Cao v Minister for Immigration and Citizenship [2025] FCA 996

1. By a Notice of Appeal filed on 8 May 2024, the appellant appeals against the whole of the judgment and orders of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) delivered on 10 April 2024: Cao v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 309 (PJ). The primary judge dismissed an application for judicial review of a decision of the then Administrative Appeals Tribunal which had affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to grant the appellant a Partner (Residence) (Class BS) visa (partner visa).
2. For the reasons which follow, the appeal must be allowed.

1. The appellant is a citizen of Vietnam who arrived in Australia on or about 12 October 2010 on a student visa. Between February 2011 and June 2012, the appellant met an Australian citizen. On or about 25 October 2012, the appellant and his partner registered their relationship under the Relationships Act 2011 (Qld).
2. On 12 March 2014, the appellant made an application for a partner visa based upon his alleged de facto relationship with the citizen. It is not in dispute that in or about October 2016, the Department received information from a third party to the effect that the relationship had ceased. On 20 July 2018, a delegate of the Minister invited the appellant to provide comment about the information received. The appellant on 16 August 2018 provided a statement and other evidence which disputed the effect of that information.
3. On 20 September 2018, the delegate refused to grant to the appellant the partner visa because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor within the meaning of ss 5CB and 5F of the Migration Act 1958 (Cth). The appellant applied to the Tribunal for review of that decision. The Tribunal subsequently sent two invitations pursuant to s 359(2) of the Migration Act to the appellant to attend a hearing before it. The appellant did not respond to either invitation. Accordingly, pursuant to ss 360 and 363A of the Migration Act, the appellant lost his entitlement to a hearing, and the Tribunal proceeded to determine the review application on the papers.
4. On 24 April 2023, the Tribunal affirmed the decision of the delegate. The appellant applied to the FCFCOA for judicial review of the Tribunal's decision.

1. Before the primary judge, the appellant relied upon an amended judicial review application filed on 6 March 2024. The two grounds advanced by that application are set out at PJ[13].
2. As to the first ground, the appellant contended that the Tribunal had failed to make relevant findings concerning matters it was required to consider pursuant to cl 1.09A(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
3. The primary judge identified (PJ[18]) that the requirement under cl 1.09A was that the Minister must consider all of the circumstances of the alleged spousal or de facto relationship. In that regard, his Honour considered the decisions of the Full Court of the Federal Court in He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 at [76], [79], [82] and [86], and in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [19]- [21], which make clear that the Tribunal, when conducting its de novo review of a decision of this sort, ought not to be unduly regulated or fettered in the manner in which it assesses and considers all of the evidence before it, or how much weight it gives to such evidence, prior to arriving at its decision.
4. His Honour found (PJ[20]) that the Tribunal had expressly set out (at [13]-[14] of its reasons) how it had considered all of the matters required to be considered under cl 1.09A(3) of the Regulations and, after an analysis of the reasons, concluded at PJ[26] that "the Tribunal actively engaged with the claims and fulsome submissions made on behalf of the applicant, and that it did not err in making the findings which it did. The Tribunal addressed all of the issues which it was required to address and it did so having regard to all of the material before it". This was sufficient to dispose of the first ground.
5. As to the second ground, the appellant contended that the Tribunal had made adverse findings against him because it had erroneously recorded that his partner was not intended to be called as a witness.
6. In view of the cancellation of the Tribunal hearing due to the appellant's unresponsiveness, and the Tribunal's specific references to aspects of the partner's written evidence in its reasons, his Honour rejected (PJ[27]-[29]) any argument that the Tribunal did not have regard to the partner's evidence or that it assessed the appellant's claims as being less tenable as a result of its erroneous finding that the partner had not been nominated as a witness to be called to give oral evidence on behalf of the appellant. The primary judge was satisfied that the Tribunal had considered all of the evidence and submissions before it and that it did not err in doing so.
7. The primary judge found that the appellant had failed to establish jurisdictional error under either ground. Accordingly, his Honour dismissed the judicial review application.

1. By his Notice of Appeal dated 8 May 2024, the appellant contends that the primary judge erred in failing to uphold the two grounds advanced by the amended application below.

1. In respect of ground 1, the appellant submits that the primary judge erred by failing to find that the Tribunal made no finding upon the two considerations required under cl 1.09A(3)(c)(i) and (ii) of the Regulations, respectively, being:

(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship.

1. The appellant primarily impugns the Tribunal's reasons with respect to the "social aspects of the relationship", which are found at [29] and [30] of its reasons in the following terms:

Social aspects of the relationship - including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

1. There was no hearing in the matter and therefore no witnesses appeared before the Tribunal in support of the social aspects of the relationship. The Tribunal again, notes Mr Nolan was not nominated as a witness in the acceptance of the hearing invitation. However the parties have provided details of the social aspects of their case in their respective declarations. Mr Nolan claims that the two regularly spend time, mostly lunch, with mutual friends, including some who have provided Form 888 support statements. The relationship information is somewhat vaguely worded, but essentially, claims that the parties also visit Mr Nolan's elderly "second-mother", and he has become a friend of the family. He states the parties have been discreet about their relationship with members of the family in Vietnam who may hold biases against homosexuality.
2. The applicant provided timestamped photos of the parties in various social settings since 2018, usually positioned close to one another and shown sharing their time with friends. The Tribunal affords the social aspects some weight in favour of the social aspects of the relationship, however having not had an opportunity to question either the applicants or their supporters at a hearing, the weight afforded is commensurately limited.

1. The primary judge considered those paragraphs of the Tribunal's reasons at PJ[23]:

At [29] - [30] of its reasons, the Tribunal examined the social aspects of the relationship. The Tribunal noted that the applicant had provided details of the social aspects of the relationship evidenced by a number of declarations. It was noted that there was evidence before the Tribunal from Mr Nolan that he and the applicant regularly spent time with mutual friends, including some who had provided support statements. Though it was found that the relationship information was "vaguely worded", the Tribunal noted that the claims were to the effect that the parties also visited Mr Nolan's elderly "second mother", and that he had become a friend of the family. The Tribunal also noted photographs at social occasions showing them sharing time together. The Tribunal properly noted that though it afforded the social aspect evidence some weight in favour of there being a relationship, such weight was diminished by the fact that the applicant and others had failed to appear at the hearing to give evidence and present arguments. That absence of any face-to-face interaction was as a result of the applicant's own inaction in failing to respond to the hearing invitations and requests given to him by the Tribunal. It was a legitimate and obvious observation on the part of the Tribunal.

1. While the appellant accepts that it is trite law from cases such as He and Zhang that the Tribunal was not required to refer to every piece of evidence in considering the matters prescribed under cl 1.09A, he argues that these paragraphs of the Tribunal's reasons do not indicate any evaluation of the evidence which was relevant to those questions, do not make any findings with respect to those questions, and do not contain any discussion of those questions. It follows, the appellant submits, that it should be inferred that the Tribunal did not in fact make findings with respect to the two matters required to be considered under cl 1.09A(3)(c)(i) and (ii) of the Regulations as part of its mental process in reaching its decision, and thereby committed jurisdictional error in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321.
2. The exhortation in He, at [76], to make a finding on each of the prescribed matters numbered with Roman numerals was tempered by the Full Court's observation, at [79], that if the written statement of the Tribunal's reasons does not set out a finding concerning any of those prescribed matters, "it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision" (emphasis added). Although the Tribunal did not articulate a specific finding in the terms of cl 1.09A(3)(c)(i) and (ii) of the Regulations, it is clear from the Tribunal's references to the appellant's declaration and that of his alleged partner, and to the statements provided by mutual friends, that these are the precise indicia being considered by the Tribunal at this point in the reasons and that the Tribunal has made a finding in that respect by affording the social aspects "some weight".
3. It is also trite that the Tribunal's reasons must be read as a whole. To that end, while not contained under the "social aspects" heading, the Tribunal's reasons later expressly had regard to: "evidence provided in written form from various supporters of their claims to a genuine relationship" (at [31]); evidence from a friend of the appellant that he "has no reason to doubt their relationship is genuine" (at [32]); and evidence from an acquaintance of the appellant who he met through his partner who "claims never to have seen signs of anything other than a true relationship" (at [33]). The primary judge noted at PJ[24] that the Tribunal had had regard to the views of those people that the appellant and his partner "were in a genuine relationship and that they had a commitment to each other".
4. On a fair reading of the reasons, it is clear that the Tribunal considered the two matters required under cl 1.09A(3)(c)(i) and (ii) of the Regulations. The first consideration, namely whether the persons represent themselves to other people as being in a de facto relationship, is revealed in [29] and [30] of the reasons. The second consideration, namely the opinion of the persons' friends and acquaintances about the nature of the relationship, is revealed in [29], the second last sentence of [32], and the last sentence of [33] of the reasons. It therefore is plainly not the case that the Tribunal did not discuss or evaluate evidence which was relevant to those questions, nor did it fail to make any findings with respect to those questions. The primary judge did not err in his finding at PJ[26] that the Tribunal addressed all of the issues which it was required to and did so having regard to all of the material which was before it.
5. Any complaint by the appellant as to the precise manner and outcome of the examination undertaken by the Tribunal, both below and now on the appeal, invited an impermissible merits review. Ground 1 cannot succeed.

1. In respect of ground 2, the appellant submits that the primary judge erred in failing to find that the Tribunal took into account an irrelevant consideration, namely that his partner had not been nominated as a witness to be called to give oral evidence. It is not in dispute that the partner had, in fact, been nominated as a witness, albeit after the appellant was notified of the cancellation of the hearing because of his failure to respond to the Tribunal's invitations. The appellant nominated two witnesses on the relevant "Response to hearing invitation" form - the father of his alleged partner's Godson and another man said to be one of his partner's best friends. As the form invited him to do if he wished to nominate more than two witnesses, the appellant attached the details of his partner on a separate page identifying him as "Witness 3".
2. The appellant was legally represented before the Tribunal and filed submissions dated 19 April 2023, one week after the appellant was informed that his oral hearing had been cancelled. Those submissions do not place any particular emphasis on the written statements of the intended witnesses.
3. The impugned passage of the primary judge's decision is at PJ[29], where his Honour said:

The Court finds that there is no reasonable basis for the submission that the Tribunal somehow assessed the applicant's claims as being less tenable because of its erroneous finding that Mr Nolan had not been nominated as a witness to be called on behalf of the applicant. The Tribunal at all times accepted that it was both the applicant's claim, as well as the claim of Mr Nolan, that they were in a complying relationship. The Tribunal assessed the evidence before it after considering and weighing up all of the claims and submissions. It did not err in doing so. There is no merit to Ground 2 of the Amended Application for Review.

1. The appellant argues that this conclusion is at odds with the "repeated references" to the partner's supposed absence from the witness list in the course of the Tribunal's reasons as follows (with mark-up reflecting the emphasis added by the appellant):

[18] The Tribunal did not have the benefit of seeking to personally question the parties' about the finer details of their financial circumstances over time. The Tribunal notes, however that Mr Nolan was not nominated as a witness for the scheduled hearing, which tends to indicate he did not plan to give oral evidence. Given these circumstances, the Tribunal has carefully considered the relevant documentary submissions about the parties' finances, including those on the Department file, and concludes as follows. ...

[29] There was no hearing in the matter and therefore no witnesses appeared before the Tribunal in support of the social aspects of the relationship. The Tribunal again, notes Mr Nolan was not nominated as a witness in the acceptance of the hearing invitation. ...

[31] It is clearly more difficult to assess whether a relationship is a genuine spousal or de facto relationship on the basis of documentary claims made by the parties concerned Even evidence provided in written form from various supporters of their claims to a genuine relationship are harder to test without a hearing. It is noted that Mr Nolan was not listed as a witness when the hearing invitation was accepted, however the declarants were scheduled to appear but did not do so because the hearing was cancelled. ...

[38] Without the benefit of hearing directly from each of the parties, separately and together, the Tribunal is not satisfied that the evidence, as summarised in the materials referred to above, demonstrates a degree of companionship and emotional support consistent with a high level commitment to the relationship. Further, it does not confirm that the parties they see the relationship as long-term. The absence of the sponsor from the witness list for the planned hearing does not help; and this is not addressed in submissions.

1. These references, the appellant contends, indicate that the perceived absence of Mr Nolan "coloured the view taken by the Tribunal to the appellant's case". The Minister submits, to the contrary, that on each occasion the Tribunal was merely explaining the difficulties faced in assessing the credibility of the documentary evidence which was before it in the absence of an oral hearing. That might be so, but it is difficult to give the passages such a construction when, on each occasion, the Tribunal specifically refers to Mr Nolan either not being nominated as a witness or being absent from the witness list. Clearly the Tribunal considered this to be relevant to its decision.
2. There was in fact no legal requirement for the appellant to make Mr Nolan available to give oral evidence at the hearing. Had the hearing taken place, one of two things would have occurred: either Mr Nolan would have been there to give oral evidence; or he would not, in which case the Tribunal would have been left to draw whatever inference might have been open to it. Given the Tribunal proceeded in the absence of an oral hearing, the operation of s 360(3) of the Migration Act meant that the appellant was precluded from calling any witnesses to give oral evidence, and the Tribunal was left with the written materials that had been submitted by the appellant. The Tribunal was mistaken as to the content of the Response to hearing invitation, in which the appellant had nominated Mr Nolan as one of the three witnesses he intended to call. This was an error of fact that led to the Tribunal taking into account an irrelevant consideration. That was a jurisdictional error.
3. A similar, although not identical, error was held to be jurisdictional in Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17; 423 ALR 1. In cancelling the first appellant's protection visa under s 116(1AA) of the Migration Act, the delegate in that case gave weight to the fact that the first appellant had failed to respond to the Notice of Intention to Consider Cancellation, in circumstances where there was no obligation on a visa holder to do so. The Minister conceded that the delegate was not entitled to give that fact any weight, and therefore fell into jurisdictional error. The High Court held the concession to be correct (at [12]).
4. Ground 2 must be upheld.

1. It follows that the appeal must be allowed. The orders of the Federal Circuit and Family Court dated 10 April 2024 must be set aside and the decision of the Tribunal dated 24 April 2023 must be quashed. The matter will be remitted to the Administrative Review Tribunal for determination according to law. The Minister must pay the appellant's costs of both the judicial review application before the primary judge and this appeal.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.