The Tribunal erred in failing to identify and engage with the circumstances of the relationship by reference to the criteria in reg 1.15A
55 In view of the way in which the contentions in this appeal have evolved, I will consider, first, the relevant considerations case put by Ms Sun and then consider her later reliance on the ruling in Li. As can be seen from the summary of her contentions above, Ms Sun has identified four matters (see at [31] above) which she contends were relevant considerations that the Tribunal was bound to consider when it made its decision on her visa application. With respect to the matters in [31(a)] and [31(b)] above, she contends that they became relevant considerations because she provided evidence to the Tribunal about them with the result that they became circumstances of the relationship the Tribunal was bound to consider. Finally, she contends, it should be inferred from the Tribunal's statement of reasons that it did not consider any of these matters when it made its decision.
56 A convenient starting point for my consideration of these contentions is the distinction Jessup J drew in Li between the claims-based approach which applies to applicants for protection visas under the Refugee Convention reflected in decisions such as Htun, Dranichnikov and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, and applications for a spouse visa such as the present one, where the decision-maker is required to proceed according to prescribed statutory criteria. As Jessup J observed in Li, with the former applications, where the material which is submitted by an applicant puts forward an identifiable claim, that claim must be considered by the Tribunal rather than being treated "merely [as] pieces of evidence in support of a contention" (see Li at [22]). With respect to the latter category, as Jessup J also observed in Li: "the elements of an applicant's case … are the components of the definition of 'spouse' in reg 1.15A" (see Li at [23]). A similar distinction was drawn, albeit in a different context, by the Full Court in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; [2003] FCAFC 214. In that matter, in discussing a medical report prepared by a Dr Adam which was claimed to bear on the question whether the applicant was totally and permanently disabled, the Court said (at [32]):
The factors that a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the power to make that decision, not by the pieces of "evidence" submitted to the decision-maker by a person affected by the decision.
57 I respectfully agree with the reasoning of Jessup J in Li on this distinction between the critical elements requiring consideration being defined by the claims made by the applicant as against those elements being defined by an Act or Regulation. Furthermore, I respectfully agree with his Honour's characterisation of a matter such as the present one as falling into the latter category. Accordingly, I reject Ms Sun's contention that the materials she had placed before the Tribunal and the contentions that she made to it resulted in the matters in [31(a)] and [31(b)] becoming relevant considerations that the Tribunal was bound to consider. Instead, in this matter, as in Li, the relevant considerations fall to be determined by reference to the provisions of s 5F of the Act and reg 1.15A, not the pieces of evidence, or the claims, that Ms Sun advanced to the Tribunal. For the same reason, I consider Ms Sun's reliance upon decisions such as Klychev v Minister for Immigration and Border Protection [2016] FCA 1356 (Klychev) and Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 (Pokharel) is misplaced. It follows that it is not necessary to examine the Tribunal's statement of reasons to determine whether or not the Tribunal considered the matters in [31(a)] and [31(b)] above.
58 These conclusions do not, however, apply to the matters in [31(c)] and [31(d)] above. On their face, those matters are among the matters proscribed in reg 1.15A(3) and, as such, are relevant considerations to which the Tribunal had to have regard, or consider, in determining Ms Sun's application. This brings me to the "more fundamental" error which Jessup J identified in Li. The first question posed by Li is whether the Tribunal in this matter was required to approach its task by identifying the circumstances of the married relationship that were pertinent to the application before it by reference to the matters in reg 1.15A(3), and to make any necessary findings of fact for that purpose, so that it could then move to consider all those circumstances, as required by reg 1.15A(2). If the answer to that question is in the affirmative, the second question posed is whether the Tribunal's statement of reasons discloses that it approached its task in that manner.
59 In answering the first question, it is necessary to deal, first, with the Minister's submission that the decision in Li is clearly or plainly wrong (see Undershaft No 1 v The Commissioner of Taxation (2009) 175 FCR 150; [2009] FCA 41 at [86] per Lindgren J). In making that submission, the Minister contended that, contrary to the effect of the reasoning in Li, reg 1.15A does not require the Tribunal to identify each and every circumstance of the relationship and make findings of fact in respect of all of those circumstances. While I accept the latter proposition as accurate, I reject the premise of the former. In Li, Jessup J did not decide that reg 1.15A required that kind of approach to the circumstances of the relationship. Instead, his Honour made the compelling point, in my view, that, before the Tribunal could have proper regard to all the circumstances of the particular married relationship in question, as required by reg 1.15A(2), it had to identify what those circumstances were and to make any necessary findings of fact for that purpose. Only then could it comply with the "command" contained in reg 1.15A(2) (in Li, reg 1.15A(3)) to consider (in Li, "have regard to") "all the circumstances of [that] relationship" (in Li, "the case").
60 The word "all" in reg 1.15A(2) does not therefore require the Tribunal to identify "each and every" circumstance of the relationship, as the Minister has claimed. Instead, it requires the Tribunal to identify those circumstances that are germane to its task of determining whether the relationship in question is a married relationship, as defined in s 5F(2) of the Act. In other words, as was held in Khadgi, it requires the Tribunal to identify those circumstances of the married relationship raised by the application at hand that are of "central or fundamental importance" so that those circumstances can receive close attention. In identifying those circumstances, reg 1.15A(2) requires the Tribunal to consider the non-exhaustive list of matters set out in reg 1.15A(3). The non-exhaustive nature of that list also necessitates the Tribunal identifying whether the matter before it raises any other circumstances of the relationship that call for consideration. However, as the Court said in Khadgi, while the Tribunal will be required to turn its mind to each and every one of the matters prescribed in that list, it is not required to treat all of those matters as being of central or fundamental importance in every matter before it.
61 The direction in reg 1.15A(2) therefore essentially requires the Tribunal to identify all of the pertinent circumstances of the relationship that need to be considered in determining whether that relationship is a married relationship, by reference to the matters set out in reg 1.15A(3), and any other matters that are presented by the application before it. This identification process may require the Tribunal to make findings of fact so as to include, or exclude, particular matters as circumstances based upon the exigencies of the relationship in question. In Li, the intention to have a child was considered by Jessup J to be such a matter. It follows that I do not consider that Jessup J was plainly wrong in Li in holding that the Tribunal committed a "more fundamental" error by failing to approach its task in the manner described above. To the contrary, I respectfully agree with his Honour's reasoning that the "command" in reg 1.15A(2) (in Li, reg 1.15A(3)) dictates this approach.
62 The Minister's other submissions can be disposed of briefly. For the reasons stated above, I consider Li is quite consistent with Khadgi and the other decisions to which the Minister referred. Similarly, there is no inconsistency between Li and the requirements of s 368 of the Act, or the decision in Yusuf. As was explained in Yusuf, the equivalent section to s 368 required the Tribunal to prepare a written statement of reasons that, among other things, sets out its "finding on any material questions of fact". If Li is correct, which I consider it is, that means that the Tribunal's written statement of reasons in this matter should set out any findings of fact it made to identify the pertinent circumstances of Ms Sun's married relationship in accordance with the approach I have outlined above. Finally, I do not consider Li is relevantly distinguishable. My reasoning above demonstrates why I consider it applies in the circumstances of this matter.
63 For these reasons, I consider the first question posed by Li is to be answered in the affirmative. The next step is to consider whether the Tribunal's statement of reasons discloses that it approached its task in that manner.
64 From a fair reading of the Tribunal's statement of reasons, and one undertaken without "an eye keenly attuned to the perception of error", I do not consider that it did. My reasons for reaching this conclusion are as follows.
65 First, while the direction contained within reg 1.15A(2) is inferentially mentioned in the Tribunal's statement of reasons (at [6] set out at [10] above), it is only mentioned obliquely and in passing. By that I mean, apart from recording that "in forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship", there is no acknowledgement that this is expressed as a direction in reg 1.15A(2), and nor is there any indication of any attempt to identify which of the numerous matters prescribed by reg 1.15A(3), or which other matters not contained within that non-exhaustive list of matters, comprised the circumstances of Ms Sun's married relationship that were pertinent to, or of central or fundamental importance, and therefore required close consideration in determining her application. This is reinforced by the fact the word "matters" in the statement quoted above refers to the matters set out in s 5F(2)(a) to (d) of the Act (see at [4] above), not the matters listed in reg 1.15A(3). It necessarily follows that there is also no indication of any attempt to make any findings of fact that may have been necessary for the purposes of that identification process. Otherwise, the regulation that prescribes this approach, reg 1.15A(2), is not expressly mentioned anywhere in the Tribunal's statement of reasons and, as for reg 1.15A(3), it is mentioned once (at [6]) in the sentence following that quoted above as follows: "This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in reg 1.15A(3)." Read together, these two statements do not convey any appreciation of the direction in reg 1.15A(2), or the role of the matters set out in reg 1.15A(3) in complying with that direction.
66 Secondly, the only other mention of reg 1.15A in the Tribunal's statement of reasons is expressed in terms that indicate the Tribunal failed to appreciate that its task required it to identify the circumstances of Ms Sun's married relationship in the manner described above. That mention occurred at [15] of its statement of reasons (set out at [14(a)] above) where the Tribunal said it "acknowledges" that Ms Sun's ability to communicate with her husband was not a requirement of reg 1.15A. Regardless of whether the Tribunal was led into this statement by a submission made by Ms Sun's representative, in my view, there are at least two difficulties with it. First, it appears, without expressly mentioning reg 1.15A(3), to treat the matters set out in it as an exhaustive list which, as I have observed above, it plainly is not. Secondly and more importantly, it shows that the Tribunal did not appreciate that it was required by reg 1.15A(2) to consider all the pertinent circumstances of Ms Sun's married relationship. Even though it is not mentioned in the list of matters in reg 1.15A(3), plainly the perceived inability of a married couple to communicate is a circumstance of their relationship which would fall within the phrase "all the circumstances of the relationship" in reg 1.15A(2). This is in a similar category to the desire to have a child that was raised as a circumstances in Li, albeit that, in this case, it is a circumstance that would tend to counter against the existence of a married relationship. Nonetheless, if the Tribunal were approaching its task in the manner described above, it would be expected, when this matter was expressly raised, to ask itself the question whether Ms Sun's ability to communicate with her husband was a circumstance of their married relationship that fell to be considered as a circumstance within the direction in reg 1.15A(2). It would also be expected to make any necessary findings of fact required for the purposes of that consideration. The fact the Tribunal did neither of these things indicates, in my view, that it misconceived its task.
67 Thirdly, aside from the dearth of references to the requirements of reg 1.15A, and the absence of any sign that the Tribunal approached its task in the manner identified above, the critical expression "circumstances of the relationship" in reg 1.15A(2) is mentioned only twice in the Tribunal's statement of reasons. The first is the oblique and passing reference to it mentioned above (at [6] set out at [10] above). The second appears near the end of the Tribunal's statement of reasons where it makes another passing reference to that expression as follows: "However, having regard to the combination of the Tribunal's concerns outlined above, and having considered the entirety of the evidence and all the circumstances of the relationship, …" (at [27] set out at [22] above). As with the earlier reference to this expression, there is no attempt in this statement to identify which circumstances of the relationship the Tribunal had in mind (cf the similar statement in Li at [26] set out at [52] above).
68 In short, therefore, there is little, if any, indication in the Tribunal's statement of reasons that it determined Ms Sun's application according to the requirements in reg 1.15A(2) to consider all the circumstances of her married relationship, by reference to those matters set out in reg 1.15A(3) and any other such matters that were raised by the materials before it. It therefore did not make its determination as to whether a married relationship existed between Ms Sun and her husband as defined in s 5F(2) by reference to those prescribed circumstances.
69 It follows that, rather than failing to have regard to relevant considerations, the Tribunal committed the same fundamental error as occurred in Li, namely failing to approach its determination of Ms Sun's application in the manner required of it by reg 1.15A(2). In reaching this conclusion, I had regard to the fact that, in its statement of reasons, the Tribunal appears to have carefully considered the evidence Ms Sun placed before it and even to have carefully examined that evidence by reference, at least inferentially, to many of the matters proscribed in reg 1.15A(3). I have described those parts of the Tribunal's statement of reasons in some detail above (at [14]-[23] inclusive). However, despite this careful consideration, I remain unable to discern any indication that the Tribunal considered that evidence, or Ms Sun's application generally, by reference to all the circumstances of her married relationship as required by reg 1.15A(2). Finally, I should add that I have also had regard to the principles outlined above, including that Ms Sun bears the onus in this matter, and that an inference of this kind is not to be drawn lightly from the Tribunal's statement of reasons.