Monterde v Minister for Immigration and Citizenship [2025] FedCFamC2G 1495

1. By way of Application filed on 21 June 2021, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 18 May 2021 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant (Applicant) a combined Partner (Temporary) (Class UK) Subclass 820 / Partner (Residence) (Class BS) Subclass 801 visa (Visa) on the basis that the Applicant did not satisfy cl 820.211(2)(a) or cl 820.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
3. The hearing of the Application took place at the Melbourne Registry of the Court on 9 September 2025 (Hearing). The Minister was represented by counsel. The Applicant was represented by a solicitor. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant satisfied cl 820.211(2)(a) or cl 820.211 of the Regulations.

1. The Applicant is a citizen of the Philippines.
2. On 8 July 2016, the Applicant first arrived in Australia as the holder of a Tourist (Subclass 600) visa.[2]
3. On 5 October 2016, the Applicant departed Australia.[3]
4. On 10 March 2017, the Applicant returned to Australia on a second Tourist (Subclass 600) visa.[4]
5. On 5 June 2017, the Applicant applied for the Visa, the subject of these proceedings.[5] The Applicant applied for the Visa based on her relationship with her sponsor (Sponsor) at the time, an Australian citizen.[6]
6. On 7 August 2017, the Applicant notified the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (Department) by way of email, that her relationship with the Sponsor had ceased, as a result of family violence.[7]
7. On 9 August 2017, the Department acknowledged receipt of the Applicant's email.[8] The Department also requested written consent to remove and transfer the Applicant's online Immigration account (IMMI).[9]
8. On 18 August 2017, the Magistrates' Court made an Interim Intervention Order against the Sponsor under the Magistrates' Court Family Violence Protection Act 2008 (Vic).[10]
9. On 21 September 2017, the Department invited the Applicant to comment on information in relation to her Visa application. The invitation sought a response as to whether the relationship with the Sponsor was 'genuine and continuing' prior to the claims of family violence.[11]
10. On 17 October 2017, the Applicant emailed her migration agent (Representative) in relation to her relationship breakdown with the Sponsor.[12] In her email, the Applicant stated:[13]

I don't think I have [supporting] documents or info. All was verbal that we were [supposed] to get married this month and live together forever. I don't know what other documents. Would this attachment be something like sponsoring? He must have sent you some emails discussing our plans and staying together. Thank you.

1. On 16 February 2018, the Department wrote to the Applicant and requested further information to consider her Visa application.[14] The Applicant did not respond to this request.
2. On 9 May 2018, a Delegate of the Minister refused to grant the Visa application (Delegate's Decision) on the basis that they were not satisfied that the Applicant met cl 820.211(2)(a) or cl 820.211 of the Regulations.[15]
3. On 15 May 2018, the Applicant applied to the Tribunal for review (Review Application).[16]
4. On 17 May 2018, the Tribunal acknowledged receipt of the Review Application.[17]
5. On 28 August 2018, the Sponsor withdrew his sponsorship.[18]
6. On 23 March 2021, the Tribunal invited the Applicant to attend a hearing via videoconference on 27 April 2021.[19]
7. On 31 March 2021, the Tribunal emailed the Applicant and invited her to attend a test of the video conferencing system on 20 April 2021.[20]
8. On 18 April 2021, the Representative provided a response to the hearing invitation.[21]
9. On 20 April 2021, the Tribunal advised that the new date for testing the video conferencing system would be on 21 April 2021.[22]
10. On 27 April 2021, the Applicant attended the hearing via videoconference with the assistance of her Representative.[23]
11. On 10 May 2021, the Representative submitted further submissions to the Tribunal in support of the Applicant's Review Application.[24]
12. On 18 May 2021, the Tribunal affirmed the Delegate's Decision not to grant the Applicant the Visa.[25]
13. On 19 May 2021, the Tribunal provided written reasons of its decision to the Applicant.[26]
14. On 10 June 2021, the Applicant wrote to the Tribunal on two occasions and requested an audio recording of the hearing.[27]
15. On 11 June 2021, the Applicant again wrote to the Tribunal and requested an audio recording of the hearing.[28]
16. On 11 June 2021, the Tribunal provided an audio recording of the hearing to the Applicant.[29]

1. The Tribunal's Decision is at 303 to 312 of the Court Book.
2. The Tribunal outlined the procedural and legislative background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [2] to [11].
3. The Tribunal identified the dispositive issue as whether the Applicant was the spouse or de facto partner of the Sponsor, at the time of the Visa application. The Tribunal also considered whether the Applicant retained the status of spouse or de facto partner at the time of the decision.[30]
4. The Tribunal noted that each of the matters specified in reg 1.09A(3) of the Regulations were "effectively questions which must be answered".[31] Relevantly, the Tribunal stated that it had regard to "all of the [Applicant's] claims and the evidence before it".[32] This included the Delegate's Decision, as well as pre-hearing, post-hearing and oral submissions during the hearing.[33]
5. As to the financial aspects of the relationship,[34] the Tribunal accepted that the Sponsor paid for the Applicant's visits to Australia and the Visa application.[35] However, the Tribunal did not accept that the Applicant and Sponsor shared financial arrangements "to any significant degree".[36]
6. As to the nature of the household,[37] the Tribunal considered the Applicant's two periods of cohabitation with the Sponsor.[38] While the first period of cohabitation was harmonious, the Applicant indicated that the second period "was less harmonious" and that she escaped the Sponsor's home due to "repeated incidents of family violence".[39] The Tribunal gave some weight to this claim.[40]
7. As to the social aspects of the relationship,[41] the Tribunal accepted the Applicant's claims that "social interaction" was not a major pillar of their relationship. The Tribunal accepted that while the Applicant and Sponsor did travel together, they did not often present themselves as a couple. The Tribunal found that the relationship was not public "because it was widely insecure".[42]
8. The Tribunal then considered the Applicant's evidence as to the nature of her relationship commitment with the Sponsor.[43] The Applicant indicated that the Sponsor had become "angry and violent" in the first period of cohabitation (between 8 July 2016 and 5 October 2016).[44] The Applicant stated at the hearing that she communicated frequently with the Sponsor upon her return to the Philippines in October 2016. The Tribunal noted that no "[telephone] or other call records" had been provided by the Applicant.[45]
9. On the evidence before it, the Tribunal did not accept that the Applicant had "scammed" the Sponsor as part of her Visa application.[46] The Tribunal placed no weight on the allegations contained within the "dob-in" information located in the Applicant's Department file.[47]
10. The Tribunal noted with concern that "[a] key matter not reasonably supported with evidence is that the [Applicant and the Sponsor] were living together, and not separately and apart, for any period before and between the Applicant's two trips".[48]
11. The Tribunal was ultimately not satisfied that the Applicant had been the spouse or de facto partner of the Sponsor at the time of the Visa application or at the time of its decision. The Applicant therefore failed to satisfy cl 820.211(2)(a) or cl 820.211 of the Regulations.[49] The Tribunal refrained from making any findings as to the family violence claims against the Sponsor.[50]

1. On 21 June 2021, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 7 December 2021, Orders were made by Registrar Van Der Westhuizen of this Court for the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions, and any additional evidence. For the First Respondent to file and serve at least 7 days before the hearing: an Affidavit of Service of the Court Book, written submissions and any additional evidence.
3. On 15 August 2025, I made Orders by consent that Orders 5 and 6 of the Orders made by Registrar Van Der Westhuizen on 7 December 2021 be varied.
4. On 4 September 2025, I made Orders by consent that the First Respondent's name be amended to "Minister for Immigration and Citizenship". That Orders 5 and 6 of the Orders made by Registrar Van Der Westhuizen on 7 December 2021, as varied by the Orders made by me on 15 August 2025, be further varied. That the time for compliance with Order 5 by the Applicant be extended to 1 September 2025. That the time for compliance with Order 6 by the First Respondent be extended to 5 September 2025.
5. On 8 September 2025, an Amended Application was filed in this Court.
6. This matter was heard on 9 September 2025 for a Final Hearing before me.
7. The Applicant relied upon the following documents:

(a) the Application filed 21 June 2021; and

(b) affidavit of Russell Luen-Yi Tien affirmed and filed on 21 June 2021 (Affidavit of Russell Luen-Yi Tien affirmed 21 June 2021);

(c) affidavit of Russell Luen-Yi Tien affirmed on 21 August 2025, filed on 1 September 2025 (Affidavit of Russell Luen-Yi Tien affirmed 21 August 2025);

(d) outline of submissions filed 1 September 2025; and

(e) amended Application filed 8 September 2025.

(a) the response, filed 5 November 2021;

(b) outline of submissions filed 5 September 2029; and

(c) list of authorities filed 5 September 2025.

1. Both parties relied on the Court Book.
2. The originating Application contained the following grounds of review (Original Grounds of Review):
   1. The Tribunal stated that the Applicant did not request additional time to consider the information although it was clear to the Tribunal that the Applicant was distressed and past recollections of traumatic circumstances were likely triggered and therefore the Applicant was not in a position to provide answers to the Tribunal's questions. (Original Ground 1).
   2. The Tribunal did not properly consider all of the information available before it and made the incorrect decision that the applicant was not the spouse or de facto partner of the sponsor for the Partner (Temporary) (Class UK) visa at the time of lodgement of the visa application. (Original Ground 2).

1. The Amended Application contains the following grounds of review (Grounds of Review):
   1. Ground 1: that the Tribunal failed to comply with s359AA of the Act, by failing to comply with its obligations under s359AA (1)(b)(i) - (iv), and in not doing so, had committed jurisdictional error. (Ground 1).
   2. Ground 2: that the Tribunal erred in law by misconstruing s 5CB(2)(c) of the Act. It treated the absence of cohabitation between the Applicant and her sponsor as determinative of the absence of a de facto relationship, and not whether the parties were "not living separately and apart on a permanent basis." In so doing, the Tribunal applied the wrong legal test, contrary to SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69, and thereby committed jurisdictional error. (Ground 2).

1. The Applicant submits that the Tribunal's Decision is one affected by jurisdictional error and should be remitted back to the Tribunal for review according to law.

1. The Applicant submits that the Tribunal failed to comply with and properly discharge its obligations under s 359AA of the Migration Act.
2. During the hearing, the Tribunal put to the Applicant, under s 359AA, that it had certain adverse information in the Department file that would "subject to [the Applicant's] comments or response be the reason, or part of the reason to affirm the decision to refuse to grant the visa".[51]
3. The Tribunal stated that the adverse information was that:[52]

The gist of this information is that you used him to get your Australian visa, you scammed him for $10,000, and then you went off to Queensland and fabricated stories about... smacking her...and being a womanizer and, that you can be charming, but you're a user and you're a jealous, possessive girl and it wasn't what you say.

1. The Tribunal put to the Applicant that it would explain the relevance of the information.[53] However, beyond stating that it had not "made up its mind",[54] the Applicant submits that there were no further clarifications provided to her. The Applicant submits that the consequences of the adverse information being relied upon were not explained to her at the hearing.
2. The Applicant submits that the Tribunal failed to ensure that it had discharged its obligations under s 359AA(1)(b)(i) of the Migration Act.
3. The Applicant acknowledges that the Tribunal had considered the allegations and placed no weight on the "dob-in information".[55] However, the Applicant submits that a different outcome would have been possible had the Tribunal not breached s 359AA(1)(b)(i) of the Migration Act.
4. The Applicant relies on the case of Dau,[56] which found that the Court should be "positively satisfied"[57] that compliance with s 359AA "could not make a difference to the outcome at any further hearing". The Applicant submits that compliance with the provision may have allowed the Applicant to speak to her Representative or articulate her response more clearly.
5. In oral submissions, the Applicant contended that the "information" that is referred to is the "dob-in" information. However, during the Hearing, only very brief information was provided.

1. The Applicant submits that the Tribunal erred by misconstruing s 5CB(2)(c) of the Migration Act.
2. The Tribunal identified that a "key matter not reasonably supported with evidence" was whether the parties were "living together, and not separately and apart".[58]
3. The Applicant provided evidence in relation to periods of cohabitation with the Sponsor as follows:[59]

(a) between 8 July 2016 and 5 October 2016; and

(b) between 10 March 2017 until she separated from the Sponsor on 25 July 2017 and moved into a woman's shelter.

1. The Tribunal found that it was not credible for the Applicant to assert that the relationship was ongoing throughout most of 2016 and 2017. The Tribunal came to this conclusion on the basis that the Applicant resumed employment and residence with her parents in the Philippines. There was also a gap in time before she visited the Sponsor on her second visit to Australia.[60]
2. The Applicant contends that she first lived with the Sponsor from 8 July 2016 and had to return to the Philippines due to her Visitor visa expiring. The Applicant then returned to Australia and resumed living with the Sponsor on 10 March 2017. The period continued until the breakdown of the relationship on 25 July 2017.
3. The Applicant submits that the Tribunal misconstrued s 5CB(2)(c)(ii) of the Migration Act by placing importance on the Applicant cohabitating with the Sponsor, "and not separately and apart".[61] The Applicant notes that in SZOXP,[62] the Full Court held that cohabitation was not a requirement for a de facto relationship.

1. The Applicant submits that the error identified in Ground 2 is material. The threshold of materiality is "not onerous" or "undemanding".[63] The Applicant contends that the Tribunal was required to consider whether the relationship satisfied the statutory definition under s 5CB of the Migration Act, despite physical separation. The Applicant submits that the Tribunal erred by placing emphasis on the Applicants time in "living together and not separately apart".

1. At the Hearing on 9 September 2025, the Applicant's solicitor made oral submissions that expanded upon the written submissions.

1. The Minister submits that the Tribunal's Decision is a "privative clause decision" within the meaning of Part 8 of the Migration Act and is not affected by jurisdictional error.

1. The Minister contends that the Tribunal appropriately identified the relevance of the adverse information that was put to the Applicant. Namely, that "[the Applicant] was fabricating stories about the [Sponsor] assaulting her and being a 'womaniser', whereas the truth was she used the [Sponsor] to get her Australian visa and had 'scammed' the sponsor for $10,000; and further, once she got her bridging visa she left the [Sponsor] and went [to] Queensland."[64]
2. At the hearing, the Tribunal put this adverse information to the Applicant for comment.[65] The Tribunal noted that the Applicant "did not request additional time to consider the information",[66] and responded to the information persuasively such that no weight was placed upon it.[67]
3. The Minister submits that the Tribunal complied with its procedural fairness obligations under s 359A(1) of the Migration Act.[68]
4. The Minister submits that the Applicant further addressed the "adverse information" issue in her written submissions dated 10 May 2021.[69] Accordingly, even if the Tribunal failed to strictly adhere to s 359AA(1)(b)(i) of the Migration Act, any error would not be material as the Applicant cogently responded to the allegation on numerous occasions.[70]

1. The Minister submits that this ground is an attempt at impermissible merits review.
2. The Minister submits that the Applicant's outline of submissions[71] do not bear any direct connection to this ground. The Applicant's submissions suggest that the Tribunal misconstrued s 5CB(2)(c)(ii) of the Migration Act by placing importance on the Applicant living together with the Sponsor and "not separately and apart".[72]
3. The Applicant suggests that the Tribunal erred in circumstances where the evidence "shows that [the Applicant and the Sponsor] were not living separately and apart on a permanent basis (emphasis added)" between October 2016 to March 2017.[73]
4. The Minister submits that the Tribunal clearly understood and referenced the key elements of s 5CB(2)(c) of the Migration Act.[74] The Tribunal made its findings on the basis of the unsatisfactory and "puzzling" nature of the Applicant's claims.[75] The Tribunal's conclusion that it was "not credible" for the Applicant to assert that their relationship was ongoing throughout 2016 and 2017 was one open to it.
5. The Minister submits that the Tribunal did not limit consideration to any requirement of physical cohabitation for a minimum period of time.[76] Instead, the Tribunal permissibly considered the nature of the physical "separation" between the Applicant and the Sponsor. The Minister submits that the Tribunal undertook this evaluation as part of its overall assessment of the evidence before it,[77] and it is not open to the Applicant to challenge these findings based on what the evidence might "arguably" suggest.
6. The Minister submits that the Tribunal otherwise completed the statutory task of making necessary findings as to the relationship by reference to reg 1.09A(3) of the Regulations.[78]

1. At the Hearing on 9 September 2025, the Respondent's counsel made oral submissions that expanded upon the written submissions.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[79]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[80] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[81]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[82] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[83] Different kinds of error may overlap.[84] The categories are not closed.[85]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[86] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[87] It has been described as an "undemanding" standard.[88]

1. The Partner visa (Temporary) (Subclass 820) allows the de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen live in Australia temporarily. The grant of this visa is the first step towards a permanent Partner visa (Subclass 801).
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
3. The criteria that the Applicant was required to satisfy for the grant of a Partner Subclass 820 visa are set out in Part 820 to Schedule 2 of the Regulations.

That the Tribunal failed to comply with s359AA of the Act, by failing to comply with its obligations under s359AA(1)(b)(i) - (iv), and in not doing so, had committed jurisdictional error.

1. Section 359AA of the Migration Act provides:

Section 359AA Information and invitation given orally by Tribunal while applicant appearing

1. If an applicant is appearing before the Tribunal because of an invitation under section 360:
   1. the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
   2. if the Tribunal does so - the Tribunal must:
      1. ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
      2. orally invite the applicant to comment on or respond to the information; and
      3. advise the applicant that he or she may seek additional time to comment on or respond to the information; and
      4. if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
2. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

1. Section 359A of the Migration provides:

Information and invitation given by Tribunal

1. Subject to subsection (2) and 3, the Tribunal must:

   1. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
   2. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
   3. invite the applicant to comment on it.

2. If the information or invitation is given to the applicant in writing, the information and invitation must be given:

   1. except where paragraph (b) applies--by one of the methods specified in section 379A; or
   2. if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

3. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

4. This section does not apply to information:

   1. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   2. that the applicant gave for the purpose of the application for review; or

   3. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   4. that is non - disclosable information.

5. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

1. The transcript of the Tribunal hearing records the following exchange:

Member: I'm just going to ask you...l'm just going to put some information to you. Okay? It's a formal process. Um, I'm just putting it to you so you can understand what's been said, um, to the Department and, uh, to do that...l just, as your representative would know. You are still there, madam Representative?

Representative: Yes Member.

Member: Yeah, great. I'm just going to use 359AA for this. Okay. So I have some information on the file that I'm going to tell you about and ask you some questions. So just listen to what I'm saying now and I'll then give you an opportunity to respond. Um, it's information that would, subject to your comments or response be the reason, or part of the reason to affirm the decision to refuse to grant the visa. Now this, none of this means I've made up my mind about this. Just because I'm putting this to you doesn't mean I've made up my mind. I'm just going to go away and consider everything you tell me. So I'm going to explain the information and the relevance. Now, you don't have to respond. If you want more time to respond, you can do so. Um. What I have in the departmental file is a message to the department withdrawing your partner's sponsorship. Okay. Uh, and that happened, um, around about August of 2018. Um. The gist of this information is that you used him to get your Australian visa, you scammed him for $10,000, and then you went off to Queensland and fabricated stories about, um, smacking her...smacking you, and being a womanizer and, uh, that you can be charming, but you're a user and you're a jealous, possessive girl and it wasn't what you say. So I haven't decided whether to even give any weight to this, but I just wanted to give you that opportunity to comment. Now take your time. Do you need more time to think about that?

Applicant: No member. I deny all these allegations. l...he knows a lot of people knows about our, he knows there are many times...that we, maybe, we may have...(unintelligible).... I, I wouldn't, you know, go through all this umm... his beating, his assaults, his abuse. And I'm not the type of person to use someone. *sobs* I was raised with my parents, you know, who are very loving and kind. That's why I'm a very forgiving...! would never use anyone, you know, I like contact a lot of people to define my character, my being. I would never... and then he, he even tried to, um, he even tried, um, to have a collector you know, email me. Um, collecting this amount of money, to answer to that. And he had no evidences whatsoever because when he apparently paid for that partner visa it was because we were in a relationship and we had plans together.

Member: Okay. Do you need any more time? I am not placing, um, at this stage a huge amount of weight on the evidence. I am going to have to go away and consider it, but it is not my primary concern at the moment. The truth is, my primary concern in relation to this is whether according to law, you meet you, you meet...the definition of a, of a, a relationship in that 12 months leading up to the Visa application. And as I've said to you several times, that's what I'm focusing on. Is there anything further you want to say to me about that period? To that end because I realize, um, this has all been denied about the violence, but I'm certainly taking it into account at some stage. But first I need to get to this business of whether you were in this relationship.

(Emphasis added)

1. The Tribunal's Decision provides:[89]

[The Applicant] did not request additional time to consider the information. She proceeded to comment and became somewhat distressed. She stated that she denied all the allegations. She had put up with a lot of violence from [the Sponsor], and she was not the type of person to use someone; her parents are loving and kind and as a person she herself is very forgiving and she would never invent this sort of thing. [The Sponsor] had sent a debt collector to pursue her for the money, but he had no evidence of indebtedness whatsoever; when he paid for the visa they were in a relationship. She said everyone knew about the relationship, even from the start, when they did video calls they would show people, and when he got a job, he showed her around the place, and then they went to the national park together, his mum and dad were very nice to her, and they did many things together.

(Emphasis added)

1. The Applicant contends that the Tribunal failed to ensure that it had discharged its obligations under s 359AA(1)(b)(i) of the Migration Act, namely to ensure, as far as is reasonably practicable, that the Applicant understood why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review.
2. While the notification requirement in s 424A (here, 359A) is mandatory,[90] such that non-compliance will often amount to jurisdictional error, s 424AA (here, 359AA) is facultative.[91] Section 424A (here, 359A) prescribes what must be done,[92] whereas s 424AA (here, 359AA) provides a (but not the only) means of satisfying the obligation.
3. For these reasons, a failure to comply with s 359AA of the Migration Act would not give rise to error or jurisdictional error. But a failure to comply with s 359AA in circumstances where there was "information" of the relevant type, would render the exception in s 359A(3) inapplicable, opening the door to the question of whether s 359A had been satisfied.
4. The first question is whether there is any information that the "Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review".
5. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs,[93] McHugh J stated:[94]

In addition, s 424A "is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision" under review. The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing. It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it.

(Emphasis added) (Citation omitted)

1. At least at the time of the Tribunal hearing, the Tribunal anticipated that the information that is highlighted in the transcript above might trigger the obligation in s 359A of the Migration Act. The relevant information which was referred to as "dob-in information" was:

(a) there was a message to the Department on the Department file concerning the Visa application around August 2018;

(b) the Applicant used the Sponsor to get an Australian Visa;

(c) the Applicant scammed the Sponsor for $10,000;

(d) the Applicant went to Queensland and fabricated stories about domestic violence; and

(e) the Applicant is a "user" [presumably of people] and is jealous and possessive.

1. The Tribunal's Decision makes it clear that it did not have regard to the "dob-in" information in making its decision. The decision provided:[95]

The Tribunal has considered the dob-in information put to the applicant under section 359AA, which is described earlier in these reasons; and has considered the applicant's response. In the hearing, Ms Monterde strongly denied the claims that she was "scamming" The Sponsor and that she left him as soon as she got her bridging visa. She claims she left him because he was repeatedly violent, and the relationship became untenable. The Tribunal has considered the allegations and the response and places no weight on the dob-in information.

(Emphasis added)

1. In my opinion, having reached the conclusion that it did, the obligation in s 359A of the Migration Act was not enlivened. The Tribunal did not reach the point where it determined "that the information would be the reason or part of the reason for affirming the decision". The fact that in purporting to give the "gist" of the "dob-in" information, the Tribunal might have anticipated making such a determination, does not alter this conclusion.
2. If I am wrong in my conclusion that s 359A of the Migration Act is not enlivened, I do not regard the Tribunal as having complied with s 359AA of the Migration Act in relation to the "dob-in" information. While the summary provided by the Tribunal, when compared with the content of the message itself, substantially complied with the obligation to provide "clear particulars" of dispositive information under s 359AA of the Migration Act, the Tribunal did not "ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review".
3. The Minister submitted in the alternative that any error in compliance with s 359AA would not be material and therefore not jurisdictional. However, given the role played by s 359AA as explained above, it seems to me that the critical question concerns s 359A and not s 359AA, namely whether any non-compliance with it was material.
4. In circumstances where I have found that the s 359A obligation did not arise, the question of whether a breach of that provision would have been a material one is essentially meaningless, and there is limited, if any, utility in exploring it. The Minister highlights a matter that might have diminished materiality of an error, namely that the "Applicant cogently responding to the substance of this allegation before, during and after the hearing".
5. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

That the Tribunal erred in law by misconstruing s 5CB(2)(c) of the Act. It treated the absence of cohabitation between the Applicant and her sponsor as determinative of the absence of a de facto relationship, and not whether the parties were "not living separately and apart on a permanent basis." In so doing, the Tribunal applied the wrong legal test, contrary to [SZOXP], and thereby committed jurisdictional error.

1. Section 5CB of the Migration Act provides:

De facto partners

1. For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

1. For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   1. they have a mutual commitment to a shared life to the exclusion of all others; and
   2. the relationship between them is genuine and continuing; and
   3. they:
      1. live together; or
      2. do not live separately and apart on a permanent basis; and
   4. they are not related by family (see subsection (4)).

2. 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.

Definition

1. For the purposes of paragraph (2)(d), 2 persons are related by family if:

   1. one is the child (including an adopted child) of the other; or

   2. one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

   3. they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

1. In SZOXP,[96] the Full Court[97] considered s 5CB(2)(c)(ii) of the Migration Act. The question the Court was required to determine was whether s 5CB(2)(c) impliedly required, at least in the case of persons who did not fall within s 5CB(2)(c)(i) and relied on s 5BC(2)(c)(ii), that the persons had previously lived together. The Court held that a construction which "does not require that the parties physically reside in the same premises prior to the application" was to be preferred.
2. In Lobo v Minister for Immigration and Multicultural and Indigenous Affairs,[98] French, Sackville and Hely JJ stated:

Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask. In such a case ... the Minister's decision would be a nullity. The Minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.

1. The Tribunal's Decision provides:[99]

A key matter not reasonably supported with evidence is that the applicants were living together, and not separately and apart, for any period before and between the two trips and were in a genuine and continuous relationship from the time they met until they parted.

The Tribunal concludes from the information before it that the parties formed some sort of relationship in 2016 and lived at The Sponsor's home during Ms Monterde's first visit to Australia. Given that the applicant did not give up her job in her home country, however, and that she returned to it afterwards on schedule and to her parents' home, and that it was then five months before she again visited The Sponsor, it is not credible for her to assert, as she does, that the relationship was ongoing throughout most of 2016 and 2017. Ms Monterde claims that during the gap between visits, The Sponsor was given a diagnosis of liver cancer and underwent treatment which delayed him applying for another visitor visa for her. The applicant also claimed at the hearing that the parties could not afford the application fee for a new visitor visa. Apart from the fact that there is no evidence to support the claim, this scenario strikes the Tribunal as puzzling. If the relationship were truly committed by that point, it is reasonable to consider that Ms Monterde would have wanted to be by the sponsor's side during such an illness; and that unless he was fully incapacitated, which is not claimed, the sponsor would have somehow sought a visa for the purpose.

(Emphasis added)

It is submitted that the Tribunal misconstrued Section 5CB(2)(c)(ii) of the Act, and placed importance on the Applicant living together with the Sponsor, "and not separately and apart" ([37] of its decision).

In SZOXP, the Full Court held that cohabitation was not required for a de facto relationship.

Although the Applicant was not physically living together with the Sponsor for a period of time from October 2016 to March 2017 ([27] - [28] of decision record), the evidence shows that they were not living separately and apart on a permanent basis.

1. However, there is a difference between cohabitation as an essential precondition to the application of s 5CB(2)(c)(ii), and cohabitation being a relevant consideration to be taken into account in relation to s 5CB(2)(c). The decision in SZOXP does not render cohabitation irrelevant for the purposes of s 5CB(2)(c)(ii). Accordingly, I reject the contention that the Tribunal erred by placing "importance on the Applicant living together with the Sponsor" in considering whether the Applicant came within s 5CB(2)(c)(ii).
2. Ground 2 is that the Tribunal erred in law by misconstruing s 5CB(2)(c) of the Migration Act by treating the absence of cohabitation between the Applicant and her Sponsor as determinative of the absence of a de facto relationship, contrary to SZOXP. Or to put in another way, the error contended for is that the Tribunal treated absence of cohabitation as involving a failure by the Applicant to satisfy an essential precondition to the satisfaction of s 5CB(2)(c)(ii).
3. For my part, I find it difficult to understand what the Tribunal was intending to convey by [37].[100] On the one hand is the reference to the "key matter" of "living together", a circumstance that is fundamental to s 5CB(2)(c)(i), and not irrelevant to 5CB(2)(c)(ii). Conversely, there is no necessary dichotomy between a conclusion that the Applicant and Sponsor had been "living together" at some point, and living "separately and apart on a permanent basis" as is suggested by the phrase "living together, and not separately and apart".
4. I think that what was most likely intended by the Tribunal in [37][101] was that the "and" was intended to be read disjunctively,[102] such that the key matter not supported by evidence was that the Applicant was either living together or not living separately and apart on a permanent basis. Such a formulation would have been a natural one when responding to the requirements in ss 5CB(2)(c)(i) and (ii) of the Migration Act. It is easy to understand how the Tribunal's expression might have become confused, when attempting to combine in one sentence two different requirements that are expressed, in the case of s 5CB(2)(c)(i) in positive terms, and in the case of s 5CB(2)(c)(ii) in negative terms.
5. While there is some superficial attraction to Ground 2, read fairly and in the context of the Tribunal's Decision as a whole, the error contended for does not "appear clearly"[103] from the decision. It is not for the court to rewrite[104] the Tribunal's Decision, but my preferred interpretation is consistent with a consideration of [37][105] read in context. To the extent that [37][106] might suggest misconstruction or misapplication of the test in s 5CB(2)(c)(ii), I consider that this is nothing more than "looseness in the language".[107]
6. The context of the Tribunal's Decision that causes me to reach this conclusion includes:

(a) [10] and [11] of the Tribunal's Decision contains a correct summary of the law:[108]

'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

In forming an opinion as to whether the parties are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects; the nature of the parties' household; and their commitment to each other. These requirements are specified in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

(b) the Tribunal's extensive consideration of:

(i) financial aspects of the relationship;[109]

(ii) social aspects of the relationship;[110] and

(iii) nature of the parties' commitment to one another;[111]

(c) the Tribunal's rejection of key claims made by the Applicant including the marriage proposal in March 2016,[112] the claim of forgiveness in February 2017[113] and the absence of support when the Sponsor was diagnosed with liver cancer;[114] and

(d) the Tribunal's conclusion at [40]:[115]

The Tribunal having carefully examined the evidence and considered the relationship aspect in the specified terms regarding the duration of the relationship; the length of time they have lived together degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term weights the considerations heavily against the [Applicant's] case.

1. For completeness, I note that the Tribunal performed the statutory task required by reg 1.09A(3) of the Regulations by making necessary findings.[116]
2. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error, the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $6,100 being less than the scale amount.[117]I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[118] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.[119]

I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 9 September, Order 1.

[31] CB 305 [11] and 312; He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 (He).

[38] CB 307 [17]. Between 8 July 2016 to 5 October 2016; and between 10 March 2016 to 24 July 2017.

[48] CB 308 [24], [27] and 310 [36].

[51] Affidavit of Russell Tien affirmed 21 August 2025, Annexure RT-01 at [13] to [14].

[52] Affidavit of Russell Tien affirmed 21 August 2025, Annexure RT-01 at [20] to [24].

[53] Affidavit of Russell Tien affirmed 21 August 2025, Annexure RT-01 at [16] to [17].

[54] Affidavit of Russell Tien affirmed 21 August 2025, Annexure RT-01 at [14], [15] and [24].

[56] Dau v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 413 (Dau).

[62] SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 per Kenny, McKerracher and Edelman JJ at [65].

[63] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 (Nathanson) per Gageler J at [47]; see also per Kiefel CJ, Keane and Gleeson JJ at [33].

[65] CB 309 [31]-[32]; s 359AA of the Migration Act.

[68] By utilising the discretionary mechanism in s 359AA of the Migration Act.

[70] Cf Dau per Chief Judge Alstergren at [60]-[72] and [88]-[92] (concerning the "First Breach") and contrast at [73]-[77] and [94]-[97] (concerning the "Second Breach").

[71] Applicant's Outline of Submissions filed 1 September 2025 at [18] to [26].

[73] Applicant's Outline of Submissions filed 1 September 2025 at [25].

[76] SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69; (2015) 231 FCR 1 per Kenny, McKerracher & Edelman JJ at [59]-[60], [65].

[78] He per Siopis, Kerr & Rangiah JJ at [47]-[52], [73]-[79].

[79] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[80] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[81] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[82] Plaintiff S157/2002.

[84] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[87] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[88] Nathanson per Kiefel CJ, Keane and Gleeson JJ at [33].

[90] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294.

[91] SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 per Tracey and Foster JJ at [73].

[92] BCU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 655 per Judge Kelly at [65].

[93] [2005] HCA 24; (2005) 228 CLR 294 at [56].

[94] Compare Poonia v Minister for Immigration & Border Protection [2016] FCCA 908 at [56] (Barnes J) approved on appeal in Poonia v Minister for Immigration & Border Protection [2016] FCA 1120.

[96] [2015] FCAFC 69; (2015) 231 FCR 1.

[97] Kenny, McKerracher and Edelman JJ.

[98] [2003] FCAFC 168; (2003) 132 FCR 93 at 106 [43]; cited with approval by Steward J in Le v Minister for Immigration and Citizenship [2025] HCASJ 33 (Le) at [21].

[102] Compare Onebev Pty Ltd v Encore Beverages Pty Ltd [2016] VSC 284 at [30].

[103] Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 at [39]; cited with approval by Steward J in Le at [23].

[107] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FLR 280 at p 287.

[116] He per Siopis, Kerr and Rangiah JJ at [47]-[52], [73]-[79].

[117] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[118] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[119] See r 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.