The Appeal
35 As noted above, the appellant's notice of appeal contains a single ground:
1. The Federal Circuit Court erred in finding that the second respondent lawfully considered,
a. evidence in a statutory declaration of the sister of the appellant's spouse that;
i. The appellant and her spouse share a room at her home.
b. evidence given by the appellant at hearing to the effect that she and her husband slept in the same room and, by inference, in the same bed.
c. evidence in a statutory declaration of Khoa Dang Nguyen that the applicant [sic] and her spouse were "always smiling and laughing when they are with each other".
36 The appellant's overarching challenge to the primary judge's reasoning is his Honour's finding that the Tribunal engaged in an active intellectual engagement with the evidence before it. The appellant submits that material evidence before the Tribunal was not properly evaluated and as such, the primary judge erred by upholding its decision.
37 The appellant referred to the decision of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, highlighting the following propositions she said arose from [24], [25] and [27]:
(a) A decision-maker must read, identify, understand and evaluate representations. That is, they must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.
(b) From that point, the decision maker may accord whatever weight or persuasive quality is thought appropriate. That is a matter or the decision maker.
(c) The decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims".
(d) What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations.
(e) None of the preceding analysis detracts from, or is inconsistent with, established principle that jurisdictional error may result if, for example, review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials.
38 The appellant observed that the majority in Plaintiff M1/2021 noted at [26] that, labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context, that being the limited role of a Court reviewing the exercise of an administrative decision. The appellant submitted that the majority did not overrule the requirement of a decision maker to engage in an active intellectual process directed towards relevant evidence or submissions. It merely reaffirmed that the place of such an enquiry was in the context of judicial review, and not merits review.
39 The appellant submitted that there was nothing in Plaintiff M1/2021 which cast doubt on the following statement of Murphy J in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [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.
40 Counsel for the appellant, Mr Karp, took the Court to the evidence of Thi Thanh Huong Nguyen, the sponsor's sister and employer of the appellant, and Khoa Dang Trung Nguyen, a friend of the parties and whose wife worked at the nail salon with the parties, and to the transcript of the appellant's oral evidence.
41 The appellant submits that the Tribunal failed to give that evidence the necessary genuine evaluation. The appellant also submits that the Tribunal failed to turn its mind to the significance of this evidence, in particular the evidence as to the sharing of a room and a bed, to the question of the nature of the parties' relationship, and the primary judge erred in finding the evidence lacked materiality.
42 The respondent submits that the Tribunal did not overlook this evidence and gave it some weight favourable to the appellant. The respondent submits that it can be seen from the Tribunal's detailed reasons that the Tribunal did properly identify, understand and consider the evidence. It also submits that the primary judge was correct in finding that the evidence was insufficiently material. As such, the primary judge was correct in its finding of a lack of jurisdictional error.
43 The respondent submits that the Tribunal may fall into jurisdictional error if there is a failure to consider a piece of evidence where it is demonstrated that the evidence was:
(a) overlooked; and
(b) of some import when regard is had to its cogency and potential relevance to the Tribunal's reasons. Per Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [54]:
…[T]he Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction.
44 The respondent submitted that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court (per French, Sackville and Hely JJ) held at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue 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 at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
45 In oral submissions counsel for the respondent also referred to Plaintiff M1/2021, noting that Kiefel CJ, Keane, Gordon and Steward JJ held at [24] that a decision-maker, having considered representations, can "sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker". What must be shown to demonstrate compliance with the statutory power in issue "will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations": Plaintiff M1/2021 at [25].
46 Counsel for the respondent stated that the relevant representations, contained in the statutory declarations of the sponsor's sister and the appellant's friend, were brief and of a general nature. As such, the Tribunal was not required to show any further engagement with that material than it did in its written reasons.