Campos v Minister for Immigration and Border Protection - [2019] FCA 1791 - FCA 2019 case summary — Zoe

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Campos v Minister for Immigration and Border Protection

[2019] FCA 1791

Federal Court of Australia|2019-11-01|Before: McKerracher J

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Court

Federal Court of Australia

Decision date

2019-11-01

Before

McKerracher J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

The appeal be dismissed.
Cost be fixed at $3,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

INTRODUCTION 1 The appellant is a Columbian citizen, born in 1987. She arrived in Australia in February 2012 on a student visa, at which time she was married to a citizen of Columbia, namely Mr Miller Jose Mora Flechas. The appellant and Mr Flechas were divorced in 2014. In the following year, the appellant met Mr Dempsey William Blake in Perth, Western Australia. Mr Blake is a United Kingdom citizen and was born in 1992. He arrived in Australia in 2005 and became an Australian citizen by grant. Mr Blake has a daughter from a previous relationship, born in 2013. 2 Shortly after their first meeting, the appellant and Mr Blake commenced a relationship and were married in Perth on 4 July 2015. Less than a month after being married, the appellant lodged an application for a Partner (Temporary) (Class UK) (subclass 820)/Partner (Residence) (Class BS) (subclass 801) visa, sponsored by Mr Blake (the sponsor). On the visa application form, the appellant and the sponsor stated that they had not lived separately and apart since they committed to a shared life together to the exclusion of all others. 3 The visa application included: (a) a sponsorship form (Form 40SP) completed by the sponsor; (b) statutory declarations by three supporting witnesses; (c) a birthday card from the sponsor to the appellant; (d) various letters sent to the appellant and the sponsor at their residential address in Balcatta; (e) a statement by the appellant; (f) documents relating to the appellant's divorce from her first husband; (g) a statement by the sponsor; and (h) photographs. 4 In September 2015, the appellant provided additional material to the Department for Immigration and Border Protection (as it then was named), which included: (a) a letter from the sponsor concerning his previous relationship; (b) a statutory declaration of the appellant; (c) a statutory declaration of the sponsor; (d) a letter from a bank to the sponsor concerning a joint bank account with the appellant; and (e) a copy of a residential tenancy agreement over the property in Balcatta listing both the appellant and sponsor as tenants. 5 Shortly after sending this additional information to the Department, the sponsor emailed the Department describing his deteriorated relationship with the appellant. A senior officer of the Department acknowledge receipt of that notification, seeking to confirm Mr Blake's withdrawal of his nomination in support of the appellant for her visa application in light of the relationship having 'broken down'. On 22 September 2015, the Department notified the appellant that her visa application had been refused. 6 The appellant lodged an application for review with the Administrative Appeals Tribunal. Prior to the hearing, the appellant provided a detailed statutory declaration made on 6 September 2016 to the Tribunal to which attached, amongst other things, copies of: (a) a Victim Impact Statement dated 13 June 2016 provided by the appellant to the Perth Magistrates Court; (b) an interim restraining order against the sponsor dated October 2015, to remain in force for two years from 1 October 2015; (c) a violence restraining order application made by the appellant against the sponsor listed for hearing in September 2016; (d) a Sir Charles Gairdner Hospital Department of Emergency Medicine discharge summary printed in September 2015; (e) a police statement made by the appellant at that time; (f) a police order protecting the appellant from the sponsor also made at about that time; (g) Facebook posts made by the appellant and the sponsor; (h) text messages exchanged between the appellant, the sponsor and the sponsor's mother; and (i) text messages exchanged between the appellant and the sponsor after their relationship started to deteriorate.

[3]

THE STATUTORY CONTEXT 7 Section 5 of the Migration Act 1958 (Cth) defines spouse as having 'the meaning given by section 5F'. Section 5F of the Act and reg 1.15A of the Migration Regulations 1994 (Cth) relevantly provide: 5F Spouse (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship. (2) For the purposes of subsection (1), persons are in a married relationship if: (a) they are married to each other under a marriage that is valid for the purposes of this Act; and (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and (c) the relationship between them is genuine and continuing; and (d) they: (i) live together; or (ii) do not live separately and apart on a permanent basis. (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. 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. … 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).

[7]

Grounds of appeal 12 The following grounds of appeal were advanced in this Court: 1. The Primary Judge was in error in failing to uphold the review grounds raised by the Appellant; 2. The [Tribunal] misdirected itself about the question it had to answer. The Tribunal erroneously took the view that an unstable relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. Particulars a. The Tribunal stated that it asked the [appellant]: "to explain why she went ahead with marrying the sponsor given the instability of their relationship" and it recorded the [appellant's] responses: "She said they married because they loved each other very much and she "got used to arguing". She said the sponsor did not physically harm her until after their marriage."(At CB 514, [56]) b. The Tribunal also asked the [appellant]: "to describe the emotional support she received from the sponsor." The Tribunal recorded the [appellant's] response: "he was "lovely and charming" until he became aggressive." (At CB 514, [57]) c. The Tribunal stated that the [appellant's] above response "does not satisfy the Tribunal that the sponsor provided her with emotional support commensurate with that in a genuine spouse relationship." (At CB 514, [57]) d. The Tribunal erroneously took the view that an unstable relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. 3. The Tribunal failed to engage in an active intellectual process of considering the [appellant's] and Sponsor's evidence, failed to make findings on the relevant matters prescribed under reg. 1.15A(3)(a) to (d) of the Migration Regulations 1994, and failed to give reasons for its failure to be satisfied that the [appellant] and Sponsor were not in a genuine and continuing married relationship. Particulars a. The Tribunal set out the oral and documentary evidence before it regarding the matters set out in reg. 1.15A(3)(a) to (d), namely the financial aspects of the relationship, nature of the household, social aspects of the relationship and nature of the persons' commitment to each other. b. However, in reaching its ultimate conclusion at [61] that the [appellant] and Sponsor were not in a genuine and continuing married relationship, the Tribunal failed to make findings on material questions of fact, namely whether the above matters individually and cumulatively supported the existence of a married relationship. 4. The Tribunal made a jurisdictional error by failing to take into account relevant material or documentary evidence in coming to the conclusion that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement. Particulars a. The Tribunal based its conclusion on the existence of a clause that no more than one person may ordinarily live at the premises (CB 380, 512). b. The tenancy agreement contained a provision allowing for the property to be sub-let with the lessor's consent (CB 381). c. The tenancy agreement was initially signed on 11 February 2015 (CB 394), around 2 months before the [appellant] met the Sponsor (CB 264). d. On the signature page of the tenancy agreement the [appellant's] name and signature appears in the field designated for the tenant, besides which appears the name and signature of the lessor's agent, Stephanie Mack, in the field designated for the witness (CB 394). e. Adjacent to where the [appellant's] name is added to the tenancy agreement are the initials of 3 people, the uppermost of which appears to read 'SM' (CB 379). f. The [appellant] and the Sponsor in a joint email to the Department wrote 'Tenancy Agreement - as the real state (sic) has just included Ingrid on the contract' (CB 154). g. The Sponsor in his email to the Department revoking the [appellant's] sponsorship mentioned he was "in the process of removing her from the lease" (CB 175). h. The Tribunal failed to take into account the above in concluding that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement. 5. Further or in the alternative, the Tribunal made a jurisdictional error by irrationally or illogically coming to the conclusion that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement in circumstances where that conclusion was not open to the Tribunal on the evidence before it. Particulars Particulars above at Ground 4, paragraphs (a)-(h) are repeated. 6. The Tribunal made a jurisdictional error by failing to properly consider a matter that it was required to consider in considering all of the circumstances of the relationship between the [appellant] and the Sponsor pursuant to reg. 1.15A(2) and reg. 1.15A(3) of the Migration Regulations 1994. Particulars a. Subregulation 1.15A(3)(d)(iv) required the Tribunal, in considering the nature of the persons' commitment to each other, to consider whether, at the time of lodgement of the visa application, the [appellant] and the Sponsor saw the relationship as a long term one. b. The Tribunal failed to consider whether the [appellant] and the Sponsor saw the relationship as a long term one at the required time. 7. The Tribunal made a jurisdictional error by failing to properly consider a matter that it was required to consider in considering all of the circumstances of the relationship between the [appellant] and the Sponsor pursuant to reg. 1.15A(2) and reg. 1.15A(3) of the Migration Regulations 1994. Particulars a. Subregulation 1.15A(3)(d)(iii) required the Tribunal, in considering the nature of the persons' commitment to each other, to consider "the degree of companionship and emotional support that the persons draw from each other". b. The [appellant] and the Sponsor provided documentary evidence as to the degree of companionship and emotional support that they drew from each other in statutory declarations and other statements (CB 157-160; CB 161-164; CB 175; CB 264-271) and in text messages (CB 306-378, including text messages sent after the relationship started to deteriorate between 30 August 2015 to 11 September 2015 (CB 269 at [86], Attachment IJTC016 at CB 444-479); c. The Tribunal asked the [appellant] to describe the "emotional support" she received from the Sponsor (CB 514 at [57]). d. However, the Tribunal failed to consider the degree of companionship that the persons draw from each other. e. The Tribunal also failed to consider the degree of companionship and emotional support that the Sponsor drew from the [appellant]. 8. The Tribunal made a jurisdictional error by overlooking relevant material in its consideration of the financial aspects of the relationship pursuant to reg. 1.15A(2) and reg. 1.15A(3)(a) of the Migration Regulations 1994 ("Regulations"). Particulars a. At paragraph 16 of its statement of reasons, the Tribunal "expressed its concern that there is no documentary evidence showing how the sponsor may have contributed to daily expenses." (CB 511). b. At paragraph 26 of its statement of reasons, the Tribunal stated that it "is satisfied on the evidence that the [appellant] paid some of the relationship's daily living costs between April and August 2015 but there is no documentary evidence of the sponsor's financial contribution to the relationship." c. There was documentary evidence of the sponsor's financial contribution to the relationship through the tenancy agreement over the property [in] Balcatta which provided for rent payments, an agreement that sponsor as well as the [appellant] had signed (CB 379-397). d. The Tribunal overlooked this documentary evidence and made a jurisdictional error.

[8]

Ground 1 13 Ground 1 does not advance a specific argument, but contends that the primary judge was in error in failing to uphold the seven grounds of review raised in the re-amended application. The grounds of review (as re-amended) before the primary judge in the Federal Circuit Court were: 2. The Tribunal misdirected itself about the question it had to answer. The Tribunal erroneously took the view that an unstable relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. Particulars a) The Tribunal stated that it asked the [appellant]: "to explain why she went ahead with marrying the sponsor given the instability of their relationship" and it recorded the [appellant's] responses: "She said they married because they loved each other very much and she "got used to arguing". She said the sponsor did not physically harm her until after their marriage." b) The Tribunal also asked the [appellant]: "to describe the emotional support she received from the sponsor." The Tribunal recorded the [appellant's] response: "he was "lovely and charming" until he became aggressive." c) The Tribunal stated that the [appellant's] above response "does not satisfy the Tribunal that the sponsor provided her with emotional support commensurate with that in a genuine spouse relationship." d) The Tribunal erroneously took the view that an unstable relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. … 4. The Tribunal failed to engage in an active intellectual process of considering the [appellant's] and Sponsor's evidence, failed to make findings on the relevant matters prescribed under reg. 1.15A(3)(a) to (d) of the Migration Regulations 1994, and failed to give reasons for its failure to be satisfied that the [appellant] and Sponsor were not in a genuine and continuing married relationship. Particulars (a) The Tribunal set out the oral and documentary evidence before it regarding the matters set out in reg. 1.15A(3)(a) to (d), namely the financial aspects of the relationship, nature of the household, social aspects of the relationship and nature of the persons' commitment to each other. (b) However, in reaching its ultimate conclusion at [61] that the [appellant] and Sponsor were not in a genuine and continuing married relationship, the Tribunal failed to make findings on material questions of fact, namely whether the above matters individually and cumulatively supported the existence of a married relationship. 5. The Tribunal made a jurisdictional error by failing to take into account relevant material or documentary evidence in coming to the conclusion that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement. Particulars (a) The Tribunal based its conclusion on the existence of a clause that no more than one person may ordinarily live at the premises. (b) The tenancy agreement contained a provision allowing for the property to be sub-let with the lessor's consent. (c) The tenancy agreement was initially signed on 11 February 2015, around 2 months before the [appellant] met the Sponsor. (d) On the signature page of the tenancy agreement the [appellant's] name and signature appears in the field designated for the tenant, besides which appears the name and signature of the lessor's agent, Stephanie Mack, in the field designated for the witness. (e) Adjacent to where the [appellant's] name is added to the tenancy agreement are the initials of 3 people, the uppermost of which appears to read 'SM'. (f) The [appellant] and the Sponsor in a joint email to the Department wrote 'Tenancy Agreement - as the real state (sic) has just included Ingrid on the contract'. (g) The Sponsor in his email to the Department revoking the [appellant's] sponsorship mentioned he was "in the process of removing her from the lease". (h) The Tribunal failed to take into account the above in concluding that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement. 5A. Further or in the alternative, the Tribunal made a jurisdictional error by irrationally or illogically coming to the conclusion that it was implausible that a property manager added the [appellant] as a co-tenant to the Sponsor's tenancy agreement in circumstances where that conclusion was not open to the Tribunal on the evidence before it. Particulars Particulars above at Ground 5, paragraphs (a)-(h) are repeated. … 8. The Tribunal made a jurisdictional error by failing to properly consider a matter that it was required to consider in considering all of the circumstances of the relationship between the [appellant] and the Sponsor pursuant to reg. 1.15A(2) and reg. 1.15A(3) of the Migration Regulations 1994. Particulars a. Subregulation 1.15A(3)(d)(iv) required the Tribunal, in considering the nature of the persons' commitment to each other, to consider whether, at the time of lodgement of the visa application, the [appellant] and the Sponsor saw the relationship as a long term one. b. The Tribunal failed to consider whether the [appellant] and the Sponsor saw the relationship as a long term one at the required time. 9. The Tribunal made a jurisdictional error by failing to properly consider a matter that it was required to consider in considering all of the circumstances of the relationship between the [appellant] and the Sponsor pursuant to reg. 1.15A(2) and reg. 1.15A(3) of the Migration Regulations 1994. Particulars a. Subregulation 1.15A(3)(d)(iii) required the Tribunal, in considering the nature of the persons' commitment to each other, to consider "the degree of companionship and emotional support that the persons draw from each other". b. The [appellant] and the Sponsor provided documentary evidence as to the degree of companionship and emotional support that they drew from each other in statutory declarations and other statements and in text messages, including text messages sent after the relationship started to deteriorate between 30 August 2015 to 11 September 2015; c. The Tribunal asked the [appellant] to describe the "emotional support" she received from the Sponsor. d. However, the Tribunal failed to consider the degree of companionship that the persons draw from each other. e. The Tribunal also failed to consider the degree of companionship and emotional support that the Sponsor drew from the [appellant]. 10. The Tribunal made a jurisdictional error by overlooking relevant material in its consideration of the financial aspects of the relationship pursuant to reg. 1.15A(2) and reg. 1.15A(3)(a) of the Migration Regulations 1994 ("Regulations"). a. At paragraph 16 of its statement of reasons, the Tribunal "expressed its concern that there is no documentary evidence showing how the sponsor may have contributed to daily expenses." b. At paragraph 26 of its statement of reasons, the Tribunal stated that it "is satisfied on the evidence that the [appellant] paid some of the relationship's daily living costs between April and August 2015 but there is no documentary evidence of the sponsor's financial contribution to the relationship." c. There was documentary evidence of the sponsor's financial contribution to the relationship through the tenancy agreement over the property [in] Balcatta which provided for rent payments, an agreement that sponsor as well as the [appellant] had signed. d. The Tribunal overlooked this documentary evidence and made a jurisdictional error. (Emphasis added.) 14 All of the grounds pressed in the appellant's re-amended application before the primary judge are now raised on appeal. Ground 1, challenging the correctness of the primary judge's decision, will be resolved by having regard to the other seven grounds raised.

[9]

Ground 2 15 By ground 2 of the appeal, reflecting ground 2 in the Federal Circuit Court, the appellant essentially contends the Tribunal was obliged to determine, amongst other things, whether the parties met the spousal definition in s 5F of the Act. 16 At the time of the lodgement of the visa application on 28 July 2015, the Tribunal's statutory task included consideration of whether the relationship between the parties was 'genuine and continuing' as at that date with regard to s 5F(2)(c) of the Act. It was not in dispute in the Tribunal that the relationship between the appellant and the sponsor had 'highs and lows'. The appellant accepted she and the sponsor had argued and she had left the house a couple of times before the marriage. The appellant also told the Tribunal that she 'got used to the arguments', that the sponsor would apologise, and that he had not hurt her physically before the marriage. The first time the sponsor had hurt the appellant physically was four weeks after the marriage. 17 The Tribunal referred at the hearing to the text messages exchanged between the parties, noting '… Well, I don't know if you were always in fact happy with him because of what I've read in your SMS's'. The Tribunal further asked the appellant 'Reading those SMS's, it makes me wonder why you went ahead with that marriage when the relationship was so turbulent'. By its statement of reasons, the Tribunal referred to the 'instability' of the relationship, saying (at [56]): The Tribunal asked the [appellant] to explain why she went ahead with marrying the sponsor given the instability of their relationship. She said they married because they loved each other very much and she "got used to arguing". She said the sponsor did not physically harm her until after their marriage. The first time he hurt her was one month after they married and the second time was on 11 September 2015. 18 The Tribunal also concluded (at [57]): The Tribunal asked the [appellant] to describe the emotional support she received from the sponsor. In response she said he was "lovely and charming" until he became aggressive. Her response does not satisfy the Tribunal that the sponsor provided her with emotional support commensurate with that in a genuine spouse relationship. 19 The appellant relies upon a Federal Circuit Court decision of Singh v Minister for Immigration and Anor [2016] FCCA 114 in which it was held that there was an error for the Tribunal to find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others (at [53]). It was held that in forming that erroneous view, the Tribunal misdirected itself about the question it had to answer. Rather than considering whether the appellant and the sponsor at the relevant time had a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal asked itself whether they had a good relationship. It was held in Singh that the Tribunal fell into jurisdictional error (at [54]). 20 The appellant argues the same error has been made in this instance. The Tribunal assumed, because the relationship between the parties had featured arguments and instability, that the relationship between the appellant and the sponsor could not be a genuine relationship. The appellant argues this was jurisdictional error.

[10]

Consideration 21 It is unnecessary to comment on Singh as, in my view, the circumstances in this instance are distinguishable. The primary judge was correct to conclude the Tribunal did not misdirect itself. It addressed the question of whether the appellant was a spouse of the sponsor within the meaning in s 5F of the Act. It had to consider the criteria in s 5F(2) of the Act by having regard to the matters in reg 1.15A(3) of the Regulations. The Tribunal's reasons make it clear that it understood its task. The parts to which the appellant draws attention appear in the context of the Tribunal's consideration of the nature of the commitment for the purposes of reg 1.15A(3)(d) of the Regulations. This required the Tribunal to consider: (a) the duration of the relationship; (b) the length of time during which the appellant and the sponsor had lived together; (c) the degree of companionship and emotional support each drew from one another; and (d) whether they each saw the relationship as a long-term one. 22 It cannot be said that questions raised and conclusions reached about the stability of the relationship and the emotional support provided by the sponsor were irrelevant to the Tribunal's assessment of the factors in reg 1.15A(3)(d) of the Regulations. The questions and findings complained of by the appellant need to be viewed in the context of the evidence as a whole, which included evidence and findings that the relationship, which lasted only six months, 'stopped and started again a number of times' and that the appellant 'left the house a couple of times even before their marriage'. The Tribunal was correct to consider this evidence and was entitled to draw the conclusion that the emotional support provided by the sponsor was not commensurate with a genuine spousal relationship as defined by the Act and Regulations. Those factors are capable of going to the question of whether there was a 'mutual commitment'. In relation to the arguments for the appellant, this finding does not suggest, as argued, that the Tribunal took the view that an unstable relationship could not also be a genuine relationship. Assuming that Singh was correctly decided, the facts and the approach taken in this instance are distinguishable.

[11]

Ground 3 23 The appellant relies on the Full Court decision in He v Minister for Immigration and Border Protection (2017) 255 FCR 41, in which the Full Court (Siopis, Kerr and Rangiah JJ) said (at [76]): In our opinion, the requirement that the Tribunal "consider" the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of "the nature of the household", the Tribunal must ask: (i) whether there are children and whether there is any joint responsibility for their care and support; (ii) what the living arrangements of the persons are; and (iii) whether and to what extent there is sharing of the responsibility for housework. 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: cf Paerau at [27], [69] and [119]. 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.) 24 The appellant contends that the Tribunal failed to make findings upon each of the prescribed matters numbered with Roman numerals. It addressed the 'financial aspects of the relationship' under reg 1.15A(3)(a) of the Regulations, but did not make a finding on the extent of any pooling of financial resources (reg 1.15(3)(a)(iii)) when it was clear on the evidence before the Tribunal that the parties had pooled their financial resources to a degree. The Tribunal also did not make a finding on the basis of any sharing of the day to day household expenses (reg 1.15(3)(a)(iv)). 25 The Tribunal indicated it was 'satisfied on the evidence that the [appellant] paid some of the relationship's daily living costs between April and August 2015, but found no documentary evidence of the sponsor's financial contribution to the relationship' (at [26]). The appellant says the Tribunal failed to make a finding as to whether the financial aspects of the relationship supported, or weighed against, a conclusion that the parties were in a genuine spousal relationship. 26 The appellant also refers to the following statements within the Tribunal's reasons (at [28]-[31]): The nature of the household 28. The [appellant's] statutory declaration declares she and the [appellant] lived at … a rental property at Balcatta, WA. The [appellant] stated she moved in to the premises in April 2015 and that at that time she was the sponsor's girlfriend. 29. A copy of the tenancy agreement has been submitted and the [appellant's] name as tenant is added in handwriting to the sponsor's name which is typed into the agreement. The tenancy was for a period of one year expiring on 4 March 2016. The [appellant] claims in her statutory declaration (at paragraph 42) that the property manager made the notation adding her as a tenant. 30. The Tribunal notes that the tenancy agreement states no more than one person may ordinarily live at the premises. On that basis it appears implausible that a property manager would have added the [appellant] as a co-tenant. 31. The [appellant's] statutory declaration declares she and the sponsor shared cleaning responsibilities on weekends and she did most of the cooking and washing. She confirmed that claim at the hearing. The sponsor had access to his daughter at least once a fortnight and the [appellant] said she supported the sponsor with care of his child. 27 The appellant complains, however, that the Tribunal made no finding on the matters described in reg 1.15A(3)(b) and did not give a conclusion as to whether the matters set out under '[t]he nature of the household' supported or weighed against a finding that the parties were in a genuine spousal relationship. 28 The appellant complains the Tribunal made no finding on the reg 1.15A(3)(b)(i) question of any joint responsibility for the care and support of children. This omission was in contrast to the content of the statutory declaration of 3 September 2015 in which the sponsor stated he had a daughter and that when the daughter stayed with them, they shared responsibility. The appellant also addressed that issue in her statutory declaration on 6 September 2016 in five paragraphs. 29 The Tribunal dealt with the social aspects of the relationship and said (at [32]-[38]): Social aspects of the relationship 32. The Tribunal expressed its concern to the [appellant] that the people who gave statutory declarations in support of the relationship to the Department of [I]mmigration only knew her or her husband for a short time and, accordingly, their opinions on the relationship cannot be given much weight. The [appellant] responded by acknowledging that the relationship developed very quickly. 33. The [appellant's] statutory declaration includes the information that she and the sponsor regularly socialised with the sponsor's mother, Marcela and Mario Bejarano, Gavin O'Donovan, and Jennifer Teuchert Walsh. 34. Photographs of the parties together and with others including a number from Facebook have been submitted. The date on the last Facebook photograph of the couple is 5 September (2015). 35. The [appellant] appears to have had quite a close relationship with the sponsor's mother as evidenced by copies of their regular text messages to each other. The [appellant] said the sponsor's mother was supportive and kind to her after the sponsor first hit her about one month after their marriage. The [appellant] said she has deleted her mother-in-law from her Facebook page. 36. During the hearing the [appellant] said she and the sponsor had an active social life that included a weekly meal with his mother and socialising with friends on the weekend. 37. They socialised with the other witness only about once a month because she lived far from them. The other witness is her friend historically but she introduced her to the sponsor in April 2015. 38. The [appellant] said the sponsor met her family by Skype but not in person. The sponsor's brother, Dale, came to their wedding from the United Kingdom. She has deleted the sponsor's brother from her Facebook page. 30 The Tribunal summarised some of the appellant's evidence on the matter and noted (at [35]) that the appellant appeared to have had 'quite a close relationship with the sponsor's mother'. However, it is said, the Tribunal again made no findings on the prescribed matters and did not give a conclusion as to whether the matters set out in reg 1.15A(3)(c) of the Regulations supported or weighed against a finding that the parties were in a genuine spousal relationship. 31 Similarly, in relation to reg 1.15A(3)(d), as to 'the nature of the person's commitment to each other', the Tribunal made a finding (at [57]) to this effect: The Tribunal asked the [appellant] to describe the emotional support she received from the sponsor. In response she said he was "lovely and charming" until he became aggressive. Her response does not satisfy the Tribunal that the sponsor provided her with emotional support commensurate with that in a genuine spouse relationship. 32 The appellant's response to a question about the emotional support she had received from the sponsor did not satisfy the Tribunal that the sponsor provided her with emotional support commensurate with that of a genuine spousal relationship. But the appellant stresses that the Tribunal was required to consider the degree of companionship provided by the sponsor as well as emotional support. The Tribunal did not ask the appellant about the degree of companionship she drew from the sponsor. Its investigation was deficient. The Tribunal, further, did not give a finding as to whether the matters set out in reg 1.15A(3)(d) supported or weighed against a conclusion that the parties were in a genuine spousal relationship. 33 The primary judge's conclusion (at [36]), that 'it was not necessary for the Authority [sic] to make determinative findings in respect of each of the subparagraphs' was, the appellant says, plainly incorrect in the light of the Full Court's judgment in He (at [76]).

[12]

Consideration 34 As indicated, this ground relies heavily on the decision in He. It is true that the decision in He emphasises the need for the Tribunal to consider and make findings on each of the prescribed principal matters in (a)-(d) of reg 1.15A(3) and that it is also necessary to consider and make findings in relation to each of the prescribed matters numbered with Roman numerals in reg 1.15A(3) and any other relevant circumstances of the relationship. In He, the Full Court said (at [50]): The Minister is required to consider each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3), and any other relevant circumstances of the relationship. 35 However, there are other important observations in He to bear in mind, including: (a) the reasoning of the Tribunal need not be structured in a manner that formulaically addresses the relevant matters, in turn: see He (at [82]); (b) findings may be inferred, rather than be express: see He (at [85]); and (c) (as previously noted) a finding that there is no material or insufficient material to be able to form a conclusion will suffice: see He (at [76]). 36 He makes it clear the Minister must consider all the matters set out in the Act and the Regulations. While it may be helpful to do so by a check-list, that approach is not required. Further, if it is obvious that the nature and expression of findings on one matter will extend to other topics requiring consideration (which is not at all uncommon), a finding on the second or subsidiary matter may properly be inferred. 37 The Tribunal is not required to refer to or make findings on every piece of evidence as opposed to the topics or matters referred to in reg 1.15A(3). That important point is made in He (at [83]), where the Court also confirmed that the impressionistic and evaluative nature of the Tribunal's task must be taken into account when drawing inferences from its reasons. 38 Once those important principles are taken into consideration, it is clear that properly understood and read the Tribunal did consider all the relevant factors in reg 1.15A in this case. 39 Certainly the Tribunal considered financial aspects of the relationship as required by reg 1.15A(3)(a) (at [16]-[27]). In addition, the Tribunal set out the evidence before it on that topic (at [17]-[25]). It is sufficiently apparent from this material that findings in relation to regs 1.15A(3)(a)(i), 1.15A(3)(a)(ii) and 1.15A(3)(a)(iv) were made (see [28]) and, in relation to reg 1.15A(3)(a)(v), the reasoning of the Tribunal (at [26]) suffices. The nature of the discussion about joint bank accounts suffices, in the context of the reasons taken as a whole, to give rise to an inference that the Tribunal found there was no adequate evidence of pooling of financial resources. 40 There is no doubt that the Tribunal had regard to the nature of the household as required by reg 1.15A(3)(b). This is clear from the Tribunal's reasons (at [28]-[31]), which have already been set out. As I read the reasons, by summarising the appellant's evidence, the Tribunal was accepting that evidence. There is no suggestion of rejection of this part of the evidence. I accept the submission for the Minister that the finding in relation to the tenancy agreement (at [30] set out above) is relevant for reg 1.15A(3)(a)(ii), but should also be read with the finding (at [58]) to this effect: The [appellant] and the sponsor appear to have lived together under the same roof for a period of about six months but during that period they separated on a number of occasions as documented by their text messages and as conceded by the [appellant] at the hearing. 41 In a record of this nature, or even in reasons for judgment, it is not necessary to formulaically prescribe 'I find' before each finding. In this instance where the record indicates no rejection of the evidence advanced by a party, it is reasonable to infer that such material has been accepted. But how much that will assist the appellant depends on a process of weighing a finding to that effect with others. 42 The Tribunal also considered the social aspects of the relationship as required by reg 1.15A(3)(c). It considered (at [32]-[38] set out above): (a) statutory declarations given in support of the relationship by those who knew the appellant and her sponsor, but noted, given the duration of their acquaintance, could only give the evidence limited weight: The [appellant's] statutory declaration includes the information that she and the sponsor regularly socialised with the sponsor's mother, Marcela and Mario Bejarano, Gavin O'Donovan, and Jennifer Teuchert Walsh. (b) photographs of the appellant and her sponsor together and with others; (c) text messages between the appellant and the sponsor's mother; (d) evidence given at the hearing of the appellant and the sponsor's social life; and (e) evidence as to the appellant's relationship with other members of the sponsor's family. 43 The Tribunal then considered the evidence of the appellant's witness (at [39]-[47]): Oral evidence from Ms M… B… 39. The witness told the Tribunal that she has been a permanent resident of Australia for about one year. 40. She first met the [appellant] in late 2013 as they had friends in common. 41. She could not recall when she first met the sponsor but it was at a dinner at the house in Balcatta where the [appellant] lived with the sponsor. It was early on in their relationship. 42. She spent time with the couple 3 or 4 times before their marriage and she attended their wedding in July. 43. Because the [appellant] and the sponsor married so quickly, she said she was worried, but on seeing them together, her impression was they were "in love" and had a "pretty good relationship." 44. After the wedding she thinks she saw them together only once. Then, in September, the [appellant] told her that the sponsor had hit her. Mrs B… said she was surprised to learn the sponsor had been violent towards the [appellant] because that seemed out of character. 45. In her opinion the sponsor changed after marriage and treated the [appellant] as his possession. She said that is her perception and has not been said. 46. The [appellant] has lived with her and her husband since the relationship broke down and is recovering from the effects of the sponsor's conduct. 47. The Tribunal can gives [sic] minimal weight to Ms B…'s oral evidence because she only appears to have spent time with the parties together on 4 or 5 occasions including only once after their marriage in late July 2015. 44 Importantly, the Tribunal concluded on the social aspects of the relationship (at [48]): The evidence before the Tribunal as outlined above fails to satisfy it that family and friends recognised the [appellant] and the sponsor's relationship as a genuine and continuing married relationship. 45 There is little doubt that findings, albeit adverse, were in fact made. The Tribunal was not satisfied that the appellant's family and friends recognised the relationship was genuine and continuing. Without descending to the minute detail of the record, there has been a close examination of all the aspects the Tribunal is required to consider in such a claim. There is no scope for a complaint of a lack of an active intellectual process. Nor can it be doubted that the ultimate view reached was capable of being reached based on the evidence before the Tribunal. Findings on all of the factors in reg 1.15A(3) are at least implied if not explicit. This ground cannot succeed.

[13]

Ground 4 and ground 5 46 Here the appellant complains of a failure to take into account relevant evidence and illogicality, with particular focus on the Tribunal's statement (at [30]). There the Tribunal records: … the tenancy agreement states no more than one person may ordinarily live at the premises (Tribunal file, folio 173). On that basis it appears implausible that a property manager would have added the [appellant] as a co-tenant. In other words, this is a rejection of the evidence for the appellant to that effect. 47 It is argued on appeal that an examination of the tenancy agreement and the parties' communications to the Department shows that the addition of the appellant to the tenancy agreement was done with the full knowledge and cooperation of the sponsor and the property manager. The appellant points to the signature page of the tenancy agreement where the appellant's name and signature appears in the field designated for the tenant, beside which appears the name and signature of the lessor's agent in the field designated for the witness. Adjacent to where the appellant's name is added to the tenancy agreement are the initials of three people. The uppermost of these appears to read 'SM', being those of the agent. The appellant says this shows the addition of the appellant to the tenancy agreement was authorised by the agent property manager. 48 In addition, the appellant and the sponsor, in a joint email to the Department, dated 4 September 2015, wrote 'Tenancy agreement - as the real state [sic] has just included [the appellant] on the contract'. In addition to this, the sponsor, in his email to the Department on 14 September 2015 revoking the appellant's sponsorship, mentioned that he was 'in the process of removing her from the lease'. 49 The appellant complains that the Tribunal failed to take into account the above documentary evidence in concluding that it was implausible that a property manager added the appellant as a co-tenant to the sponsor's tenancy agreement. By reaching this conclusion, it is argued that the Tribunal made a jurisdictional error by failing to engage intellectually with the relevant documentary material, being the tenancy agreement. 50 The primary judge is also said to have erred when he said in his reasons (at [39]-[40]): 39. The Court is not satisfied that the observation about the handwritten additions was in any way material to the Tribunal's reasoning in relation to whether or not the relationship was genuine. Even if there was an error being the subject of implausibility as to whether the [appellant] was a party to the lease agreement, there was a not a material factual error that could give rise to any jurisdictional error. 40. On the face of the material before the Court, there is no basis for the Court to conclude that the Tribunal failed to take into account the other provisions or the communications that were referred to. The reasoning in respect of implausibility was open to the Tribunal and does not reveal any error. No jurisdictional error is made out by ground 5.

[14]

Consideration 51 For precision, it is worth repeating the Tribunal's reasons regarding the nature of the household (at [28]-[31]): 28. The [appellant's] statutory declaration declares she and the [appellant] lived at ... a rental property at Balcatta, WA. The [appellant] stated she moved in to the premises in April 2015 and that at that time she was the sponsor's girlfriend. 29. A copy of the tenancy agreement has been submitted (annexure IJCT010) and the [appellant's] name as tenant is added in handwriting to the sponsor's name which is typed into the agreement. The tenancy was for a period of one year expiring on 4 March 2016. The [appellant] claims in her statutory declaration (at paragraph 42) that the property manager made the notation adding her as a tenant. 30. The Tribunal notes that the tenancy agreement states no more than one person may ordinarily live at the premises (Tribunal file, folio 173). On that basis it appears implausible that a property manager would have added the [appellant] as a co-tenant. 31. The [appellant's] statutory declaration declares she and the sponsor shared cleaning responsibilities on weekends and she did most of the cooking and washing. She confirmed that claim at the hearing. The sponsor had access to his daughter at least once a fortnight and the applicant said she supported the sponsor with care of his child. 52 The primary judge concluded that it was clearly open to the Tribunal to regard this aspect of the evidence as being implausible and, perhaps more significantly, that the Tribunal's observation was in no way material to the Tribunal's ultimate decision, so that even if it had been made in error, that error could not give rise to any jurisdictional error. 53 There was countervailing evidence to that advanced for the appellant, not least of which was the fact that the tenancy agreement provided that the occupancy was limited to one person. Clearly the Tribunal relied upon this factor in reaching a conclusion of implausibility. Manifestly, the Tribunal did not accept that the alterations to the document were what the appellant contended them to be. This may have been an incorrect finding, it may have been harsh and it may have been unduly sceptical. Nonetheless, it was certainly a finding open to the Tribunal on the evidence. 54 Further, in relation to the other ground about this aspect of the evidence, it cannot be said that the finding was one which no logical or rational decision-maker might have arrived at on the evidence before the Tribunal in accordance with the requirement in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [135]). It certainly cannot be said that there is extreme illogicality or irrationality in the Tribunal's decision. Illogicality or irrationality can extend, not only to the end result, but also the fact finding leading to the end result: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (at [47]). The decisions have all emphasised the question will always be whether there is jurisdictional error in the Tribunal decision: see, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. Where Robertson J said (at [150]-[151]): 150 Must it always be the case, as submitted by the Minister, that illogicality or irrationality are to be considered only in relation to the end result, the decision itself? 151 The Minister referred for this contention to Minister for Immigration and Citizenship v SZMDS at [130]-[131]. But in my opinion the reasons of Crennan and Bell JJ do not support a focus limited to the end result, albeit the overarching question is whether the decision was affected by jurisdictional error. Similarly, I do not read the reasons for judgment of the third member of the majority, Heydon J, as limiting the enquiry to the end result. (Emphasis added.) 55 The inquiry at this part of the Tribunal's reasons was into the nature of the household shared by the appellant and the sponsor. The fundamental point is that the Tribunal was still satisfied that the appellant and the sponsor lived together at the relevant time, albeit with a few separations. Even if the appellant's account about the tenancy agreement was correct, contrary to the Tribunal's findings, that would not have affected the Tribunal's conclusion in favour of the appellant that in fact the appellant and the sponsor did live together, albeit with a few separations. Ground 4 and ground 5 cannot be established.

[16]

Consideration 57 The primary judge rejected this argument (at [42]-[43]) where his Honour said: 42. In relation to ground 8, Mr Blades submitted that the Tribunal had erred by failing to make a finding or to take into consideration the requirement under r 1.15A(3)(d)(iv) of the Regulations. The Tribunal's reasons are not to be read with a keen eye for error and must be read as a whole. It is apparent that the Tribunal considered the nature of the commitment of the parties to each other in the context of a duration that lasted only six weeks after the filing of the application. 43. The Tribunal referred to the [appellant's] statutory declaration and the notional commitment as well as the instability of the relationship. It was not necessary for the Tribunal to make an express finding referring to the relationship being a long term one. Based on the material before the Court, the Court accepts that the Tribunal took into account each of the subparagraph considerations under r 1.15(3)(d) of the Regulations in considering the nature of the [appellant's] and sponsor's commitment to each other. It was not necessary for the Tribunal to make express findings on each subparagraph. The Court finds there was real and meaningful consideration given to r 1.15A(3)(d)(iv) of the Regulations, in particular the relevant referral to the duration of six weeks after filing and 6 months in total. No jurisdictional error as alleged in ground 8 is made out. (Emphasis added.) 58 On a fair reading of the Tribunal's reasons, much of the material it examined was capable of going to this topic. Clearly the Tribunal took into account the appellant's evidence in relation to the rapid developments in the relationship, the text messaging between the appellant and the sponsor. It reached findings as to duration (at [58]-[59]): 58. The [appellant] and the sponsor appear to have lived together under the same roof for a period of about six months but during that period they separated on a number of occasions as documented by their text messages and as conceded by the [appellant] at the hearing. 59. From the time of application of the visa until their final separation in mid-September 2015, the parties' relationship was of 6 weeks duration. 59 A fair reading of [42] and [43] requires recognition of the word 'express' in relation to the findings. For the reasons given by the Federal Circuit Court (at [42] and [43]) it would, in my respectful view, be an unfair reading of the Tribunal's reasons to conclude that findings on this topic were not reached at least inferentially. This ground cannot succeed.

[18]

Consideration 61 The Federal Circuit Court dismissed this ground (at [44]-[45]). His Honour said: 44. In relation to ground 9, Mr Blades submitted that there had been a failure to take into account and make a finding in relation to the companionship that the persons draw from each other under r 1.15A(3)(d)(iii) of the Regulations. The Authority's reasons are not to be read with a keen eye for error. The reference in the course of the Authority's reasons to emotional support and duration of six weeks after filing the application and 6 months in total clearly included the commitment to each other in the context of the relationship and the requirements of subparagraph (d) of r 1.15A(3) of the Regulations. 45. The reference to duration of the relationship being in whole of six months and there being only six weeks duration after the filing of the application and the friction in the relationship identified by the Tribunal are all consistent with the Tribunal taking into account the companionship and emotional support. No jurisdictional error as alleged in ground 9 is made out. 62 The appellant's complaints view the reasoning of the Tribunal too critically. As already noted in these reasons, it is not essential that findings of the Tribunal need to be express as distinct from implied. It is true that companionship and emotional support might be regarded as different but related concepts. There could be companionship without emotional support. It may not be very good companionship. It may not be the sort of emotional support one would often hope for in a marriage. Nonetheless, it may be companionship. The appellant points to nothing in the evidence, examined at some detail by the Tribunal, which is only capable of going to one consideration and not the other. On the evidence in this case, there was evidence to support both companionship and emotional support, but not sufficient to persuade the Tribunal to the point of view advanced for the appellant. This ground must fail.

Campos v Minister for Immigration and Border Protection

At a glance

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Judgment (21 paragraphs)

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