Tran v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Migration Review Tribunal ("the Tribunal") made on 30 May 2001, affirming a decision of the respondent, by his delegate, not to grant a Spouse (Provisional) (Class UF) visa, subclass 309, to the visa applicant, Thi Kim Oanh Truong ("the visa applicant"). The law to be applied is that which existed prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 2 The visa applicant, who was born on 15 January 1971, is a national of Vietnam, where she currently resides. On 29 July 1999, she applied for a Spouse (Provisional) (Class UF) subclass 309 visa ("the visa"). She was sponsored by Van Phai Tran ("the review applicant"). The review applicant was born in Vietnam on 8 October 1953 and is an Australian citizen. the applicable law 3 Before the visa could be granted, the visa applicant was required to satisfy all the criteria for the grant of the visa. These criteria are set out in Item 1220A of Schedule 1 and subclass 309 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). It is unnecessary to set out Item 1220A of Schedule 1, but it may be helpful to set out part of subclass 309 of Schedule 2 of the Regulations. This relevantly reads: 309.21 Criteria to be satisfied at time of application 309.211 (1) The applicant meets the requirements of subclause (2) or (3). (2) The applicant meets the requirements of this subclause if the applicant is the spouse of: (a) an Australian citizen; or (b) an Australian permanent resident; or (c) an eligible New Zealand citizen; or (d) a person who, on entry to Australia, will be the holder of a special category visa and intends to be usually resident in Australia. Note spouse includes a de facto spouse: see definition of spouse in regulation 1.03. (3) The applicant meets the requirements of this subclause if: (a) the applicant intends to marry: (i) an Australian citizen; or (ii) an Australian permanent resident; or (iii) an eligible New Zealand citizen; or (iv) a person who, on entry to Australia, will be the holder of a special category visa and intends to be usually resident in Australia; and (b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act. Note If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224. … 309.22 Criteria to be satisfied at time of decision 309.221 The applicant continues to satisfy the criterion in clause 309.211. … 4 Regulation 1.15A of the Regulations defines what is meant by the word "spouse" for the purposes of the Regulations. It relevantly provides: (1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: (a) in a marriage relationship, as described in sub-regulation (1A); or (b) in a de facto relationship, as described in sub-regulation (2). (1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis. … (3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: (aa) an Extended Eligibility (Temporary) (Class TK) visa; or (ab) a Family (Residence) (Class AO) visa; or (ac) a General (Residence) (Class AS) visa; or (ad) a Spouse (Migrant) (Class BC) visa; or (ae) a Spouse (Provisional) (Class UF) visa; the Minister must have regard to all of the circumstances of the relationship, including, in particular: (a) the financial aspects of the relationship, including: (i) any joint ownership of real estate or other major assets; and (ii) any joint liabilities; and (iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and (iv) whether one party to the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day-to-day household expenses; (b) the nature of the household, including: (i) any joint responsibility for care and support of children, if any; and (ii) the parties' living arrangements; and (iii) any sharing of responsibility for housework; (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and (iii) any basis on which the persons plan and undertake joint social activities; (d) the nature of the persons' commitment to each other, including: (i) the duration of the relationship; and (ii) the length of time during which the persons have lived together; and (iii) the degree of companionship and emotional support that the persons draw from each other; and (iv) whether the persons see the relationship as a long-term one. 5 These regulatory provisions give detailed expression to the general provisions of the Act concerning visas for non-citizens. Section 45(1) requires that a non-citizen who wants a visa must apply for a visa of a particular class. As will be seen, pursuant to the Act (ss 31, 40, 45(2) and (3) and 505), the Regulations make provision for classes and subclasses of visas for which application may be made, including the criteria that must be met and the circumstances that must exist, before an application can be successful. background facts 6 The respondent, by his delegate, refused the visa applicant's application on 19 April 2000. On 9 May 2000, the review applicant applied to the Tribunal for review of the delegate's decision. The Tribunal held a hearing on 22 May 2001, during which the review applicant gave evidence. As already noted, however, the review applicant was unsuccessful in his application to the Tribunal and instituted this review proceeding in this Court. 7 The Tribunal accepted that the visa applicant first met the review applicant on 21 June 1995, when the review applicant travelled to Vietnam from Australia to meet the visa applicant. The meeting had been arranged by the review applicant's mother, who had sent the review applicant the visa applicant's name and photograph, in the hope that they might marry. After spending several weeks together, they did in fact marry in Vietnam on 15 July 1995. After a brief honeymoon, the review applicant returned to Australia. 8 The visa applicant had not been married prior to her marriage to the review applicant. The review applicant had been in a de facto relationship from 1976 until 1982 when he fled Vietnam. There were three children of this relationship and, after migrating to Australia in 1983, he subsequently sponsored his then de facto wife and children to migrate to Australia. His relationship with his de facto wife ended in 1992. 9 The visa applicant first applied for migration to Australia as the review applicant's spouse on 10 October 1995 ("the first visa application"). In November 1996, the review applicant returned to Vietnam for one week to assist her in her visa interview. In May 1997, this first visa application was refused by a delegate of the respondent on the ground that the relationship was not genuine. 10 On 3 August 1997, the review applicant moved to the United States, where he stayed until March 1999. During this time the visa applicant heard little from the review applicant. The Tribunal recorded that: The review applicant stated that in 1997 when [the Department] refused the application he was devastated and decided that there was no point in continuing the relationship, as he had been told that there was little chance of overturning the decision. He said that he told the visa applicant to forget about him even though she did not want the marriage to end. He said that he went to the United States and lived with his parents, effectively cutting all ties with the visa applicant. He stated that he could not return permanently to Vietnam because he was formerly a soldier in the South Vietnamese Army and his future could not be guaranteed. He also said that he would not have been able to support himself financially. 11 The review applicant renewed contact with the visa applicant in March 1999 when he visited her in Vietnam and resumed a relationship with her. They lived together in Vietnam for one month before the review applicant returned to Australia. The visa applicant lodged a second application for a visa as the review applicant's spouse on 29 July 1999, stating at her interview that after the refusal of the first application the review applicant became depressed and did not want to continue with his sponsorship of her or pursue any review options. As a result contact between the couple ended … . The review applicant's mother convinced him that he should resume his relationship with the visa applicant and sponsor her to Australia. 12 Prior to the Tribunal hearing, the Tribunal wrote to the review applicant seeking additional information. In a letter dated 5 January 2001, the Tribunal wrote to the review applicant, requesting him to provide further information concerning: · Information about your current circumstances with your spouse. · Details of any financial arrangements you have made with your spouse, including details about the care of children. · Evidence of whether you represent yourselves as a married couple to friends and relatives. · Information about your commitment to your spouse, including any evidence of shared assets, information about the duration of your relationship, length of time you have lived together and the degree of companionship and emotional support that you share. 13 In a subsequent letter, which was dated 3 March 2001, the Tribunal said in part that: The Tribunal invites you to provide the following information · Evidence about the development of the relationship since 1995; · Evidence of the marriage in 1995, including whom [sic] attended the wedding; · Evidence of cohabitation with the visa applicant while you were in Vietnam; · Evidence of financial arrangements, nature of the household and social activities; · Evidence that the relationship is genuine and ongoing. 14 The Tribunal was informed by the review applicant's migration agent that, during his stay in the United States, the review applicant had worked in his father's restaurant and learnt to cook, with a view to operating his own business in Australia. The Tribunal was informed that, since April 1999, the couple had communicated regularly by telephone and letter, and that in December 2000 the review applicant had travelled to Vietnam where he spent almost four weeks with the visa applicant. The Tribunal had before it photographs, telephone accounts from December 1998 showing many calls to Vietnam, and letters written by the visa applicant in 1999. 15 The review applicant gave further evidence of these matters at the Tribunal hearing. In addition he produced evidence of two money transfers sent to the visa applicant in 1996 and stated that he sent money to her whenever he could with friends when they visited Vietnam. the tribunal's reasons for decision 16 The Tribunal found that the marriage between the visa applicant and the review applicant was authorised in Vietnam, and that the marriage was recognised in Australia. 17 As the Tribunal noted, however, subclause 309.211(2) required the visa applicant to be the "spouse" of an Australian citizen and, by virtue of the definition of "spouse" in reg 1.15A, the visa applicant was required to satisfy the decision-maker that she and the review applicant had "a mutual commitment to a shared life …", and that the relationship between them was "genuine and continuing". 18 After the referring to Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 (14 June 2000); Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court, 8 May 1990, unreported); and Bretag v Immigration Review Tribunal (Federal Court, 29 November 1991, unreported), the Tribunal stated: In relation to the question of whether the relationship between the visa applicant and the review applicant is genuine and continuing, the Tribunal has considered the oral evidence and the material on the files, including documents provided by the review applicant and the visa applicant. The Tribunal has had regard to the factors in subregulation 1.15A(3) but notes that the visa applicant is living overseas, so it is difficult for the couple to be assessed against these criteria. As far as financial aspects of the relationship are concerned, the Tribunal notes that there is evidence of two international money transfers from the review applicant in 1996 (about two years before the application under review), but there is no documentation to support the oral evidence that the review applicant has sent money to the visa applicant through friends. There is no evidence that the review applicant has made plans to share his income, assets and home with the visa applicant in Australia. There is no evidence that during periods of cohabitation they shared financial resources. On the question on the nature of the household and the social aspects of the relationship, the Tribunal takes into account the photographs taken during the visits by the review applicant in 1999 and 2000/2001. However there is no independent evidence from the visa applicant, family members, friends or other persons that would support the oral evidence from the review applicant. With regard to the commitment to each other, the Tribunal takes into consideration the visit by the review applicant to Vietnam in December 2000/January 2001 and his evidence that he cohabited with the visa applicant during the visit. The Tribunal also takes into account the telephone accounts submitted by the review applicant showing many calls by the review applicant to the visa applicant's number from December 1998 to the present, the letters produced to the Tribunal dated from 1995 and 1997 (before the application under review), four untranslated letters from the visa applicant dated May 1999 to October 1999, and two letters from the review applicant dated May 1999. The Tribunal takes into account the evidence by the review applicant that his mother asked him to reconcile with the visa applicant in 1999 after which he and the visa applicant resumed the marital relationship. The Tribunal takes into account that at the time of the application in July 1999 the parties had spent less than one month together (apart from the cohabitation of four days after the marriage in 1995) and at the time of decision they had spent a further three weeks together. Apart from the visits, the photographs and the telephone accounts there is little to support the claim of a mutual commitment. There is no material from the visa applicant, her parents or relatives, or the review applicant's parents either at the time of application or since that date concerning the commitment by the visa applicant to the review applicant. For these reasons the Tribunal finds that the review applicant and the visa applicant have not demonstrated a clear commitment to each other at the time of the application or at the time of decision. Having regard to all the factors referred to in subregulation 1.15A(3), and applying the test outlined in Dhillon and Nassouh, the Tribunal was unable to be satisfied that the visa applicant meets the criteria as the spouse of an Australian citizen within the meaning of subregulation 1.15A(1). Therefore the Tribunal finds that the visa applicant does not satisfy subclause 309.211(2). Subclause 309.211(3) relating to an intention to marry is not applicable. (Emphasis added.) Since the visa applicant did not satisfy either subclauses 309.211(2) or (3), she did not satisfy subclause 309.211(1) at the time of the application and cl 309.221 at the time of the decision. The Tribunal concluded that she did not meet the criteria for the grant of the visa, and affirmed the decision under review. the parties' submissions 19 The parties' written submissions are referred to and discussed in the following paragraphs. At the hearing of the application in this Court, counsel for the review applicant stated that he relied only on the grounds of review in his written submissions that were consistent with the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf"). No others were pressed. In particular, he submitted that the Tribunal's reasons for decision disclosed an error of law within the meaning of s 476(1)(e) of the Act, in that the Tribunal turned the existence of material "from the visa applicant, her parents or relatives, or the review applicant's parents … concerning the commitment by the visa applicant to the review applicant" into a requirement for the grant of the visa. The Tribunal effectively held, so the review applicant contended, that, in the absence of material from these sources as to commitment, then the visa application must fail. The absence of this material was "pivotal" and "critical", so the review applicant's counsel submitted, to the Tribunal's decision. In treating the material in this way, the Tribunal made, so counsel said, an error of law. 20 Since it was not entirely clear which of his written submissions the review applicant had determined not to press and his counsel agreed that, in the respondent's written submissions, the respondent had summarised the review applicant's submissions accurately, I propose to deal with each of them briefly under the headings used in the respondent's submissions. I note, however, that, save for the "error of law" submission referred to above, no other issue was the subject of argument at the hearing today. consideration Proper, genuine and realistic consideration 21 In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 ("Anthonypillai"), at [78], a Full Court of this Court rejected the use of the formula "proper, genuine and realistic consideration" to express the circumstances in which it can be said that the Tribunal had failed to "review" a decision. At [80], the Full Court said: Where an applicant for review in this Court contends that there has been a failure on the part of the Tribunal to perform its statutory duty, that submission must be shown to fall within an existing ground of review contained in s 476(1). … . It should be remembered that a constructive failure to exercise jurisdiction which does not fall within any of the grounds for review contained within s 476(1) may, nonetheless, give rise to a claim for relief in the High Court. It will not, however, form the basis for review of any decision in this Court. 22 In this case, the review applicant has not established that there was any failure on the Tribunal's part to "review" the decision in the sense referred to in Anthonypillai, at [78]. (I assume, for these purposes, that the approach taken in Anthonypillai is consistent with Yusuf and offers an additional test for reviewable error.) See also Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546, at [24] and W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387, at [37]-[40]. Obligation to make inquiries 23 Plainly enough, the Tribunal has power to make its own inquiries. This discretionary power is conferred by s 359 of the Act. In Anthonypillai, however, the Full Court agreed with the judge at first instance that s 427(1)(d) of the Act (concerning a similar power of the Refugee Review Tribunal upon review of a protection visa decision) did not impose any dutyon the Tribunal to make further inquiries. At first instance (2000) 62 ALD 136) in connection with s 427(1)(d), Merkel J observed (at [13]-[14]): The question of whether the [Refugee Review Tribunal] might have a duty, rather than just a power, to undertake inquiries has been considered in a number of cases. However, two recent cases discounted earlier authorities in favour of the existence of a duty to inquire on the basis that they were founded upon a view of the powers of review available under Pt 8 of the Act which has now been established to be wrong: see Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [18]-[23] per Ryan J and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29]-[32] per French J cf Li v Minister for Immigration and Multicultural Affairs (1999) 96 FCR 125 at [66] and [67] per Drummond J and Li v Minister for Immigration and Multicultural Affairs (No 2) [2000] FCA 172 at [8] per Drummond J. For the reasons given by Ryan J in Majeed and French J in Rahman it is unlikely that a mere failure to exercise a power to inquire under s 427(1)(d) will amount to a breach of any duty by the RRT. There may be some special or exceptional circumstances, such as a failure by the RRT to honour an undertaking to inquire, where a duty arises but the circumstances of the present case do not fall into that category. 24 Counsel for the review applicant did not contend in his written submissions that, for this purpose, there was any relevant difference between s 427(1)(d) (which, as noted, governs the Refugee Review Tribunal) and s 359 (which governs the Migration Review Tribunal). If there is a case in which a failure to inquire betokens reviewable error, the present is not one. Accordingly, I reject the submission that, in considering and assessing the material before it, the Tribunal was in breach of any obligation to make further inquiries prior to determining the application before it. Failure to request evidence 25 Generally, it is for an applicant to provide the decision-maker with whatever information or material he or she may have that tends to support his or her case: cf Abebe v The Commonwealth (1999) 197 CLR 510, at 576 per Gummow and Hayne JJ. The law imposes no obligation on the Tribunal to request the review applicant to meet a deficiency in the case that the applicant chooses to advance to the Tribunal. 26 Section 359A of the Act, which requires the Tribunal to give an applicant particulars of information that it considers would be the reason (or part of the reason) for affirming the decision under review, has no application where the basis for the Tribunal's decision is the absence of information or other material: see V340 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536, at [55] per Ryan J (concerning the Refugee Review Tribunal's equivalent obligation under s 424A(1)); Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, at [95] per Allsop J (with whom Heerey J agreed); Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, at [54] per Sackville J; and Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291, at 294-5 per Wilcox J. Section 360 submissions 27 The review applicant contended in written submissions that, in breach of the Act, the review applicant had been denied the opportunity to appear and give evidence on an issue that the Tribunal considered was critical to its decision. Pursuant to s 360(1) of the Act, the Tribunal must (save in the circumstances referred to in s 360(2)) invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (Section 425, to which the review applicant's contentions referred, makes equivalent provision in relation to the Refugee Review Tribunal.) The nature and effect of a statutory provision such as s 360(1) has been discussed on a number of occasions including in Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476, at [59]-[70], and at [94] per North J (concerning s 425); affirmed on appeal at (2001) 115 FCR 253 per French, Whitlam and Katz JJ (24 December 2001); Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541, at [45] per Black CJ, Hill and Weinberg JJ; Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671, at [11]-[14] and [21] per Lindgren, Tamberlin and Mansfield JJ. See also Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 at [35]-[41] per Mansfield J and Arif v Minister for Immigration and Multicultural Affairs [2002] FCA 1053 at [13]-[14] per Mansfield J. 28 In the present case, the Tribunal twice wrote to the review applicant, requesting further information that it considered might bear on its decision; and it extended an invitation to the review applicant to attend a hearing, and the review applicant attended such a hearing. The invitation was genuine and clear: cf Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188, at 195 per Goldberg J. There is no basis for the submission that the Tribunal breached any obligation that might arise under s 360 of the Act. Failure to comply with s 368(1) 29 In written submissions, the review applicant contended that the Tribunal's decision was affected by reviewable error because its statement of reasons failed to comply with s 368(1) of the Act. Given that counsel for the review applicant specifically abandoned any submission that was contrary to Yusuf, this submission was one that was, I think, plainly abandoned at the hearing. 30 In Yusuf, the High Court held, contrary to a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, that s 430(1)(c) of the Act merely obliged the Refugee Review Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision: see (2001) 206 CLR 323 at [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and [217] per Callinan J. For present purposes s 368(1) of the Act does not differ relevantly from s 430(1). I have reviewed the Tribunal's reasons carefully. There is no basis, in the present case, upon which one might conclude that the Tribunal failed to comply with the statutory obligation set out in s 368 of the Act. Substantial justice and the merits of the case 31 In written submissions, the review applicant contended that the decision of the Tribunal was affected by reviewable error since the Tribunal had failed to act according to the substantial justice and merits of the case. Since the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, this is not a tenable ground of review. Other general matters 32 In written submissions, the review applicant also contended that the Tribunal was obliged to identify correctly the material questions of fact, to consider rationally the evidence relating to them, and to come to rational conclusions on these questions. 33 I reject the submission that the Tribunal's reasons for decision in the present case indicated that it asked itself a wrong question, or that it ignored any information or material available to it, let alone any information or material that it was bound by law to take into account: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, at 39-40 per Mason J. To the extent that the review applicant relied on "unreasonableness" as a ground of review, it is enough to say that this ground is unavailable under Pt 8: see s 476(2)(b) of the Act. 34 As I have already stated, there is nothing in the Tribunal's reasons for decision that would support the conclusion that, in reaching its decision, the Tribunal had failed to identify the proper questions or ignored relevant considerations that it was bound in law to consider. 35 I note too that the review applicant also contended the Tribunal did not use, or alternatively misused, its advantage of seeing and hearing witnesses. No basis for this submission is shown, and it does not disclose reviewable error. Error of law 36 As already noted, counsel for the review applicant effectively addressed only one submission in oral argument today. In written submissions and at the hearing, he contended that the Tribunal erred in holding that material from the visa applicant and from relatives was "legislatively essential" for a grant of the visa, and that the absence of such material was inconsistent with the existence of a genuine relationship. I accept, however, that, as the respondent submitted, the review applicant's present submission involves a misconstruction of the Tribunal's reasons. On a fair reading of its reasons (see, e.g., Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-2), the Tribunal did not state that it could or would not decide in favour of the review applicant in the absence of evidence or other material from "the visa applicant, her parents or relatives, or the review applicant's parents". Having referred to the review applicant's visits to the visa applicant in Vietnam, and the photographs, letters, and telephone accounts that the review applicant had placed before the Tribunal, the Tribunal said "[a]part from the visits, the photographs and the telephone accounts there is little to support the claim of a mutual commitment". The Tribunal added by way, I think, of amplification, that "[t]here is no material from the visa applicant, her parents or relatives, or the review applicant's parents either at the time of the application or since that date concerning the commitment by the visa applicant to the review applicant". 37 Material from the visa applicant and the families and friends of either the visa applicant or the review applicant concerning their commitment to one another might well have been relevant. By virtue of reg 1.15A(3) of the Regulations, the respondent's delegate and, subsequently, the Tribunal was obliged to have regard to "all the circumstances of the relationship", including the matters particularised in reg 1.15A(3). The terms of reg 1.15A contemplate that such evidence or material from relatives and friends can be relevant: see, e.g., reg 1.15A(3)(c)(i) and (ii). 38 Earlier authorities on the application of reg 1.15A have emphasised the need for the Tribunal to take into account evidence or material provided by the parties other than the review applicant: see, for example, Minister for Immigration and Multicultural Affairs v Asif (2000) 60 ALD 145 per Drummond, North and Madgwick JJ. At [20], the Full Court said: When a Tribunal has to assess whether a class 820 visa applicant meets the primary criteria of being 'the spouse of an Australian citizen' and, in particular, whether it is satisfied, in terms of the definition of spouse in reg 1.15A(1)(b), that the two persons have a mutual commitment to a shared life as husband and wife and that the relationship between the two persons is genuine and continuing at both visa application date and date of decision, the credibility of the visa applicant, in asserting the existence of such a commitment and such a relationship, is of very considerable importance. But it is not necessarily decisive on either of these issues. Depending on the nature and extent of evidence coming from sources other than the applicant from, eg, his wife, relatives and acquaintances, a decision-maker adopting a proper approach to the visa entitlement claim may determine that the claim should succeed even though it rejects the evidence of the visa applicant himself as lacking credibility. (Emphasis added) 39 As the respondent submitted, the Tribunal's observations concerning the absence of evidence from the visa applicant and relatives should be understood in the context of the Regulations, especially reg 1.15A, and the relevant authorities. It is in this context that the Tribunal was entitled to comment on the absence of any evidence from the visa applicant or relatives concerning the issue of commitment. In the absence of evidence or material from these sources, the Tribunal was required to consider the matters referred to in reg 1.15A on the basis of the evidence or material substantially provided by the review applicant and thought by him to support the visa application. The absence of evidence or material from the visa applicant and relatives could only be described as "pivotal" or "critical" in the sense that, on the evidence before it, the Tribunal made a finding adverse to the review applicant on the commitment issue and, perhaps, the Tribunal might have made a different finding had it had further evidence from these other sources before it. It was, however, open to the Tribunal to conclude that the evidence and material before it did not satisfy it that the visa applicant was the "spouse" of the review applicant within the meaning of reg 1.15A. 40 For these reasons, I would dismiss the application for review with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.