Gao v Minister for Immigration and Citizenship [2025] FedCFamC2G 920

1. Before the Court is an application for judicial review of an administrative decision to refuse a partner visa, being just one of a series of unsuccessful attempts to remain in Australia.
2. For the reasons that follow, the application is dismissed with costs.

1. The First Applicant is a citizen of China who arrived in Australia on 10 July 2011 with her son (Second Applicant) (together, the Applicants) and former partner.
2. On 17 July 2012, the Applicants' Visitor (Class TR) (Subclass 676) visa expired and they were nominated as dependants on the protection visa application of the First Applicant's former partner. The protection visa was refused (initially, on 8 November 2012, a decision which was ultimately upheld by a Full Federal Court of Australia on 1 December 2016).
3. On 18 August 2016, the First Applicant lodged an application for a Visitor Medical Treatment visa which was refused on 24 August 2016 and subsequently reaffirmed by the Administrative Appeals Tribunal (as it then was) (Tribunal) on 14 February 2017.
4. On 16 March 2017, the First Applicant lodged an application for a UK Partner (Temporary) and BS Partner (Residence) visa (partner visa application) based on her relationship with a Mr Mark Rayner (sponsor) which included the Second Applicant as a member of the family unit. It is this partner visa application that is subject of these proceedings.
5. On 21 July 2017, a delegate of the First Respondent refused to grant the partner visa application.
6. On review before the Tribunal, the First Applicant appeared at a hearing with the assistance of a Mandarin interpreter and a representative. Her sponsor attended and gave oral evidence.
7. By decision record dated 3 February 2020, the Tribunal affirmed the delegate's decision to refuse the visa (Tribunal's decision), by reason of the requirements of cl.820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) not being met because the Tribunal member was not satisfied that the requirements of s.5F(2) of the Migration Act 1958 (Cth) (Act) were met at the time the partner visa application was made and at the time of the Tribunal's decision: at [34]-[36].

1. The originating application was filed on 21 February 2020, and most recently amended (when accepted for filing) on 25 November 2024.
2. During the course of the matter, the Applicants also filed: an affidavit of the First Applicant which annexed a copy of the Tribunal's decision; an outline of submissions and a list of authorities which were both accepted for filing on 25 November 2024.
3. For their part, the First Respondent filed: a response dated 2 March 2020 by which they sought that the application be dismissed with costs on the basis that the application fails to establish any jurisdictional error; a Court Book dated 17 June 2020 and an outline of submissions accepted for filing on 28 November 2024.
4. By their most recently amended application, the Applicants identified 2 grounds of alleged jurisdictional error with particulars as follows:
   1. The Tribunal fell into jurisdictional error by failing to appreciate that seeking to achieve a migration outcome is not inconsistent with meeting the criteria for the grant of the visa. By taking into account the Applicant's migration history, the Tribunal either (a) failed to apply the correct test and/or (b) took into account an irrelevant consideration and/or (c) acted in a way that was illogical or unreasonable.

Particulars

• 1.1. Under the heading "Other matters for consideration about the applicant", the Tribunal found as follows at paragraph [13]:

"The Tribunal referred to the delegate's decision throughout the hearing. The Tribunal asked the applicant if the delegate's following statement is accurate "your immigration history indicates that you arrived in Australia without any intention to return to China, and that you are willing to pursue all pathways to delay your departure from Australia." The applicant responded yes. Given the applicant's response at hearing, the Tribunal is of the view that the applicant has entered into this relationship for the sole purpose of remaining in Australia and gaining a migration outcome without any intention of returning to China."

(CB, 297)

• 1.2. 1.15A(3) of the Migration Regulations 1994 stipulates considerations that the Minister was required to take into account.

• 1.3. An Applicant's immigration history does not meet the definition of a consideration of the "circumstances of the relationship".

• 1.4. The Tribunal did not apply the correct test, or alternatively, the Tribunal took into account an irrelevant consideration, or alternatively, the Tribunal acted illogically or unreasonably, in failing to appreciate that seeking to achieve a migration outcome is not inconsistent with meeting the criteria for the grant of the visa.

1. The AAT fell into jurisdictional error in that the decision gave rise to an apprehension of bias.

Particulars

• 2.1. The Tribunal referred the applicant's immigration history in para [13] of its decision

(CB, 297).

• 2.2. This was prior to dealing with the considerations under 1.15A(3) of the Migration Regulations 1994.
• 2.3. This gave the impression that the Tribunal had already made up its mind.
• 2.4. It is not being claimed that the AAT was actually biased, nor is the Applicant making any suggestion regarding the subjective motives, attitudes, predilections or purposes of the decision-maker.
• 2.5. Rather, an appropriately informed, reasonable and fair-minded lay observer might apprehend a position of prejudgement in the way that the decision has been articulated

1. On 28 November 2024, the First Respondent filed an outline of submissions.
2. On 18 February 2025, the matter proceeded to final hearing before the Court as presently constituted. The Applicants was represented by Counsel and the First Respondent was represented by a solicitor advocate.

1. The criteria in issue before the Tribunal were that at cl.820.211(2)(a) and cl.820.221 of Schedule 3 to the Regulations, which at the relevant time provided:

820.21 - Criteria to be satisfied at time of application

820.211

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

820.22 - Criteria to be satisfied at time of decision

820.221

(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant:

(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

(c) has developed close business, cultural or personal ties in Australia.

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.

1. Regulation 1.15A of the Regulations provides for the considerations which the Minister is to take into account when making a determination under s.5F of the Act:

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:

...

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

...

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

(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.

1. Paragraph [13] of the Tribunal's decision was subject of both grounds of review and is extracted in full here:

The Tribunal referred to the delegate's decision throughout the hearing. The Tribunal asked the applicant if the delegate's following statement is accurate "your immigration history indicates that you arrived in Australia without any intention to return to China, and that you are willing to pursue all pathways to delay your departure from Australia." The applicant responded yes. Given the applicant's response at hearing, the Tribunal is of the view that the applicant has entered into this relationship for the sole purpose of remaining in Australia and gaining a migration outcome without any intention of returning to China.

1. By this ground, the Applicants were understood to contend that the Tribunal failed to apply the correct test and/or took into account an irrelevant consideration and/or acted in a way that was illogical or unreasonable by failing to appreciate that seeking to achieve a migration outcome is not inconsistent with meeting the criteria for the grant of the visa and by taking into account the Applicant's migration history.
2. Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an "evident and intelligible justification" (Minister for Immigration & Citizenship v Li [2013] HCA 18; [2013] 297 ALR 225 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) at [68] and [76]). It may also be found "if there is no logical connection between the evidence and the inferences or conclusions drawn" (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (Gordan J) at [43]; citing Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (Gummow ACJ, Heydon, Crennan, Kiefel And Bell JJ) at [135]).
3. The Applicants submitted that they have suffered a practical injustice of the kind expressed by His Honour Chief Justice Gleeson in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) at [37] and later applied in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
4. The Tribunal's decision reveals that the Tribunal member correctly identified the issue before it as whether the primary criteria at Part 820 of Schedule 2 to the Regulations were satisfied by at least one applicant to the partner visa application: at [2]. More specifically, whether the parties were in a spouse or de facto relationship at the time the partner visa application was made and at the time of the Tribunal's decision for purposes of cl.820.211(2)(a) and 820.221 and within the meaning of s.5F - which required the decision maker to have regard to all of the circumstances of the relationship including the factors at s.5F(2)(a)-(d) and reg.1.15A(3): at [7]-[8].
5. As the First Respondent submitted, the Tribunal was not confined to the factors at reg.1.15A(3) when considering all of the circumstances of the relationship for purposes of s.5F(2). The decision maker was not precluded from considering the First Applicant's own evidence about her migration history and intentions as extracted at [13] (the substance of which evidence is not challenged or in dispute in these proceedings). That evidence was capable of being relevant to the question of whether the relationship between the First Applicant and sponsor was genuine and there is nothing unreasonable, illogical or irrational about this consideration in the sense of the established authorities.
6. It follows that I am not persuaded that the Tribunal's decision was infected by jurisdictional error of any of the kinds pleaded by this ground 1.

1. By the remaining ground 2, the Applicant contended that she was denied a fair hearing because she subsequently claimed to apprehend bias on the part of the Tribunal member who decided her claim.
2. A demonstration of apprehended bias must meet a high bar assessed by reference to the "fair-minded lay observer": Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
3. The sequence of reasoning was said by the Applicant to disclose an apprehension of bias. Specifically, that the reference to the Applicant's migration history at [13], before dealing with the relevant considerations at reg.1.15A, gave the impression that the Tribunal had already made up its mind, as the Applicant's migration history took unjustified importance in the matter and set the tone for the rest of the decision.
4. The critical paragraph of the Tribunal's decision, at [13], confirmed that the Tribunal member referred to the delegate's decision throughout the Tribunal hearing and invited the Applicant to comment on, and the Applicant affirmed the accuracy of, the delegate's statement in the decision that were under review:

..your immigration history indicates that you arrived in Australia without any intention to return to China, and that you are willing to pursue all pathways to delay your departure from Australia.

1. Neither the substance of the finding at [13] nor its position in the decision is revealing of pre-judgement. The structure of the Tribunal's decision is such that the conclusory remarks at [13] followed a contextual summary (at [1]-[6]) and consideration of claims and evidence about whether the parties were in a spouse or de facto relationship (at [7]-[8]), whether the parties were validly married (at [9]) and the objective facts about the Applicants' arrival in Australia and visa history. Further, the Tribunal's consideration of the Applicants' immigration history and acknowledgement of the evidence of the First Applicant's intentions was based on the First Applicant's own evidence given directly to the Tribunal. As above, this evidence was a relevant factor for the Tribunal member to take into account. And, notwithstanding that the Tribunal was not obliged to follow the delegate's reasoning in conducting its de novo review, the opportunity to comment on the delegate's adverse consideration was appropriate as a measure of procedural fairness during the review process.
2. I would not be satisfied that the matters raised by the Applicants would indicate to a "fair-minded lay observer", who was properly informed, that the Tribunal may not bring an impartial mind to the matter. To the contrary, the Tribunal's positive finding of a marriage and detailed consideration and weighing of the evidence of other relevant factors about the sponsor, the commitment of the First Applicant and sponsor to each other, the social and financial aspects of the relationship and the nature of the household reflects that the Tribunal was open to considering the case on the strength of the claims and material before it.

1. This Court does not have the power to simply redetermine the Tribunal's factual findings nor its conclusion as to whether the First Applicant and her then dependent were entitled to a partner visa. What this Court can do is examine the procedure and decision of the Tribunal with a view towards determining whether it was affected by any material legal error.
2. For the above reasons, I am not satisfied that there is any error of jurisdiction made out and the application must therefore be dismissed. Costs were sought in the amount of $5000 which I consider reasonable in the circumstances and will order to be paid by the Applicants accordingly.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.