Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 888

Ground one: failure to consider relevant evidence

1. The applicants contend that the Tribunal failed to consider evidence which was relevant and material to the Tribunal's decision to affirm the delegate's decision and that this constituted jurisdictional error. The specific contentions are that:

(a) In finding at [30] that the financial aspects of the applicant and the sponsor's relationship were not indicative of a "married relationship", the Tribunal did not consider or make findings on the following evidence:

(i) the applicant's knowledge that the sponsor had worked as a concrete truck driver and ceased work three to four years before the hearing because of a workplace accident;

(ii) the sponsor's evidence that he tried to have the cars and motorcycle that were in his and the applicant's possession registered in both names but was unable to do so because the applicant did not have a driver's licence;

(iii) the sponsor's evidence about why he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank.

(b) In finding at [38] that the evidence as to the care and support of the second applicant was "cursory" the Tribunal did not consider the nature of the second applicant's relationship with the sponsor or that she regarded him as her father and addressed him as such, repeatedly referring to the sponsor as "dad" or "daddy" in her oral evidence;

(c) In making findings throughout its decision that there was insufficient evidence as to the circumstances of the applicants and the sponsor at the time of lodging the visa application in 2018, the Tribunal did not consider the evidence or explanation given by the sponsor about problems encountered with their two previous representatives and that one of them had been forced to cease trading.

1. It is not in contention that reg 1.15A(3) of the Regulations provides for mandatory factors which must be considered by the decision maker in considering whether persons are in a married relationship for the purposes of s 5F(2) of the Act. Each of the matters set out in reg 1.15A(3) are relevant considerations which the decision maker is bound to consider (He). In He, the Full Court of the Federal Court said, as to this task (at [74]-[82]):

(a) The Tribunal must apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances;

(b) The Tribunal is required to make findings upon each of the prescribed matters set out under each principal matter which requires that these questions be answered not merely thought about and answered so that the circumstances identified by answers are included in the evaluation of whether there is a married relationship;

(c) A finding must be made on each of the four principal matters;

(d) If the Tribunal's written statement does not set out a finding concerning any of the prescribed matters it may lead to an inference that the Tribunal member made no such finding as part of his or her mental process and, in that event, will not have complied with its obligations under reg 1.15A(2) to consider all of the circumstances of the relationship;

(e) The impressionistic and evaluative nature of the Tribunal's task must be taken into account when drawing implications from its reasons and that such reasons are not to be construed minutely and with an eye attuned to the perception of error.

1. It is also relevant to note, at the outset, that the Tribunal was required to determine the matter having regard to the time of application criteria only. The Tribunal, however, correctly observed that it must consider all of the relevant evidence, which may include events after the date of the application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application and that evidence of events after the visa application is relevant if it tends to logically show the existence or non-existence of facts relevant to the issue to be determined (at [11]).
2. In support of ground one, the applicants referred to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (2003); 197 ALR 389 at [23]- [24] per Gummow and Callinan JJ which it was submitted stood for the proposition that a misstatement of, and consequent failure to deal with a claim raised by an applicant constitutes jurisdictional error and that decision makers are required to consider substantial and clearly articulated arguments raised in support of an applicant's case (applicants' submissions ("AS") at [10]). The applicants' counsel also referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR ("WAEE") at [47] per French, Sackville and Hely JJ that where an issue is raised by the evidence on behalf of the applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunals' review of the delegate's decision, a failure to deal with it in in the published reasons may raise a strong inference that it has been overlooked.
3. Of course, in WAEE the Court also said that it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons (at [46]). Further, in addressing the criterion (relevant in that case) as to whether the applicant had a well-founded fear or persecution for a Convention reason, the Court said a distinction is to be drawn between the Tribunal failing to advert to evidence, which if accepted, might have led to a different finding of fact and a failure by the Tribunal to address a contention, which if accepted, might establish that the applicant had such a well-founded fear.
4. Specifically in relation to a partner visa application, the first respondent submitted (first respondent's submissions ("FRS") at [19] referring to Sun v Minister for Immigration and Border Protection [2017] FCA 1270 at [57]) that not everything put forward by an applicant becomes a mandatory relevant consideration such "the relevant considerations fall to be determined by reference to the provisions of s5F of the Act and reg 1.15A, not the pieces of evidence, or the claims that the applicant advance to the Tribunal".
5. For the reasons set out below, the Court is of the view that on a fair reading of the Tribunal's Decision as a whole, the Tribunal engaged in the task required of it and that any failure to refer in its reasons to the specific pieces of evidence particularised in ground one of the application does not constitute jurisdictional error.

1. Having considered the evidence as to the financial aspects of the relationship (at [26]-[29]), the Tribunal concluded at [30] as follows:

Overall, the evidence at and subsequent to the time of application does not indicate that the couple have combined their finances or their financial responsibilities to any material extent. The financial aspects of the relationship are not indicative of a 'married relationship', as defined in the Act.

1. The applicants' complaint is that in reaching that conclusion the Tribunal did not expressly refer (at [26]-[29]) to the evidence about the applicant's knowledge that the sponsor had worked as a concrete truck driver and had ceased work three to four years before the hearing because of a workplace accident; the sponsor's evidence that he tried to have the cars and motorcycle registered in both names but was unable to do so because the applicant did not have a driver's licence; and the sponsor's evidence about why he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank.
2. It is not in contention that the Tribunal did not expressly refer to those specific pieces of evidence in the manner particularised by the applicants in the application. Having regard to the principles set out above, the Court is of the view that the Tribunal was not required to do so and adopts the first respondent's submissions in this regard (FRS [21]-[24]). In short:

(a) As to the applicant's knowledge of the sponsor's previous employment and that he had ceased working in that employment three to four years prior to the hearing, the sponsor gave evidence at the hearing that he had received compensation from a workplace accident. His evidence was that he paid $20,000.00 [from that compensation] into the joint account (Transcript p. 33, lines 28-30). At [28](c), the Tribunal stated that the sponsor had paid $20,000.00 into the joint account. The Court agrees with the first respondent's submission (FRS [21]) that from this it can be reasonably inferred that the Tribunal was aware that the sponsor had ceased working due to a workplace accident from which he had received compensation but that the Tribunal had not considered it relevant to specifically refer to the applicant's knowledge that the applicant had ceased working three to four years prior to the hearing in its consideration of the financial aspects of the relationship. Further, that the applicant had knowledge of this event in the sponsor's background was not something which assumed significance in the applicants' written or oral submissions and so it was not evidence that was of such materiality or relevance to the consideration of the financial aspects of the relationship that it would require the Tribunal to expressly refer to the applicant's knowledge of the event;

(b) The Tribunal stated that, at the time of the application, the couple did not claim to have any joint assets or liabilities ([26]). The sponsor's evidence at the hearing that he had tried to transfer ownership of vehicles in his name into their joint names but was unable to do so because the applicant did not have a driver's licence does not put that finding in dispute. Accordingly, it was not necessary for the Tribunal to refer to that attempt in coming to the undisputed conclusion that the couple did not have joint assets or liabilities. Where the parties themselves did not claim to have any joint assets at the time of the application, it was not necessary for the Tribunal to descend into the detail of the attempt that the sponsor said he made to transfer the vehicles into joint names;

(c) As to the sponsor's preference for cash transactions, the Tribunal referred ([at 38(d)]) to the fact that the majority of the withdrawals from the joint account and the sponsor's bank account were cash withdrawals. The significance of that to the Tribunal's reasoning and findings was that the Tribunal observed that it was not possible for it to independently verify how the couple shared their financial responsibilities. There was no claim that at the time of the visa application the couple had shared their finances. That the sponsor's evidence was that he preferred to conduct transactions in cash and his preference that the couple keep their cash in a safe at home rather than in the bank was not material to the evidentiary task the Tribunal was engaging in, that is, in determining, whether the couple combined their finances or financial responsibilities.

1. In considering the nature of the household (including any joint responsibility for the care and support of children, the parties' living arrangement and any sharing of housework), the Tribunal concluded as follows (at [38]):

The couple claim to share responsibility for the care and support of the secondary applicant. However, again, the oral evidence provided was non-specific and unsupported by credible corroborating material. Among other things, there is insufficient documentary evidence before the Tribunal that substantiates the claim that the secondary applicant has lived with the couple. There are only two letters addressed to the secondary applicant at the Thorneside address. The tax invoices for the Thorneside address refer to "Adults 2 Children 0". There is no enrolment information relating to the secondary applicant's schooling, for example, referring to her residential address or her emergency contacts. There is evidence that was submitted to the department that the secondary applicant has a debit card with ANZ. However, there are no bank statements for that account referring to her addresses or indicating who has made deposits made to the account. In these circumstances, I find that, at the time of application, the couple did not share responsibility for the care and support of the applicant.

1. The applicants contend (AS [14]) that at [38] the Tribunal found that the evidence as to the care and support of the second applicant was cursory. The Tribunal did not make that finding at [38]. Instead, at [37] the Tribunal made the finding that the oral evidence of the applicant, the second applicant and the sponsor as to how the couple share responsibility for housework was cursory. This was clearly not a finding in relation to the care and support of the second applicant.
2. The applicants also contend (AS [14]) that the Tribunal did not consider the nature of the second applicant's relationship with the sponsor or that she regarded him as her father and addressed him as such. The applicants referred to the second applicant's oral evidence that she addressed the sponsor as "dad" or "daddy" (Transcript p. 30, lines 14-15; 24). The Court understands the applicants' submission to be that the Tribunal - on the basis of that evidence - should have inferred and made a finding of a father and daughter bond or attachment and that this would not otherwise have been present had the applicant and sponsor's relationship not been genuine (AS [14]). How a father and daughter relationship is necessarily to be inferred from the second applicant's evidence that she referred to the sponsor as "dad" or "daddy" is not clear. The Tribunal (at [38]) considered that the oral evidence was non-specific and unsupported by credible corroborating material. In any event, whether the applicant referred to the sponsor as "dad" or "daddy" was not relevant to the task the Tribunal was engaging in which was to consider whether there was any joint responsibility for care and support of children. The Tribunal gave reasons at [38] why on the evidence before it was not so satisfied. The Court agrees with the first respondent's submission (FRS [25]) that the second applicant's evidence that she referred to the sponsor as "dad" or "daddy" could not realistically overcome the Tribunal's concerns about the lack of documentary or corroborating evidence as to the couple's shared responsibility for the care and support of the second applicant.

The sponsor's evidence about problems encountered with the two previous representatives

1. The applicants contend that in making findings throughout its decision that there was insufficient evidence as to the circumstances of the applicants and the sponsor at the time of lodging the visa application in 2018, the Tribunal did not consider the evidence or explanation given by the sponsor about problems encountered with their two previous representatives (AS [15]). The sponsor's gave oral evidence that (Transcript p. 39, lines 41-45):

We had a lot of misguidance by the first two lawyers we had. The Australian government had actually stopped the second lawyer from trading. We struggled with the first two lawyers because we did not get the right information. Had we got the information - I tried my best to get everything the lawyers asked me to get.

1. The contention (AS [15]) is that the sponsor's evidence was that had they received the correct information from their representatives from the outset they would have approached the application process differently.
2. It is not in contention that the applicants and the sponsor were given (as outlined above) several opportunities to provide their evidence to both the Department and the Tribunal. The applicants' evidence and submissions to the Tribunal, in this regard, do not identify with any particularity the information or categories of information that they would have provided had they been advised to do so nor in what way they would have approached the application process differently. In fact, the applicants' solicitor told the Tribunal in written submissions that (CB 495):

The Applicant instructs that she and the Sponsor provided all of their evidence from this period to their former representatives, who advised that those materials had been submitted to the Department in support of their visa application. As such, the Applicant instructs that they have no additional evidence to the evidence already available within the Department's file that could be submitted

1. There was no suggestion that the previous representatives had not provided that evidence to the Department.
2. At the hearing, the applicants' solicitor told the Tribunal as to the gaps in the evidence that (Transcript p. 47, lines 4-9):

...I do understand that there's been - you've mentioned that there are gaps in time of application. I will (02:28:09) the applicant did consistently agree with - present evidence of this gap. The evidence was all provided (02:28:18) if anything's missing, but at this point - six/seven years later - they can't really find that evidence to resubmit

1. The applicants' solicitor agreed with the Tribunal that there were gaps in the evidence relevant to the time of application criterion. In fact, the evidence suggests that the applicant and the sponsor provided to their previous representatives what evidence they in fact had. It cannot be an error on the part of the Tribunal to find, as it did, that there were gaps in the evidence. It was not necessary for the Tribunal to make a specific finding as to the sponsor's evidence as to why there were gaps in the evidence particularly given that it is not, in any event, clear from the sponsor's evidence to the Tribunal or the submissions by the applicants' solicitors that these gaps were attributable to some fault on the part of the previous representatives.

1. For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.