b)

47    Sub-grounds (a) and (b) relate to evidence that the appellant and the sponsor share a room and a bed in the sponsor’s sister’s home.

48    At T[13] the Tribunal listed the additional documents provided by the appellant’s migration agent to the Tribunal prior to and at the hearing. The statutory declarations of Ms Thi Thanh Huong Nguyen and Mr Khoa Dang Trung Nguyen were expressly identified by the Tribunal.

49    The Tribunal heard oral evidence from the appellant regarding the sleeping arrangements of her and the sponsor. That evidence was as follows:

MR BARKER: And where does Mr Nguyen sleep?

THE INTERPRETER: Normally he sleep on the left-hand side and I sleep – I sleep on the left-hand side and he sleep other side. I – I was sleeping – I’m sleeping near the wall and I’m on his left-hand side. I’m sleeping on his left-hand side.

MR BARKER: Yes. Okay. You share a bedroom.

THE INTERPRETER: Yes.

50    At T[14] the Tribunal summarised the appellant’s evidence, including that she shared a bedroom with her sponsor. The evidence that the parties shared a room was corroborated by Ms Thi Thanh Huong Nguyen, who stated in her statutory declaration:

I see the couple on a daily basis as they share a room in my home and pay $200.00 rent every week. They have been living here together since 2012.

51    Pursuant to reg 1.15A(3)(b)(ii), the Tribunal was required to consider the nature of the household, including the living arrangements of the persons, as part of the broader consideration of the nature and circumstances of the relationship between the appellant and her sponsor.

52    In the course of considering the extent to which it could be demonstrated that the parties live together as a couple in a spousal relationship, the Tribunal accepted that the couple lived together in the same house: T[44].

53    At T[45] the Tribunal expressly referred to the contents of Ms Nguyen’s statutory declaration, in the context of the Tribunal’s evaluation of the “nature of the household”. The Tribunal set out, at T[45], in addition to evidence of the appellant, Ms Nguyen’s evidence that the parties “do the cooking at home together sometimes and they help each other with everything.”

54    The Tribunal read, understood and considered the written evidence before it. At T[58] the Tribunal stated that it had reviewed the witness statutory declarations, referring particularly to the declarations of Ms Thi Thanh Huong Nguyen, Mr Khoa Dang Trung Nguyen and the appellant’s mother. The Tribunal noted that the declarations attested to the parties’ relationship being genuine and referred to contact the declarants had with the parties as a couple. The Tribunal noted that it had placed “some weight” on the written evidence.

55    The Tribunal gave detailed consideration to the issue of whether it could be demonstrated the parties lived together as a couple in a spousal relationship or whether they lived in a large household where the adults work together at another location and share tasks associated with running the household. At T[45] after reviewing the available information as to the operation of the household, the Tribunal observed that “it was hard to distinguish how the parties have clearly established their own household within th[e] broader household”.

56    The Tribunal was aware of, and had read the two statutory declarations. As it was entitled to do, it attributed some weight to those declarations. Following its adverse finding as to the appellant’s credibility it did not attribute any weight to her evidence that was not corroborated by the evidence of another witness. The oral testimony of the appellant as to the parties sharing a bed was uncorroborated.

57    At T[66] having identified and considered the evidence, including the two statutory declarations, the Tribunal observed “it is however difficult to distinguish their own household arrangements, with respect to the cleaning of their personal space, personal cooking arrangements, from those of the wider household within which they live”.

58    The Tribunal expressly referred to and actively and genuinely considered the impugned evidence. The Tribunal did not need to set out the two statutory declarations verbatim to reveal it considered all parts of them. Its reasons reveal, in substance, that it accepted the appellant and sponsor shared a room in the household, and that they presented themselves as a couple to selected friends and family members. The impugned documentary evidence added nothing of substance to this acceptance. The appellant’s oral evidence was rejected in light of the Tribunal’s credit finding, and in the alternative, has not been shown by the appellant both to have been overlooked and to be sufficiently cogent and relevant that jurisdictional error is demonstrated.

59    The primary judge did not err in finding that the Tribunal did not fail to consider the evidence in the two statutory declarations, and part of the appellant’s oral evidence (primary judgment at [23]).

Sub-ground (c)

60    The evidence referred to in sub-ground (c) is found in the statutory declaration of Mr Khoa Dang Trung Nguyen. As discussed in [55] above, this evidence was before the Tribunal, which gave it “some weight” (T[58]). That evidence stated:

The couple are very good people. They are fun and I observe that they are always smiling and laughing when they are with each other.

61    Counsel for the appellant submitted the opinion of the appellant’s friends and acquaintances about the nature of her relationship could be very relevant to the Tribunal’s consideration of whether they were, in fact, a genuine couple.

62    At T[54] the Tribunal accepted the parties’ evidence that they socialise with other members of their household and when going out for a meal, often go out together as a household. The Tribunal also accepted that employees from the salon where the parties work also socialise with the parties and other members of their household.

63    It is clear that the Tribunal had read, understood and considered the totality of Mr Nguyen’s declaration as his declaration was the only documentary evidence as to the parties’ socialising with employees from the nail salon. However, the Tribunal considered that the evidence as to the social aspects of the parties’ relationship was consistent with what it considered the overall ambiguity in the appellant’s circumstances.

64    The primary judge disagreed with the appellant’s submission that the evidence was relevant to the Tribunal’s assessment of whether the persons represent themselves to other people as being married to each other and the opinion of the persons’ friends and acquaintances on the nature of the relationship, and the nature of the persons’ commitment to each other (regs 1.15A(3)(c)(i) and (ii) and 1.15A(3)(d)). The Tribunal discussed these aspects of the Regulations at T[46]–[53] and T[59]–[62] and observed at T[52]:

The Tribunal has formed a view about the social aspects of the parties’ relationship through considering all of the available evidence, including social media records….and other material provided with the review application.

65    The primary judge was entitled to find that the evidence that the appellant and sponsor were always smiling and laughing was immaterial, especially when viewed in light of the other social aspects of the relationship, and express reference to it was not required.

66    As Siopis, Kerr and Rangiah JJ observe in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [83]:

…The Tribunal also mentioned some aspects of the evidence relevant to the pooling of financial resources which it did not make findings upon. However, the Tribunal was not required to refer to or make findings upon every piece of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80]; Yusuf at [9]-[10], [77]. Rather, it was required to make findings upon the matters prescribed in reg 1.15A(3)…

(Emphasis added.)

67    The primary judge did not err in finding that the Tribunal had considered the evidence of Mr Nguyen and that there was no jurisdictional error.

68    None of the grounds are made out and the appeal should be dismissed.

Associate:

Dated:    3 March 2023