Ground 1
101 The appellant frames the issue raised by this ground as, "can a tribunal find no spousal relationship exists on the basis of concerns, assertions and discussion without properly making specific findings on material questions of fact and without anchoring all findings to the date of decision?" [emphasis added].
102 The appellant places emphasis on a statement of the Full Court of this Court in Re Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Unreported, Federal Court of Australia, Northrop, Wilcox and French JJ, 8 May 1990, at p 9) ("Dhillon") in these terms:
It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did. Only if this is done it is possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding. In making the above observations we bear in mind that there may be cases, for example risk assessment in the case of a suspected terrorist, where the relevant finding is that a risk exists. If that fact be found it may be proper to be influenced by it. But, of course, motions of risk assessment have nothing to do with this case.
[emphasis in submissions of the appellant]
103 The appellant contends that the Tribunal's role is to "anchor" all the evidence in the review, to the date of 2 February 2017 (the date of the Tribunal's decision) and, in accordance with the Full Court's decision in He v MIBP at [76], the Tribunal is "required … to consider each of the matters in … Reg 1.15A(3) and make findings on those matters" [emphasis added].
104 With respect to the "financial aspects" of the appellant's relationship, the appellant submitted that the Tribunal made "one" reference to those matters (that is, at [24]). The appellant contends that this "one" reference does not amount to a "finding" and is enough, by itself, for the appeal to succeed. The appellant focuses upon the final two sentences of [24] of the Tribunal's decision as the particular reference, which is in these terms: "In any event, the tribunal accepts there is some evidence of sharing/pooling financial resources. However, the tribunal considers the financial aspects are limited". I will return to that matter later in these reasons.
105 With respect to the "nature of the household", the appellant submits that the Tribunal's conclusion at [32] of its reasons does not direct itself to the correct statutory enquiry. Paragraph [32] of the Tribunal's decision is in these terms: "The tribunal accepts the couple share[d] a household for short periods from time to time, but it does not accept the couple have shared a household on a permanent or continuing basis". The appellant says that the correct test is to be found in ss 5F(1) and (2) of the Act which provide that a person is the spouse of another if, under subsection (2), the two persons are in a married relationship and s 5F(2) provides that persons are in a married relationship if (assuming integers (a), (b) and (c) are satisfied), they "live together" or they "do not live separately and apart on a permanent basis": s 5F(2)(d). The appellant says that the Tribunal did not make findings about whether the sponsor and the appellant "lived together" or whether they do or do not "live separately and apart on a permanent basis" (but especially whether the negative proposition is the position). The appellant also says that the Tribunal did not make an assessment of the living arrangements of the appellant and the sponsor as at the time of the decision, 2 February 2017. The appellant contends that this is an appealable error and the appeal should succeed on this point alone.
106 The appellant submits that, with respect to "social aspects of the relationship", the Tribunal did not making a finding at [38] of its reasons as it merely "discussed" matters from [33]-[37] and did not engage with evidence given by the sponsor and the appellant at the hearing.
107 As to the "nature of the person's commitment to each other", the appellant submits that the Tribunal merely recited evidence and did not make a finding on the necessary matters in Reg 1.15A(3)(d)(iii). The appellant, as a matter of principle, places emphasis on the observations of the Full Court in BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 ("BZD17"), in which the Full Court said this at [36]:
Similarly, in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]-[49], the Full Court referred to the need for there to be "an active intellectual engagement" with the consideration in question and explained that a party should not be "left to guess" what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration and Citizenship, the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant's submission in that it had merely recorded that a "submission" was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J). Similarly, "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it": SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also e.g. SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34]-[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see e.g. DAO16 at [45] (the Court).
[bold emphasis added]
108 The appellant submits that the primary judge, by finding at [68] that the Tribunal had made inferential findings on the nature of the person's commitment to each other which satisfied Reg 1.15A(3)(d)(i), (ii) and (iv), fell into error.
109 The respondent contends that the primary judge correctly identified the Tribunal's task with respect to Reg 1.15A(3) in the context of He v MIBP. In particular, the respondent asserts these propositions:
(a) The appellant takes an unduly narrow approach to what constitutes a "finding". In the respondent's submission, it is not necessary for the Tribunal's reasons to be structured in a manner that "formulaically" addresses each of the relevant matters in turn. Rather, the "impressionistic and evaluative" nature of the Tribunal's task must be taken into account when "drawing implications from its reasons" and the reasons must not be construed minutely and finely with an eye to the perception of error.
(b) Importantly, the Tribunal is required to make findings about the "matters" set out in Reg 1.15A(3). It is not required to "refer to or make findings upon every piece of evidence". In that regard, the respondent places emphasis upon [83] of the judgment in He v MIBP, where (referring to 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]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9]-[10] and [77]) ("Yusuf"), the Full Court said that the Tribunal was not required to refer to or make findings upon every piece of evidence but rather was required to make findings upon the matters prescribed in Reg 1.15A(3).
(c) Although the analysis of the "circumstances of the relationship" and the "matters" in Reg 1.15A(3) are to be considered at the date of the Tribunal's decision, this does not mean that the history of the relationship is irrelevant to the Tribunal's consideration of those circumstances and matters.
110 With respect to the appellant's reliance on Dhillon, the respondent submits that the Tribunal's findings were not based on "doubts" or "conflicting evidence". Rather, the evidence put forward by the appellant and his sponsor was not sufficient to satisfy the Tribunal that they were in a genuine and ongoing relationship; that they shared a mutual commitment to each other to a shared life to the exclusion of all others; and that they lived together, or lived apart but not on a permanent basis.
111 It is important to remember that an appeal by way of re-hearing requires the appellate court to decide for itself whether the decision of the primary judge is correct or incorrect which requires the Full Court or a single judge exercising the Court's appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the Tribunal took a course (as contended by the appellant) that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [20] and [30]. Accordingly, it will be necessary to consider aspects of the Tribunal's decision in a little further detail.
112 Section 5F which sets out, for the purposes of the Act, the factors which determine whether a person is the spouse of another, is set out at [21] of these reasons. The visa the appellant applied for (a Partner (Residence) (Class BS) (subclass 801) visa) is subject to the requirements of cl 801.221 of Schedule 2 to the Regulations, and the subclauses of cl 801.221 are set out at [18] of these reasons.
113 The central point of relevance for present purposes is that the appellant only meets the requirements of the subclauses (and thus, the clause) if the appellant is the spouse of the sponsoring partner and the term "spouse" engages s 5F and all of the integers at s 5F(a), (b), (c) and (d). Section 5F(3) provides that the Regulations may make provision in relation to the "determination" of whether one or more of those four integers "exist" in relation to the two persons said to be in a spousal relationship, and as to the visa sought by the appellant, the Regulations provide that the Minister "must consider" "all of the circumstances of the relationship": Reg 1.15A(2). Those circumstances include the "matters" set out in subregulation (3). The statutory obligation cast upon the Minister (or his or her delegate) is to "consider" all of the circumstances and to "consider" the prescribed "matters" at Reg 1.15A(3): Reg 1.15A(2). The scope of the statutory obligation to "consider" those two things is an obligation to consider the circumstances and matters put to the decision-maker by or on behalf of one or other or both of the two relevant persons. The decision-maker must decide, having considered all of the circumstances and each of the matters, on the material put to him or her (including documents, statements, declarations, oral evidence) whether the applicant for the visa is the spouse of the sponsoring partner. In considering the circumstances and matters, the decision-maker will be called upon to accept or reject evidence or decide whether evidence is insufficient or non-existent on a particular circumstance or matter. In examining the evidence put to the decision-maker and deciding whether to accept or reject evidence, or form a view that evidence is insufficient or non-existent on a particular circumstance or matter, the decision-maker is seeking to establish whether he or she can reach a state of satisfaction about whether the applicant satisfies the requirements of the clause upon which the visa is conditioned, and the provisions of the Act. As to the scope or content of the obligation to "consider" all of the circumstances of the relationship including the matters at Reg 1.15A(3), the Full Court in He v MIBP said this 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 particular 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.
114 Regulation 1.15A(3)(a) (the financial aspects of the relationship) includes any joint ownership of real estate or other major assets; any joint liabilities; the extent of pooling of financial resources; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses: Reg 1.15A(3)(a)(i) to (v).
115 The appellant relies upon his oral evidence at T, p 11, ln 25 to T, p 14, ln 10 of the Tribunal hearing on 30 January 2017. The exchanges across those pages include the following exchanges:
Member: Okay. And your salary, does that get paid into the joint account? I need you to interpret and not have a conversation with him, please.
Interpreter: Sorry, I just had to clarify.
Member: Well, then, you need to say that's what you're doing, and ask me to do that.
Interpreter: Okay. Well, he say in the same bank they've got two accounts. One is the joint one, and his one. His salary goes into his one.
Member: All right. So your salary goes to your own account.
Interpreter: Not the joint one.
Member: Okay.
Interpreter: Well, the money goes to his account and they have a joint account as well, and he's saying that his wife has got all the access and she can take money from either of the accounts.
Member: Right. So and your wife, what money - what does she do for money?
Interpreter: She is unemployed but she is studying at the moment, and because she's not feeling well, she can't work.
Member: So does she receive any government benefits?
Interpreter: She used to get support from government, but he's saying not any more. He's saying she used to get $400.
Member: So she used to get $400 a week. What kind of - what was that for? Was that unemployment? Was it for study? Was it Disability Support?
Interpreter: He isn't sure. He thinks it was for her health issue that she couldn't work.
Member: When she was getting that money, was that going into her account or the joint account? Where did that money go?
Interpreter: It went directly into her account, but she used to pay the groceries shopping from that money.
Member: Sorry, I missed the first part you said, interpreter.
Interpreter: The money from the government support, went into her account.
Member: Okay.
Interpreter: And he was saying she used to pay groceries. That's what she used the money for. Marek used to pay rent, electricity and internet, and she used to pay groceries.
Member: And how much is the rent where you are now?
Witness: $380.
Member: And how much do you pay?
Witness: I pay $380, but every month pay son, and pay house and electricity, because son is no ---
Interpreter: Her son is getting paid monthly, not weekly.
Member: Okay. So the rent is $380 a week. You pay the rent. Does the son pay anything?
Interpreter: Marek is paying three weeks, and the fourth weeks, the son is paying rent.
Member: All right. And what about your wife?
Interpreter: Yes, it's a joint account, so it's paid from. He earns the money and he pays the rent, and from the marriage account - so he pays all this from the joint account.
Member: So you pay it from the joint account or you pay it from your own account?
Interpreter: Sorry, I need to clarify.
Member: No, I want to hear what he said first, please.
Interpreter: He's saying that from his account, he transfers the money to the joint account. Okay. So the wife transfer money from his account, and then they pay rent. He is happy to show you the bank statements.
Member: Sorry, say that account?
Interpreter: He's happy to show you the bank statements and rent payments.
Member: Where are they? Where are they?
Interpreter: He doesn't have it on him at the moment, but he said it can be provided later.
Member: Well, this is your opportunity to provide all your evidence.
Interpreter: I wasn't aware it was this time. He didn't know he could bring the documents in and all the paperwork.
Member: So the only bank statement I see, doesn't actually - that's only a - it's a 2014 bank statement. It doesn't have anyone's name on it, so I don't know whose bank statement it is.
Interpreter: He's saying it both - his bank account and the joint account.
Member: Well, I can't tell that from this.
Interpreter: He's got two accounts at the same bank. It's the same bank. After the wedding they open another account, it's a joint account, and they both (indistinct) from the same account. Which one for the (indistinct) both bank accounts, and we just transfer money from one to the other account, and use it.
Member: Right. So you each have your own bank account, and a joint account?
Interpreter: Yes. We have three. His wife has one which she had before they met, and then they opened a joint account. He's saying that there's three accounts. One she had previously with her bank, and then they opened joint accounts at the same bank when Marek was (indistinct).
116 The appellant says that these exchanges demonstrate that there was, at the date of the Tribunal's decision, evidence of claims of an inter-relationship between the Centrelink payments of the sponsor and the appellant's earnings, and that their accounts were related to enable transfers of money to pay joint expenses. The appellant says that the Tribunal's acceptance that there is "some evidence of sharing/pooling financial resources" but that the "tribunal considers the financial aspects are limited", is not a "finding" as to "the financial aspects of the relationship" for the purposes of Reg 1.15A(3)(a)(i) to (v). The appellant particularly refers to the oral evidence marked in italics quoted at [115] as evidence of a joint account and also separate accounts with the sponsor having access to both.
117 Paragraph [24] of the Tribunal's reasons concludes with two sentences which contain the statement and conclusionary observation that the appellant criticises as described earlier. Paragraph [24] needs to be taken into account in its entirety. It is set out at [35] of these reasons. It need not be set out again here.
118 I am satisfied that the Tribunal has considered all of the matters at Reg 1.15A(3)(a)(i) to (v) and that the last two sentences, fairly read, are findings on those matters having regard to para 24 and the reasons overall. The Tribunal did not merely refer to conflicting evidence. It discussed the available evidence before it and, by its exposed reasons, considered and evaluated the evidence of the appellant and the sponsor. It reached a conclusion on the extent to which the financial aspects of the relationship of the appellant and the sponsor suggested any joint ownership of assets; any joint liabilities; the extent of any pooling of financial resource, especially in relation to major financial commitments (such as rent); whether the evidence suggested any legal obligations owed one to the other; and the extent to which household expenses were shared or not. The Tribunal's references to the "limited" nature of evidence of the financial aspects of the appellant's relationship with the sponsor were sufficient to record the Tribunal's "mental process" in reaching its decision as described by the Full Court in He v MIBP at [79]. I will return to the question of drawing inferences, in light of He v MIBP, later in these reasons.
119 The second aspect of the Tribunal's reasoning impugned by the appellant concerns Reg 1.15A(3)(b) (the nature of the household including the care of children; living arrangements; and any sharing of the responsibility for housework). The Tribunal addresses those matters at [25]-[38] of its reasons: see [37] to [46] of these reasons as to those matters.
120 Before the Tribunal, the appellant essentially asserted that he and the sponsor lived apart for a period of six to eight months prior to the hearing on 30 January 2017 during which time the appellant worked and lived on the Gold Coast so as to be more proximate to his place of work. Before that, the appellant and sponsor had lived at Kallangur, then Caboolture and then Eagleby together (the latter move was so the appellant could be closer to work) for about a year and a half. When asked about the couple's separations, the sponsor said that "it's because of me. It's because of my illness. Because, like I said, I don't want to be - when I found out, I went a bit potty. I don't want to be around - I just don't want to be around people".
121 When asked how long they have been living together "this time", the sponsor said, "Not a great time but Marek was working at the Gold Coast and I was living at my daughter's place, and then we moved into - he decided that he was going to get a job and was offered a job here, so he took the job here, so we moved into this place at Kallangur".
122 It emerged from the Member's questioning, that the appellant and sponsor had been "back" together for four to five months and that, when separated, they "always spoke."
123 The Tribunal considered this material and "[did] not accept the applicant's claims that they [the sponsor and the appellant] have been living together all the time, other than six to eight months when he worked on the Gold Coast". The Tribunal then at [30] noted the withdrawal of the sponsor's support for the appellant and found at [31] that "there was limited documentary evidence of the couple sharing a household during their claimed relationship". The Tribunal noted a lack of a tenancy agreement, joint bills and did not accept the appellant's explanation that he did not feel competent enough with English to converse on the phone with providers. The Tribunal considered that this was not a sufficient explanation of a lack of bills in joint names.
124 A central contention of the sponsor and the appellant was that, despite being apart, they were not living apart on a permanent basis. The Tribunal considered that the "[appellant] was not telling the truth about his living arrangements with the sponsor". In forming this view, the Tribunal considered the appellant's evidence that he returned home each weekend from the Gold Coast and rejected that claim on the basis that it was inconsistent with the sponsor's daughter's statement in which she said that the appellant visited her mother on an "occasional basis".
125 Ultimately the Tribunal accepted at [32] that the couple shared a household for "short periods" but did not accept that the appellant and sponsor shared a household on a permanent or continuing basis. Again, I am satisfied that when the Tribunal's exposed reasons are read fairly as a whole, the Tribunal has made findings on the integers of Reg 1.15A(3)(b) with respect to the nature of the household at each of [26], [27], [28], [29], [30], [31], [32], [33], [34], [35], [37] and [38]. The Tribunal considered the central contentions made by the appellant that he lived on the Gold Coast and returned to the sponsor on a weekly basis and that the couple were, fundamentally, living together on a permanent basis. These were factual matters that the Tribunal considered having regard to the oral evidence of the couple and the material in the appeal record. The appellant contends that after having considered the matters relating to the bank statements, when addressing the financial aspects of the relationship, the Tribunal did not go on to make a finding about the "living arrangements" of the appellant. That is not a fair reading of the Tribunal's reasons. The Tribunal considered the issue of the bank accounts and bank statements as a factor in the Tribunal's "mental process" of deciding whether the couple did, or did not, share a household on a permanent or continuing basis. However, there can be no doubt that the Tribunal considered and reached conclusions (findings) about the household factors and whether the appellant and the sponsor were, or were not, living together or whether, on the evidence, they "do not live separately and apart on a permanent basis". All of the observations of the Tribunal at [25] to [38] of the Tribunal's reasons need to be read together to understand the line of reasoning and the "conclusions" reached by the Tribunal about those matters.
126 As to Reg 1.15A(3)(c) (the nature of the persons' commitment to each other), the appellant says, again, that no "findings" were made by the Tribunal and that the Tribunal's concern that evidence was "limited" was wrong as there was "ample evidence" to make a finding about these matters at subpara (c)(i) to (iii). The appellant emphasises pages 22 and 26 of the transcript of evidence before the Tribunal. The relevant extracts so far as the sponsor is concerned are said to be these:
Ms Hartman: He makes me laugh.
Member: What do you like to do together?
Ms Hartman: We go shopping together. We do - he enjoys his antiques. I've got a lot of antiques and I love them, but he comes with me. We pick them up together. We go to the beach. We spend a fair bit of time at my daughter's place up at Beerburrum, and with her partner. We spend a lot of time with them. We do things with my 30 year old son that's with us, and sometimes if I'm not feeling that good, him and Jeremy will go and - go away, like New Year's at my daughter's place, they went to, and I went up and picked them up. And barbeques up there. Yes.
Member: You didn't spend New Year's with him?
Ms Hartman: No, I was not feeling that well.
Member: But you went up to Beerburrum and picked them up?
Ms Hartman: I went up to Beerburrum and picked them up at 1 o'clock in the morning, but I didn't physically go to the party because I couldn't sit there for all those hours while everyone was drinking, because I've got cirrhosis of the liver, so I don't like being around people who drink.
…
Member: What do you like to do together?
Ms Hartman: We like watching movies. We like going up to my daughter's place, she always has barbies on, and different parties. And he goes up there at times. He will go up to paint her house - her and her partner's house. He was up there with her partner, if there's something else to do - they're building a big deck at the moment.
127 The appellant says that this evidence is evidence of and attests to the elements of the social interactions between the appellant and the sponsor.
128 The Tribunal, however, was concerned there was "limited" evidence of the social aspects of the relationship. The Tribunal addressed the four statutory declarations provided by friends of the appellant and sponsor. The Tribunal attributed little weight to all of them because, in the case of the first three, they were made three years from the date of the hearing and, in the case of Mr Jakubec's statement in 2017, it did not refer to the couple's separation.
129 The Tribunal accepted that the appellant and sponsor socialised with the sponsor's children but noted that the sponsor's evidence was also that they do not otherwise socialise due to her ill health. Whilst the appellant socialises with his friends, the sponsor does not.
130 After the hearing, the appellant provided photographs of a Christmas and New Year's Eve Party. The Tribunal considered the photographs but noted that many did not show the appellant and sponsor together. The Tribunal attributed "some weight" to the photographs but did not consider that they showed frequent socialising. With respect to the attendance of the appellant and the sponsor's son at a New Year's Eve party, the Tribunal considered, as earlier noted, that it was "odd" that the sponsor and appellant would not spend New Year's Eve together in circumstances where the sponsor was well enough to collect the appellant and her son at 1.00am after the party, notwithstanding the sponsor's evidence about her reasons for not attending the party.
131 At [37], the Tribunal also considered that the appellant and sponsor had given contradictory evidence concerning the sponsor's relationship with the appellant's mother and sister. The Tribunal noted that the appellant's evidence was that the sponsor had not spoken to the appellant's mother or siblings on account of a language barrier and that the appellant's mother did not have internet access. The Tribunal noted the sponsor's evidence that she had spoken to the appellant's mother on Skype and was Facebook friends with the appellant's sister.
132 Although the inference drawn by the Tribunal that there is something "odd" about the sponsor not attending the New Year's Eve party is not open simply on the foundation fact that she did not attend yet was able and willing to collect the appellant and the sponsor's son from the party at 1.00am (especially in the face of the explanation by the sponsor), ultimately, the Tribunal found that there is "limited" evidence of social aspects of the relationship. I accept that this is a finding on the integers of Reg 1.15A(3)(c). In its reasoning leading to its conclusion, the Tribunal is not merely noting "conflicting evidence" or "doubts" in the sense described in Dhillon but is expressing a conclusion flowing from its examination of the evidence which informs the decision-maker's ultimate decision about whether the appellant and sponsor are in a "married relationship" for purposes of s 5F of the Act. The Tribunal's observation about the oddity of the sponsor not attending the party was not determinative of the Tribunal's conclusion.
133 The final impugned aspect of the Tribunal's reasons is Reg 1.15A(3)(d) (the nature of the persons' commitment to each other including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as long-term).
134 The Tribunal considered these aspects from [39]-[54] of its reasons. However, the appellant contends that "few, if any", "findings" were made. Broadly, the Tribunal considered the evidence that the sponsor and the appellant have separated "a number of times" and that the sponsor had withdrawn her support of the appellant, twice.
135 At [41], the Tribunal did not accept that the sponsor and appellant are committed to each other or that they share a mutual commitment to a shared life or that their relationship is "genuine and continuing" having regard to the "documentary evidence and the evidence at hearing".
136 The Tribunal then went on to consider the sponsor's statement that she draws emotional support from her daughter. The Tribunal considered the sponsor's daughter's statement of March 2016 in which she considers the appellant to be a good husband and stepdad "who visits". The daughter believed that the couple separated on account of her mother's ill health and that she believed the appellant and sponsor could get back together.
137 The Tribunal then considered the circumstance that the appellant "knew little" about the sponsor's health problems. As to that observation, the appellant's evidence was that the sponsor has a heart condition; he thinks she has a liver issue; and he is "not 100 per cent sure she's got cancer". The appellant's evidence was that he was unsure why the sponsor had an infusion and that the sponsor takes medication for "heart issues and sort of urine issues and that she goes to the doctor very often". The appellant's evidence was that if the sponsor goes to the doctor, she goes with her daughter.
138 The Tribunal referred to the appellant's outpatient appointment letter that referred to a number of medical issues (cirrhosis of the liver, Graves' disease, OCD, clinical depression and suspected lymphoma): [44]. The Tribunal was not persuaded that the appellant's lack of knowledge of the sponsor's medical conditions was attributable to his poor English capability because the appellant was able to communicate through his interpreter and had every opportunity to discuss and describe the sponsor's health conditions. The Tribunal considered it "odd" that the appellant did not take "more interest or ensure he understood the sponsor's health conditions if he was in a committed, long term relationship" [emphasis added]. The Tribunal considered that the circumstance the appellant had "limited knowledge" of "did not take steps to find out" about the nature and extent of the sponsor's medical illnesses and conditions, suggests a lack of interest and commitment. That inferential conclusion was plainly open.
139 The Tribunal noted what it regarded as an inconsistency in the evidence between the appellant and sponsor as the appellant gave evidence that the sponsor went to doctors' appointments with her daughter, whereas the sponsor said she preferred to go to the doctor alone. The Tribunal did not accept that the appellant could not attend or take the sponsor to some appointments. The Tribunal thought that because the appellant was self-employed, he could arrange work around "at least some" of the appointments. The Tribunal also considered that the appellant's position that he would not get paid if he did not work (in order to attend the medical appointments) indicates a lack of "commitment and willingness" to provide "emotional support". The Tribunal said on this issue that whilst the appellant visited the sponsor in hospital, it considered that the appellant's lack of knowledge of, interest in, and emotional or practical support concerning the sponsor's health conditions, suggests a "lack of commitment to the relationship". That inferential conclusion was also open.
140 The Tribunal considered the sponsor's evidence that she first relies on her daughter (and adult family) for emotional support suggests a lack of reliance between the appellant and the sponsor as husband and wife.
141 The Tribunal considered that these circumstances indicate that the appellant and the sponsor lack a "mutual commitment" and that circumstance is inconsistent with a spousal relationship.
142 The Tribunal also considered that the appellant and sponsor had different priorities because the sponsor wanted to purchase property and complete her PhD whereas the appellant wanted to save money to travel to Europe and show the sponsor where he lived.
143 The Tribunal found that aspects of the evidence was not consistent concerning the shared interests of the appellant and sponsor as the sponsor (when asked what the couple shared in common) said that the appellant makes her laugh, whereas the appellant "hesitated" and simply said "everything". The Tribunal noted that the appellant then added that "they liked animals, going to Bunning[s], the movies and the open markets. The [appellant] said the sponsor spent all day and night on the internet and he did not like that she bought things on the internet". The Tribunal, in reaching its decision, considered that the sponsor and the appellant were not "forthcoming and spontaneous" on this matter in giving their evidence.
144 The Tribunal found that the appellant had little knowledge of the sponsor's previous relationships and when they ended. The Tribunal had regard to the appellant's evidence that he knew the sponsor had had marital relationships, with a child from each. He knew that the sponsor kept in contact with "Dave" and did not mind. The Tribunal noted that the appellant did not know why the relationships ended and while the Tribunal accepted that this may not be important information, the Tribunal considered that the appellant did not know of, or concern himself with, information about recent past relationships which, in turn, indicated a lack of understanding and communication between the couple.
145 Again, the Tribunal referred to the appellant being unaware of the sponsor's health problems "prior to marriage" and said that this also indicates a lack of open and honest communication and understanding between the couple.
146 The Tribunal also referred to the language barrier between the couple (which both the appellant and sponsor made reference to as "[making] things difficult"). With respect to the future, the Tribunal noted that the sponsor said she could not predict what could happen, but emphasised that the appellant was liked by her family and that he provides companionship and makes her laugh.
147 The Tribunal concluded that "on the evidence before it, the tribunal finds the commitment aspects of the relationship are not consistent with a spousal relationship".
148 The appellant's complaint about the Tribunal's treatment of the matters in Reg 1.15A(3)(d) is that the Tribunal did not engage with the substance of the appellant's submission in the sense described by the Full Court in BZD17 at [36] (citing the Full Court in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541 at [19]-[20] and at [38]). The passage at [36] in BZD17 is set out at [107] of these reasons. The point of criticism made by the appellant is that the Tribunal did not exhibit "an active intellectual engagement" with the relevant matters in question and the appellant was "left to guess" what role, if any, the relevant considerations played in the decision made by the Tribunal. There is no doubt that the Tribunal considered the evidence before it going to the Reg 1.15A(3)(d) matters.
149 Those propositions of the appellant, as a criticism of the Tribunal's decision on this topic, are entirely unsustainable. The Tribunal has analysed the evidence thoroughly. It has particularly had regard to the circumstances relating to the question of the commitment of the appellant and the sponsor one to the other. It has reached a conclusionary position on the various factors after having considered the evidence on the nature of the persons' commitment to each other. In that sense, it has reached findings about those matters.
150 It is not correct, in my view, to characterise the Tribunal's reasons on the Reg 1.15A(3) matters as merely reciting the submissions and propositions put to it by the appellant and sponsor. The Tribunal engaged with the prescribed matters in Reg 1.15A(3) in a way that demonstrates an engagement of the mental process of the decision-maker with the particular factual circumstances of the case that goes to answering the ultimate statutory question in s 5F of the Act, aided by Reg 1.15A(3). The Tribunal exhibited an active intellectual engagement with the evidence on those matters because it was actively conscious of the state of the evidence and engaged with it by a series of cognitively recognisable evaluative steps. Neither the sponsor nor the appellant was left to guess the "thinking" or the conclusions of the Tribunal. The ultimate statutory question is whether the appellant and the sponsor are in a "married relationship" which, according to the integers of the statute, requires determination of whether:
(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 husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
[emphasis added]
151 As can be seen from the Tribunal's reasons at [55]-[59], the Member considered that the relationship between the appellant and sponsor has been more "off" than "on" throughout the last few years; the sponsor has withdrawn her support from the appellant twice; there is a lack of documentation to support the relationship's existence; there was inconsistent evidence about their future plans, common interests, goals and contact with the appellant's family and the nature of the financial, household, social and commitment aspects of the relationship, leading to the Tribunal's conclusion that it did not accept that the appellant and the sponsor share a mutual commitment to each other and causing it to not accept that the appellant and the sponsor live together or that they live apart but not on a permanent basis.
152 The Tribunal discharged its review powers in accordance with the Full Court's consideration in He v MIBP. Ground 1 must fail.
153 The appellant accepts that ground 5 "coalesce[s]" with ground 1: para 49 of the appellant's written submissions. Accordingly, ground 5 must also fail.