Ground three and four
67 Grounds three and four of the appeal alleges follows:
1. The Court erred in finding (at AB 576 [21]-[22]) that the appellant's spouse's statement (now at AB 157) and the appellant's statement (now at AB 346-348) were not relevant to the issue of the nature of the marital household and that any failure to consider that evidence did not result in reviewable error.
2. The Court should have found that the statements of the appellant and his spouse at AB 346-348 and AB 157 respectively, were both relevant to the issue of the nature of the marital household and were not lawfully considered, and that the failure to consider constituted jurisdictional error.
68 Under these grounds the appellant alleged that the Tribunal erred in failing to consider, in the sense of failing to give active intellectual consideration to:
(a) the sponsor's statement dated 21 October 2013 attesting to the genuineness of the relationship and the marriage as at that time; and
(b) the appellant's August 2015 Declaration to the effect that he was in a genuine relationship with the sponsor from August 2012, and in a committed marriage from July 2013 until February 2015 when he was informed by the Department that the sponsor had notified it that their relationship had ended;
and that the primary judge erred (at [21]-[22]) in failing to so find.
69 The primary judge dealt with this submission below, as follows. His Honour noted (at [20]) the applicant's submission that, along with two other items of evidence, the sponsor's statement and the appellant's August 2015 Declaration were "highly relevant" to the question whether a genuine spousal relationship existed as at March 2014. His Honour did not though accept that this evidence was relevant or even material.
70 In relation to the sponsor's statement, the primary judge said (at [21]):
It was observed earlier that the Tribunal accepted that the couple's marriage had been genuine and had remained on foot for a period. The relevant, remaining issue for the Tribunal was whether the spousal relationship was on foot in March 2014, when family violence allegedly occurred. The statement referred to in particular 1(b)(i) [being the sponsor's statement] was not relevant to that issue and so even if the Tribunal had not had regard to it, that would not have been an error.
71 In relation to the August 2015 Declaration, his Honour said (at [22]):
As to particular 1(b)(ii) [being the August 2015 Declaration], the applicant's statement reproduced at pages 266-268 of the Court Book described the couple's relationship but said nothing substantive about how their household operated other than that the Sponsor had cared for the applicant on one occasion when he was ill and they had bought a dog. If the Tribunal said nothing about this statement in the context of the couple's household, it was because there was nothing useful to rehearse.
72 More generally, the primary judge said (at [24]):
If the contents of the documents referred to by the applicant had been relevant to how the couple's household was established and ran, then a failure to discuss them might have grounded a finding that they had not been considered. However, as the Tribunal was under no duty to refer to evidence which was not the foundation of findings of fact, such an inference would not be appropriate in relation to the documents cited by the applicant. The appropriate conclusion is that they were not mentioned because they were not considered material to the issue in question.
73 As I said in DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072 at [43] and [45]-[48]:
[43] Section 54(1) [of the Act] means that it is mandatory for the Minister to "have regard to" the information that the applicant provides to the Minister through his submissions and further submissions. Compliance with the obligation under s 54(1) is a jurisdictional requirement: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 (Singh) at [53] (Sackville J).
…
[45] The Minister was accordingly required to "have regard to" those matters. This required the Minister to engage in a real process of consideration of the information submitted, that is, an "active intellectual process directed at the information": Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 1726 (Tickner) at 462 (Black CJ); Singh at [59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46] (Hill, Madgwick and Conti JJ). The extent of the active intellectual process depends on the nature and relevance of the information: Singh at [59]; Tickner at 462-463. It is not enough for the Minister merely to be aware of the information, and the duty under s 54(1) will not have been discharged where no realistic regard is had to the information: A v Pelekanakis (1999) 91 FCR 70; [1999] FCA 236 at [50] (Weinberg J); Singh at [59].
[46] Whether the Minister failed to have regard to the considerations alleged is a question of fact, and the applicant bears the onus of establishing the failure on the balance of probabilities: Singh at [60]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [67], [91]-[92] (Gummow, Heydon and Crennan JJ).
[47] The evidence before the Minister must be considered as a whole. The Minister's reasons should not be reviewed "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Singh at [65].
[48] The fact that a decision makes no, or only a passing, reference to a relevant consideration does not necessarily mean that the decision-maker did not consider the matter at all. The Minister may give little or no weight to a relevant matter after having considered it, and this may explain a lack of reference to the matter rather than a failure of consideration: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (ARG15) at [65] (Griffiths, Perry and Bromwich JJ) citing SZGUR at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34] (Katzmann, Griffiths and Wigney JJ). However, as the Full Court said in SZSRS at [34]:
…where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.
See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52] (Kenny, Griffiths and Mortimer JJ).
The same is, of course, true of the Tribunal and its reasons.
74 In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.
75 It is common ground that the Tribunal's reasons made no reference to the sponsor's statement. The Minister submitted however that it would not be appropriate to infer that the Tribunal had failed to consider either that statement or the August 2015 Declaration when:
(a) the sponsor's statement merely attested to the genuineness of the couple's relationship up to October 2013, and there was nothing in it which was inconsistent with the Tribunal's finding that there was not a genuine spousal relationship as at March 2014; and
(b) the August 2015 Declaration was consistent with the appellant's evidence to the Tribunal that he considered the marriage to be ongoing until he was notified in February 2015 that his sponsorship had been withdrawn.
76 On the Minister's argument, there is no basis in the Tribunal's reasons to suggest that either the sponsor's statement or the August 2015 Declaration was overlooked or not considered by it, to the extent that it bore on whether there was a genuine spousal relationship in March 2014. The Minister said that it not necessary for the Tribunal to refer to every piece of evidence relied on by the appellant, nor was it required to give a "line by line refutation" of the appellant's claims: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French J (as his Honour then was), Sackville and Hely JJ); Re Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]-[67] (McHugh J); Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [48]-[49] (Besanko, Barker and Bromwich JJ).
77 While the Minister did not embrace the primary judge's statement (at [24]) that the sponsor's statement and the August 2015 Declaration were not material to the issue as to whether a spousal relationship existed in March 2014, the Minister nevertheless maintained that it was not appropriate to infer that either was not considered by the Tribunal.
78 I take a different view.
79 In the sponsor's statement she said that in August 2012 it was agreed that the appellant would move to Queensland to live with her relatives in an apartment in Brisbane, and the sponsor stayed with him every weekend. Then, towards the end of 2012 she moved into the apartment with the appellant. In July 2013, they were married in Sri Lanka. In late October 2013 she stated that they were "very happy together and as a couple we have grown up and matured." The sponsor's statement was unchallenged evidence that the couple were in a relationship from August 2012; they lived together from November 2012; they were validly and genuinely married in July 2013; and that they had a genuine spousal relationship to at least the end of October 2013. The Tribunal accepted that the couple were in a genuine spousal relationship as at the date of the sponsor's statement on 21 October 2013, and that they continued in such a relationship for a period thereafter. The sponsor's statement tended to corroborate the appellant's evidence that the couple had a genuine spousal relationship in the months immediately before March 2014.
80 The sponsor's statement was relevant to whether or not the Tribunal was satisfied as to the existence of a spousal relationship as at March 2014, just over four months after it was made. Yet the Tribunal made no reference whatsoever to it. I am satisfied that the Tribunal failed to consider the sponsor's statement, in the sense of give active intellectual consideration to it.
81 The Tribunal's failure is clearer in relation to the appellant's August 2015 declaration. That declaration contained the following matters which were relevant and material to the existence of a spousal relationship before, during and after March 2014:
(a) in August or September 2012, the appellant moved to Brisbane to live with the sponsor by her invitation and with the approval of her parents. The couple lived at the sponsor's cousin's house in Bowen Hills where they had their own room;
(b) in July 2013, the couple married in Sri Lanka;
(c) in February 2014, they moved into the sponsor's father's house in Springfield, for which the appellant paid the weekly rental of $350. Their friends in Brisbane were really happy and most of them came to assist with the move. That was "a new beginning" for the couple and they were both "very excited for the future" and enjoyed decorating the house and making it their home;
(d) in April 2014, they bought a pet dog named Tyson, who was their "happiness and joy";
(e) in June 2014, the appellant's mother and his brother came to stay with them for a short while. The sponsor's parents also lived with them during that period of time. It was a great house "full of a family reunion";
(f) in June 2014, the sponsor fell pregnant. After a long family discussion the couple made the difficult decision to terminate the pregnancy. In this period they "stayed strong as a couple through the hard times" and their "intimacy gained momentum after the unfortunate event of the abortion";
(g) during September 2014 the appellant fell ill and the sponsor took responsibility for taking care of him;
(h) in September 2014, the sponsor came to the appellant's workplace to help him out during a big sales event; and
(i) in early 2015 their "intimacy was on point" as was their social life.
82 That evidence was relevant and probative to show that a genuine spousal relationship existed before, during and after March 2014, yet the Tribunal did not refer to it in its reasoning:
(a) under reg 1.15A3(b) which culminated in its statements about the nature of the household (at [33]-[36]); or
(b) under reg 1.15A3(d) in regard to the nature of the couple's commitment to each other, which culminated in its statements (at [41]-[46]).
83 I accept the Minister's contention that the Tribunal set out much of the evidence from the August 2015 Declaration upon which the appellant relied, but that does not show that the Tribunal engaged in a real process of consideration of that evidence. The Tribunal did not, for example, give real consideration to the appellant's evidence that:
(a) the sponsor fell pregnant in June 2014, which indicated that the couple were still in a sexual relationship in March 2014;
(b) that the couple "stayed strong" through the difficult decision to terminate the pregnancy in June 2014, that their intimacy "gained momentum" after the termination;
(c) that they were still being intimate in early 2015.
That evidence was contrary to the affidavits of the sponsor and her father in the divorce proceeding but the Tribunal did not expressly state that it preferred those affidavits to the appellant's declaration or why. It did not weigh the competing evidence. The Tribunal only said (at [45]) that it preferred the affidavits of the sponsor and her father to the written statements provided by the applicant's friends.
84 The Tribunal's consideration in relation to the nature of the couple's household, including their living arrangements, was limited to the following (at [33]-[36]):
(a) the places where the couple had lived over the period of their relationship (at [33]);
(b) that there was no evidence regarding the nature of the household other than the appellant's claim that he did 90% of the cooking and cleaning when the couple were living together in 2014, because the sponsor was studying (at [34]);
(c) that the sponsor's father claimed in his affidavit in the divorce proceeding that when he visited the couple from February 2013 they were "emotionally distant", and the appellant's mother claimed that when she visited in June 2014 the household was "dysfunctional" with the sponsor "behaving unacceptably and leaving to stay with friends and family"(at [35]); and
(d) noted that the sponsor and her father had both claimed in sworn statements in the divorce proceedings that from July 2014 the parties lived separate lives while living under the same roof, and although they remained civil and did not share their money. or cook, or shop, or clean for each other (at [36]).
85 The Tribunal's consideration in relation to the nature of the couple's commitment to each other (which includes the duration of their relationship; the length of time they lived together and the degree of companionship and emotional support they drew from each other) was limited to the following (at [41]-[42]):
(a) that there was evidence in the form of printouts of several Facebook pages and text messages that the couples were "in some sort of relationship in June, July and August 2014". On one occasion the parties were agreeing to each pay half the cost of the termination of the sponsor's pregnancy and the sponsor signed off "love you". On another occasion the sponsor appeared to be apologising for embarrassing and hurting the appellant's feelings and asking if they can still be friends (at [41]); and
(b) that the appellant said that although he was humiliated and abused by the sponsor, and was unhappy in the relationship, he remained committed to it until he was advised that the sponsor had withdrawn her sponsorship. He acknowledged that the sponsor might have lacked commitment to the relationship but reiterated his belief that nevertheless it was genuine (at [42]).
86 The Tribunal's reasons do not reveal any consideration of the evidence in the August 2015 Declaration relevant to the couple's commitment to each other during and after March 2014. For example, the Tribunal did not give real consideration to the appellant's evidence that:
(a) in March 2014 the couple were still in a sexual relationship (which can be inferred from the sponsor's pregnancy in June 2014)
(b) in April 2014 the couple purchased a dog together which the appellant described as their "happiness and joy";
(c) in June 2014 the couple and their families had a happy family reunion;
(d) in June 2014 the couple "stayed strong" through the difficult decision to terminate the pregnancy, that their intimacy "gained momentum" after the termination; and
(e) their intimacy remained "on point" in early 2015.
87 Nor did Tribunal consider the matters in the August 2015 Declaration alongside the photographs and social media screenshots provided by the appellant, which also tended to show that the couple remained in a spousal relationship well after April 2014. That included the following:
(a) a screenshot of a profile update on Facebook dated 9 April 2014, which tagged the appellant, that said: "Got a German Shepard Named TYSON";
(b) a screenshot of a text message from someone named "Uncle Edward" dated 11 June 2014 (which I infer is the sponsor's father) which said "[the sponsor] needs you care and attentipn [sic] at this time to come over [sic] her exam stress…" to which the appellant replied: "No worries uncle. Will do. She does get stressed during her exams. We both need to realise it's only a temporary thing";
(c) a text message from the sponsor to the appellant on or around 19 or 20 June 2014 saying that she was sorry for "us both" that the termination of pregnancy was happening, which she signed off "love you";
(d) a Facebook message from the sponsor to the appellant on 21 July 2014 in which she said she wanted to have a fun day together and signed off "feeling in love";
(e) photographs dated 14 July 2014 in which the appellant gave the sponsor flowers and they went out for dinner together, one of these photos show the couple kissing;
(f) a screenshot of photographs of the couple out socialising with friends dated 15 July 2014;
(g) photographs of the couple socialising and kissing dated 29 July 2014;
(h) photographs of the couple socialising and cuddling for the photograph dated 10 August 2014;
(i) a screenshot of text messages from the sponsor to the appellant on 13 August 2014 in which she said "hi, I miss U" and apologised for hurting his feelings that day;
(j) photographs of the couple out for dinner on 16 August 2014 and on a trip to the country dated 17 August 2014;
(k) photographs of the couple out for dinner with friends dated 16 September 2014;
(l) screenshots of photographs of the couple socialising at a friend's birthday party on 15 September 2014;
(m) screenshots of photographs of the sponsor and the appellant participating in a Sri Lankan dance dated 28 September 2014;
(n) a photograph of the appellant, the sponsor and the sponsor's father having a meal at home together dated 24 October 2014; and
(o) a screenshot indicating that the couple and two friends went out to a hotel in Red Hill, Queensland for "post-exam madness" on 23 November 2014.
88 The Tribunal briefly referred to the text messages and screenshots (at [41]) but found only that they showed that the couple was in "some sort of relationship" in June, July and August 2014. The Tribunal was required to properly engage with the evidence before deciding that the spousal relationship had ceased by March 2014. Yet, amongst other things, the Tribunal did not consider whether or how the photographs and screenshots corroborated the August 2015 Declaration, nor how the appellant's evidence in total should be weighed against the affidavits in the divorce proceeding in which the sponsor and her father deposed that the couple separated in July 2014, that they did not communicate with each other on a regular basis, that she avoided being in the same area of the house with him, and that she made it clear they were no longer husband and wife. The Tribunal did not consider how the photograph of the appellant, the sponsor and the sponsor's father having a meal at home together on 24 October 2014 should be weighed against the father's affidavit that from July 2014 the couple took dinner separately. Although the Tribunal was plainly aware of the photographs and screenshots it failed to consider that evidence alongside the August 2015 Declaration.
89 Another indication that the Tribunal failed to engage in an active intellectual process in relation to the August 2015 Declaration is that it did not weigh that declaration against the appellant's inconsistent statements in his July 2015 Declaration. In the July 2015 Declaration the appellant made a series of statements capable of founding a conclusion that the sponsor was not committed to an ongoing spousal relationship, including that she repeatedly sent rude and abusive text messages to the appellant, she labelled him a "low-grade provider" which hurt him, she told him to get "a real job", she humiliated him on Facebook, she repeatedly harassed him in relation to their finances, she picked fights about insignificant matters, and she reduced him to tears in front of a neighbour. It tended to show that the couple's relationship was in serious difficulties from much earlier than the appellant said in the August 2015 Declaration.
90 In the August 2015 Declaration the appellant painted a picture of a marriage which had some relatively minor difficulties, characterised as "hiccups", and in which the couple continued to have many happy times together. It contained no hint of the serious and ultimately insoluble problems which the July 2015 Declaration indicated arose because of the sponsor's attitude and behaviour. For example, the August 2015 Declaration described the period in June 2014 when both the appellant's mother and the sponsor's parents stayed with the couple in Brisbane as "a great houseful of a family reunion". In contrast, in the July 2015 Declaration the appellant said that his mother came to stay for 45 days in order to give some marital guidance to the sponsor, and while his mother was there the sponsor picked two large fights with him about insignificant matters. He said that the sponsor's behaviour in that period was so bad he felt their "family unit" was falling apart and he was "depressed and panicked" by what the appellant's mother described as the sponsor's "unbecoming conduct". The Tribunal's reasons did not refer or weigh these or the many other inconsistencies between the two declarations by the appellant.
91 The absence of proper consideration of the evidence as to the nature of the couple's relationship; their commitment to each other and the length of their relationship can also be seen in other parts of the Tribunal's reasons. For example, the Tribunal said (at [35]) that in his affidavit the sponsor's father said that when he visited the couple from February 2013 they were "emotionally distant". That was wrong. The father said that he and his wife visited the couple "from February 2013" and that "over time we noticed" that their emotional connection had deteriorated. He did not say that they were emotionally distant in February 2013, nor did he say when that emotional distance developed.
92 In another example, the Tribunal said (at [45]) that in light of the "detailed affidavits" of the sponsor and her father in which they said the couple had lived separate lives from July 2014, the Tribunal did not find the written statements provided by the appellant's friends to be persuasive. First, on no view could those two very short affidavits be properly described as "detailed". Second, the Tribunal failed to note that the materials before it showed that the sponsor's evidence as to when the couple commenced to lead separate lives was quite inconsistent. The materials showed that:
(a) on 2 December 2014, the sponsor emailed the Department to enquire what would happen to the appellant's visa and residency status if the couple were to separate "very soon". That would date the couple's separation at December or later;
(b) on 4 February 2015, the sponsor emailed the Department informing it of the breakdown of the relationship, stating that the couple had been separated for six months and awaiting divorce. That would date the couple's separation as having occurred in August 2014;
(c) on 16 July 2015, the sponsor swore her affidavit in support of the divorce application in which she said that the couple commenced to lead separate lives, living under the one roof, in July 2014. That would date the couple's separation as having occurred in July 2014;
(d) on 2 October 2015, the sponsor emailed the Department and said that the couple commenced to lead separate lives on 24 September 2014.
In my view, because the Tribunal failed to engage in an active intellectual process in relation to the evidence, it treated the sponsor's affidavit which stated a July 2014 separation date as a firm date. In fact, the sponsor's statements about that had been inconsistent.
93 These errors indicate that any benefit of the doubt the Tribunal might have been given on the question of whether it engaged in an active intellectual process in relation to the evidence in the August 2015 Declaration should be forfeited: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [5]-[6] (Gleeson CJ). As his Honour said in that case, the Tribunal's errors in relation to the evidence about the couple's relationship is tantamount to the "thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before": see FKO17 v Minister for Home Affairs [2019] FCA 98 at [64] (Wheelahan J).
94 An inference that the Tribunal has failed to give real consideration to the evidence before it may be drawn from its failure to expressly deal with that evidence in its reasons, but that is an inference "not too readily to be drawn" where the reasons are otherwise comprehensive and the issue has at least been identified: Applicant WAEE at [47]. In the present case the Tribunal's reasons are far from comprehensive, and the matters to which the Tribunal failed to real and genuine consideration concerned the central question as to whether a genuine spousal relationship existed as at March 2014. In my view the Tribunal fell into error by failing to grapple with or consider the whole of the evidence in relation to that question, including by failing to consider or weigh the competing evidence. Respectfully, the primary judge was wrong to conclude that the Tribunal did not refer to the sponsor's statement and the August 2015 Declaration as it was not material to the issue before it.
95 Given that the evidence the Tribunal failed to consider went to the central question in the case the error was material in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ), and thus was jurisdictional.
96 Grounds three and four of the appeal shall be allowed.