The appeal
40 The appellant's notice of appeal to this Court contains one ground, namely:
The Court below erred when it upheld the Tribunal's decision disallowing evidence of domestic violence because it had not first found a spousal relationship to have existed but by doing so shut its mind to the question of how might there be domestic violence in the absence of a spousal relationship.
41 This ground seems to assert that the Tribunal had failed to consider the appellant's allegations of domestic (or family) violence. However, the appellant, who was legally represented, instead submitted that the Tribunal was required to take into account the circumstances surrounding the family violence, but failed to do so. Those circumstances are said to include the reasons for the arguments between the appellant and Ms W, such as her demands for money, the behaviour of her children and the interference of her former boyfriend. The appellant argues that such circumstances tended to show that the relationship was a genuine spousal relationship. The appellant submits that by taking the approach that it was unnecessary to consider his claim that the family violence exception applied, the Tribunal "excluded this corpus of evidence" from its consideration.
42 In order to determine this ground, it is necessary to understand exactly what findings the Tribunal made. The Tribunal made a specific finding that it was "not satisfied that at the time of decision the parties were in a spousal relationship." By "spousal relationship", the Tribunal meant "married relationship". The Tribunal did not explicitly find that it was satisfied that the appellant and Ms W were never in a married relationship. However, the Minister submits that a proper construction of the reasons reveals that this is precisely what the Tribunal decided.
43 The Tribunal concluded in the penultimate paragraph of its reasons that any family violence "must have occurred when the married relationship was still in existence", a reference to the requirement of reg 1.23(12) of the Regulations. The Tribunal said that as it was not satisfied that the appellant "was the spouse of the sponsoring partner", it had not considered the allegations of family violence for the purposes of cl 801.221(6) of Sch 2. It is evident that the Tribunal must not have been satisfied that the appellant and Ms W were in a "married relationship" within the meaning of that expression in s 5F(2) of the Act and reg 1.15A of the Regulations at the times when the family violence was alleged to have occurred. The Tribunal concluded that as a married relationship did not exist at those times, reg 1.23(12) could not be satisfied. That conclusion, together with the Tribunal's earlier analysis of the relationship, including pointing to the absence of any commitment by the appellant to Ms W's children, her continuing relationship with her former boyfriend and the maintenance of homes in different cities, is consistent with the Tribunal deciding that the appellant and Ms W had never been in a married relationship.
44 It may be accepted that the circumstances surrounding allegations of the family violence were capable of influencing the question of whether the appellant and Ms W were ever in a married relationship. The difficulty for the appellant is that the Tribunal's reasons demonstrate that it did consider both the allegations of family violence and the surrounding circumstances. The Tribunal summarised the appellant's evidence of family violence and the circumstances surrounding that violence.
45 In conducting its analysis of whether the appellant and Ms W were in a married relationship under the heading "Consideration of Claims and Evidence", the Tribunal was not required to refer to each piece of evidence about the circumstances surrounding the family violence, or even any of those pieces of evidence: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] (Gleeson CJ), [33] (Gaudron J) and [68] (McHugh, Gummow and Hayne JJ). It was open to the Tribunal to take the view that such evidence carried no weight in deciding whether there was a married relationship. Nevertheless, in its consideration of whether there was a married relationship, the Tribunal was influenced, among other things, by the appellant's lack of commitment to Ms W's children, the ongoing relationship between Ms W and her former boyfriend and Ms W's commitment being based only on the appellant's financial support. Those matters formed part of the factual matrix surrounding the allegations of family violence. Therefore, the appellant's submission that the Tribunal had failed to consider the circumstances surrounding the allegations of family violence must be rejected.
46 The appellant also submits that the Tribunal erred by failing to consider the report of a psychiatrist that he had submitted to the Tribunal. That report recited the appellant's claims concerning the development of his relationship with Ms W and his allegations that he had become the victim of psychological and physical abuse. The psychiatrist expressed the opinion that the appellant was suffering from a psychiatric condition, developed against the background of ongoing psychosocial stressors mainly related to his employment. The psychiatrist also noted the appellant's history of trauma "secondary to reported domestic violence". The Tribunal did not refer to the psychiatrist's report in its reasons.
47 A Tribunal may commit jurisdictional error if it fails to take into account a relevant, cogent and important piece of evidence: see Minister for Immigration and Citizenship v SZKRT (2013) 212 FCR 99 at [111]-[112] (Robertson J); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [50] (Katzmann, Griffiths and Wigney JJ), Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). The psychiatrist's report does not answer this description. The report did no more than rehearse the account given by the appellant to the Tribunal. The psychiatrist did not express any opinion as to whether the alleged family violence had or had not occurred. The report could not have offered any assistance to the Tribunal in deciding whether the appellant and Ms W were in a married relationship. There is no jurisdictional error in the Tribunal's failure to refer to or consider the psychiatrist report.
48 The Tribunal embarked on a review of the delegate's decision to refuse the grant of a Partner Temporary visa and affirmed that decision. However, the Tribunal's reasons consistently referred to cl 801.221(2), a provision that is applicable to a Partner Residence visa, not a Partner Temporary visa. The provisions to which the Tribunal ought to have referred are cl 820.211(2) and cl 820.221(1).
49 While it is apparent that the Tribunal erred by referring to the wrong clause, there are two possible ways of construing that error. The first is that it was a mere clerical error - such an error would not be jurisdictional error. The second is that the Tribunal applied the wrong legislative provision - that would be jurisdictional error.
50 However, it is unnecessary to decide whether the Tribunal's error was jurisdictional or non-jurisdictional. That is because the error did not affect the outcome of the application before the Tribunal. The provisions of cl 820.211(2), 820.221(1) and 801.221(2) each contain a requirement that the applicant be the "spouse" of the sponsoring partner. The Tribunal decided that the applicant was never the "spouse" of Ms W as they were never in a "married relationship", so the outcome of the application would have been the same even if the Tribunal applied the correct provisions, cl 820.211(2) and cl 820.221(1).
51 The grant of a constitutional writ is discretionary. A Court will not exercise its discretion in favour of granting constitutional writs where the Tribunal's jurisdictional error made no difference to the outcome of the application under review by the Tribunal: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [80] (Gaudron and Gummow JJ), [104] (McHugh J), [133] (Kirby J), [211] (Callinan J); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [87] (Kirby J), [91] (Hayne J). Relief should be refused because, even if the Tribunal applied the incorrect criteria, its factual findings make it inevitable that the decision of the delegate to refuse a Partner Temporary visa would have been affirmed.
52 There is one other issue which should be mentioned. The visa application form required the applicant to apply for both a Partner Temporary visa and a Partner Residence visa, even though the latter could not be granted for at least two years after the Partner Temporary visa application was made. Presumably, if the delegate had granted the Partner Temporary visa, the application for a Partner Residence visa would not have been decided for at least two years. However, when the delegate refused the Partner Temporary visa, it necessarily meant that the application for a Partner Residence visa had to be rejected because a requirement of cl 801.211(2) is that the applicant be the holder of a Partner Temporary visa.
53 Although the delegate refused both the Partner Temporary visa and the Partner Residence visa, the Migration Review Tribunal's application form allowed the applicant to specify only one of the two decisions as being for review by the Tribunal. If the Court had decided that the Tribunal's decision to affirm the decision not to grant the appellant a Partner Temporary visa should be quashed, there might have been a problem posed by the fact that the decision to refuse the Partner Residence visa remained in force. No argument was addressed to the Court on this issue, but we point it out so that consideration might be given as to whether the application form to the Administrative Appeals Tribunal (which is not materially different to the application form to the Migration Review Tribunal) requires amendment.
54 For the reasons we have given, the appeal will be dismissed with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan, Perram and Rangiah.