Tuiketei v Minister for Immigration and Border Protection

The Tribunal 6 The essential issue before the Tribunal was whether the appellant and the sponsor were and had been de facto partners. On this score, the Tribunal found that the appellant's and the sponsor's evidence was evasive, contradictory and implausible. The Tribunal formed the view that the appellant had entered into an arrangement with the sponsor for the sole purpose of obtaining "a migration outcome" for the appellant. In this connection, the Tribunal found: 28. The Tribunal does not accept that the parties decided to live together as man and wife one week after the applicant's arrival or indeed that they have ever lived together as man and wife in a spousal relationship. The Tribunal has formed a view that the applicant entered into an arrangement with the sponsor - brokered by the applicant's friend "Peter" - for the sole purposes of obtaining a migration outcome for the applicant. The applicant himself claims that he wanted an Australian partner and to live with her in Australia. He had no interest in knowing anything more about the sponsor other than she was single and an Australian. He continues to show no interest in the sponsor, nor she in him. The applicant does not know, for example, what work the sponsor did in the past or when she worked last. They evidenced little interest or knowledge in each other's children or past lives. For example the sponsor told the Tribunal that the applicant had five children; however the applicant told the Tribunal he had four children. 7 The Tribunal noted the appellant's and sponsor's evidence that they did not share any of their financial matters with each other. For example, the appellant was not aware of the source of the sponsor's income (although he thought that she might be on a pension) and the sponsor made a strong point of telling the Tribunal that she had no interest in knowing how much the appellant earned or whether he provided financial support to his children in Fiji. The sponsor told the Tribunal that this was none of her business. 8 The Tribunal said it was clear that the appellant and the sponsor did not see their relationship as one that was financially interconnected in any way. The sponsor told the Tribunal that they each took care of their own financial matters. The appellant did not see himself connected to the sponsor's financial life and, in the Tribunal's view, went out of his way to emphasise that the reason he did not contribute to the payment of the mortgage was because he did not want to complicate the sponsor's estate in the event of her death. This strongly suggested to the Tribunal that the appellant and the sponsor did not see themselves in a spousal relationship, but in an arrangement from which it would be simple to disentangle if the relationship ended. Thus, the Tribunal was not satisfied that the financial aspects of the claimed relationship supported a finding that the appellant and the sponsor were in a genuine, ongoing and exclusive relationship that they considered to be long-term. 9 The Tribunal also considered the social aspects of the relationship, including whether the appellant or the sponsor represented themselves to others as being in a de facto relationship; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the appellant and the sponsor planned and undertook joint social activities. Their evidence was that they did not socialise very much, preferring to stay home together. The sponsor told the Tribunal that she did not care what her children thought. The appellant said that he had told his children that he was living in Australia with someone, but had not told them who the person was or provided other details. The Tribunal was not satisfied that the appellant and the sponsor represented themselves to others as a couple. 10 The Tribunal concluded: 42. Taking the evidence as a whole and having considered all aspects of the parties' relationship, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the relationship between them is genuine and continuing and the Tribunal is not satisfied that they live together. 43. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) or r.1.09A(3) are met at the time of application or at the time of this decision. As the parties were not in a de-facto relationship for 12 months prior to the lodgement of this application and there are no compelling and compassionate circumstances to grant the visa, the Tribunal is not satisfied that the parties meet the requirements of r.2.03A 44. Therefore the applicant does not meet cl.820.211 or cl.820.221. There is no evidence before the Tribunal that the parties meet any of the alternative criteria. 11 As the appellant did not satisfy the requirements for the visa he had applied for, the Tribunal affirmed the decision under review.

The Federal Circuit Court 12 It is necessary to descend to some detail concerning the proceeding for judicial review before the Federal Circuit Court. 13 On 18 April 2017, the appellant filed his application for judicial review. The application contained three grounds, expressed as follows: 1. Jurisdictional error and lacked jurisdiction - With reference to the paragraph 43 of the decision of the tribunal dated 29 March 2017, "On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) or r.1.09A(3) are met at the time of application or at the time of this decision. As the parties were not in a de-facto relationship for 12 months prior to the lodgement of this application and there are no compelling and compassionate circumstances to grant the visa, the Tribunal is not satisfied that the parties meet the requirements of r.2.03A." I have completely satisfied the requirement of s.5CB(2) or r.1.09A(3) at the time of the application and at the time of the decision. I am living with my de facto partner, sharing finances, mutually committed to each other and genuinely living as de facto partners. I have mentioned circumstances of meeting my partner and living arrangement, however, due to old age, short term memory loss my partner has not revealed all the information which the tribunal has asked from her. Therefore, I consider that the tribunal has made jurisdictional error and lacked jurisdiction in reaching its decision. 2. Error in interpretation of legislation - With reference to paragraph 44 of the decision of the tribunal dated 29 March 2017, "Therefore the applicant does not meet cl.820.211 or cl.820.221. There is no evidence before the Tribunal that the parties meet any of the alternative criteria." As per my application for partner visa to the department and my hearing at the tribunal, I completely meet and satisfied cl.820.211 and cl.820.221, however, the tribunal made error in interpretation of legislation in my case. 3. Natural Justice - With reference to the paragraph 41 of the decision of the tribunal dated 29 March 2017, "The Tribunal put to the parties that as they were applying as a de-facto couple, they were required to be in a relationship for 12 months prior to the date of application unless there were any compelling and/or compassionate circumstances for the grant of the visa. The parties have told the Tribunal that their relationship began in May 2014 and the application was lodged only 7 months later in December 2014. The applicant told the Tribunal that he helps the sponsor in her household work." During the tribunal hearing, the tribunal member asked me whether there are any compelling or compassionate circumstances for the grant of the visa, I told the member that the sponsor is 76 years old and suffering from different medical conditions. However, the tribunal has not mentioned those compelling and compassionate circumstances in their decision. According to natural justice the tribunal must consider medical conditions of my de facto partner as she is 76 years old lady and suffering from different medical conditions and totally dependent on me for her daily needs. 14 On 18 May 2017, programming orders were made by Registrar Morgan which provided for, amongst other things, the filing and service of any additional affidavit evidence and the filing and service of written legal submissions. The orders also fixed 22 September 2017 as the date of the final hearing of the application for judicial review before the primary judge. The appellant had already filed an affidavit dated 6 April 2017 when he filed his application for judicial review. He did not file any additional affidavit or any written legal submissions. 15 On 22 September 2017, the appellant attended the hearing before the primary judge. He was not legally represented. After taking appearances, the primary judge commenced by explaining to the appellant that the proceeding had been listed that day for final hearing to decide whether or not the Tribunal's decision was affected by relevant legal error. The primary judge explained what this meant. The primary judge asked the appellant whether he had understood the primary judge's explanation of the nature of the hearing. The appellant said that he had. The primary judge noted that the appellant had filed an affidavit and asked the appellant whether he wished the affidavit to be received in evidence. The appellant signified that he did. The primary judge treated the affidavit as having been read. At this point in the proceeding, the lawyer representing the Minister drew the primary judge's attention to the fact that the appellant had not read the Minister's written legal submissions. The Minister's lawyer informed his Honour that the submissions had been sent by email the previous Friday (the appellant having supplied an email address for the service of documents). When asked why he had not read the submissions, the appellant informed the primary judge that he had not checked his email account for two weeks. The primary judge informed the appellant that he would stand the matter down for 15 minutes to give the appellant an opportunity to read the submissions. The adjournment allowed was, as matters transpired, 24 minutes. When the hearing resumed, the appellant signified to the primary judge that he had read the submissions. The primary judge then invited the appellant to say what he wanted to say in answer to the Minister's submissions and in support of the grounds of his application. 16 In response, the appellant made the following submission: MR TUIKETEI: Your Honour, I just want to summarise .… all these thing. I'm not going to be particular on anything. Only thing I want to say here - that - regards to all the things that I've read through this submission, I can - just want to let you know, your Honour, that we still live together. We enjoy life together, and I see whatever is - been put here is .… by the law of the land, and I'm not very good in identify all these laws…. from where all these things - but we still live together and enjoy our life together, and I shall leave it to you, your Honour, to make a decision based on what you think it's right that's already in the - in this piece of paper, your Honour, and - yes. 17 The primary judge explained, again, the nature of the proceeding before him: HIS HONOUR: Yes, Mr Applicant. Just need to explain to you I can't revisit the merits. I can't make fresh findings of fact. I can only consider whether the tribunal exceeded its statutory powers or denied you procedural fairness. I can revisit a finding of fact if it's illogical, irrational or unreasonable. The tribunal gave reasons in support of its adverse findings. Those reasons, on their face, appear open. If there's an argument you want to develop further, either in support of the grounds in your application or as to why you say the tribunal acted unlawfully or unfairly, please put those submissions, but everything you've said so far is something that invites me to review the merits, and I have no power to do so. You understand what I've said? 18 The appellant signified that he had understood what the primary judge had said. The primary judge then asked the appellant whether he had anything further to say. The appellant responded: MR TUIKETEI: For - for that matter, your Honour, I know you - can I just - allow me some more time to be able to - to review all these thing and all the requirements that's needed in future. 19 The primary judge took this as an application for an adjournment, and questioned the appellant whether he had given earlier notice of that application. The appellant signified that he had not. The Minister opposed the adjournment. The primary judge informed the appellant that he did not propose to grant an adjournment. The primary judge proceeded to take the Minister's submissions, which were substantially in written form. The primary judge then asked the appellant whether he wished to say anything further as to why the Tribunal's decision was either unlawful or unfair. In response to this invitation, the appellant said: MR TUIKETEI: I find, your Honour, that probably, by the words that I use and - as well as my sponsor to use and - take into consideration that my sponsor is sort of old in age, and …. give some mixed information to the tribunal, and that's why I think …. the review tribunal's decision has to be relooked at. That's all, your Honour. 20 The primary judge then delivered the judgment against which this appeal is brought. His Honour rejected each of the three grounds of review.

The amended notice of appeal 21 The appellant's amended notice of appeal filed on 23 October 2017 contains seven grounds. Grounds 1, 4 and 7 have been abandoned. Grounds 2, 3, 5 and 6 are expressed as follows: (2) The Appellant was denied procedural fairness since he as a self-represented litigants was only given 15 Minutes to consider the Respondents' submissions before his oral submissions to the Court Particulars (a) The appellant only saw the Respondents submissions at the hearing. Although Mr. Moss for the Respondents told the Court that the Appellant was served the Respondents' submissions the previous Friday which would have been 15 September 2017. It was said to have been served by electronically which was although may have been acceptable between represented parties it was not acceptable to serve a self-represented litigant by email. See Page 4 of the FCC transcript. (b) The Appellant's request for adjournment was refused by the Court. See Page 6 of the FCC Transcript (3) The Appellant was denied procedural fairness since he was not properly explained in simple terms in a way he could understand what he was supposed to do Particulars (a) The Appellant was not explained in a simple way he could understand of the the issues involved in making out a case. (b) The Court failed to explain in plain terms to the appellant who was self-represented that he must identify why the Tribunal's decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error. (c) Procedural fairness required that the Court give the Appellant a reasonable opportunity to present evidence and to make submissions in support of his or her case. … (5) His Honour the primary Judge erred by not finding that the Tribunal misapprehended and misapplied s5CB of the Act Particulars The Tribunal imposed a more stringent requirement for the appellant and his partner to meet the test for de-facto relationship. (6) His Honour the primary Judge erred by not finding that the Tribunal misapprehended and misapplied the requirements to meet s. 5CB(2), Reg1.09A(3) and Reg 2.03A. Particulars s.5CB(2) (a) The Tribunal failed to comprehend unique relationship that exists between elderly couple; (b) That their relationship although genuine and continuing have different needs and expectations r. 1.09A (c) The Tribunal failed to understand the unique nature of the relationship and imposed its own cultural and social norms on the couple. (d) The Tribunal failed to consider the unique problems faced by the sponsor because of her age and further that couples can have different lifestyle, independent financial arrangements and still be partners. r2.09A (e) it was unreasonable not to find compelling and compassionate circumstances exist not to consider the need for companionship at an elderly age. (f) the difficulty faced by an elderly woman in having someone to support her and live with her. Not being able to understand the unique problems faced by elderly population especially elderly women.

Consideration of grounds 22 In submissions, the appellant framed Ground 2 as a complaint that the primary judge failed to provide procedural fairness because he denied the appellant's application for an adjournment. 23 In support of this ground, the appellant sought to adduce evidence directed to two factual matters. The first was whether the appellant had in fact received the Minister's submissions by email, as the primary judge had been told. The second was the appellant's explanation of why he wanted to seek an adjournment. 24 I did not allow the appellant to adduce evidence on the first matter. It could make no difference to the outcome of Ground 2 of the appeal that the appellant did not receive the Minister's submissions by email, if that be the fact. This is because, before the primary judge, the appellant did not dispute that the Minister's submissions had been sent to him by email. His explanation for not reading the Minister's submissions was that he had not looked at his email account for the previous two weeks, not that he had not received the submissions. Indeed, at the time of the hearing before the Federal Circuit Court, the appellant could not have known one way or the other whether he had received the Minister's submissions. He simply had not checked. 25 The Minister did not object to evidence having being received on the second matter, even though the only relevant consideration is the basis on which the appellant did, in fact, advance his application for an adjournment before the primary judge. 26 As to Ground 2 itself, the appellant submitted that, when faced with his application for an adjournment, the primary judge should have granted an adjournment on the basis that the appellant pay the Minister's costs thrown away, and then fix a further date for the appellant to file his written legal submissions. The appellant submitted that giving the appellant 15 minutes to read the Minister's submissions was no more than a token gesture without a useful outcome. The appellant submitted that, by adopting the course he did, the primary judge ignored the fact that the appellant was a self-represented litigant who had not, in fact, looked at the submissions beforehand. The appellant also submitted that, by adopting the course he did, the primary judge also ignored the fact that the appellant was losing an opportunity to "get his judicial review application properly considered" and that the prejudice to the Minister could have been addressed through a costs order. The appellant further submitted that he needed time to get advice from a lawyer or at least get sufficient time to try to understand what the Minister's submissions meant. 27 I reject these submissions. From the time when Registrar Morgan made the programming orders, the appellant had in excess of four months to get his house in order. The simple fact is that the appellant did nothing in response to the orders made on 18 May 2017 other than to turn up at the final hearing. When the primary judge was apprised of the fact that the appellant had not read the Minister's submissions, the primary judge afforded him an opportunity to do so. I do not accept that this opportunity was a token gesture. As I have also recorded, the opportunity afforded to the appellant was, in fact, greater than the 15 minutes originally contemplated by the primary judge. At the time, the appellant raised no objection as to the sufficiency of the time allowed for this purpose. Upon resumption of the hearing, he did not seek further time. He addressed the primary judge in the manner quoted at [16] above. It was only after being informed by the primary judge that the Federal Circuit Court could not make fresh findings of fact, and that the Tribunal's adverse findings appeared to be open on the Tribunal's reasons, that the appellant sought "some more time to be able to… review all these thing and all the requirements that's (sic) needed in future". 28 By refusing the adjournment at that time, the primary judge, plainly, did not overlook the fact that the appellant was self-represented or that, at the commencement of the hearing, the appellant had not read the Minister's submissions. The primary judge afforded the appellant an opportunity to read those submissions, which the appellant took up without raising any complaint about the opportunity that had been given. Further, it is not true to say that the appellant lost the opportunity to "get his judicial review application properly considered". As I have said, the appellant had in excess of four months to get his house in order. He was not denied the opportunity to have his judicial review application properly considered. He had ample time within which to get advice from a lawyer (if that is what he wanted). He apparently did not avail himself of that opportunity. He appears to have simply ignored the orders that had been made. He did not come to court seeking an adjournment on the basis that he needed advice from a lawyer, or that he needed more time, or for any other reason. He knew that the proceeding before the primary judge was the final hearing that had been fixed some months earlier. It was only at a stage in the hearing when the prospects of success of his application for judicial review must have seemed dim that the appellant sought "more time". I see no error in the exercise of the primary judge's discretion to refuse the adjournment that was sought. 29 In support of Ground 2, the appellant relied on the observations of the Full Court in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 at [53]. However, those observations were made in very different circumstances to those obtaining here. Further, the appellant's submission - that, had an adjournment been granted as sought, the Minister would have suffered no prejudice that could not be compensated by costs - misses the point. A proper foundation for adjourning the hearing at that time needed to be laid by the appellant. This was not done. Further, it is simply not enough to say that, if an adjournment had been granted, the Minister would be compensated by an order for costs. The administration of justice requires that cases be heard and dealt with as expeditiously as possible. The orderly and efficient conduct of the Federal Circuit Court's proceedings should not be dislocated without good reason. Plainly, the primary judge saw no good reason why, in the circumstances in which it was sought, the adjournment should be granted. As I have said, I see no error in the primary judge's exercise of discretion. 30 For these reasons, Ground 2 fails. 31 As to Ground 3, the appellant submitted that, when the primary judge explained the nature of the proceeding, his Honour should have referred to the grounds the appellant had put forward and informed him that they had not been properly formulated, including giving reasons for that view. The appellant submitted that the primary judge should also have explained the difference between the function of the Tribunal and the function of the Federal Circuit Court and the different powers exercised by the Tribunal and the Federal Circuit Court. The appellant submitted that the primary judge should also have explained the "wide powers" of the Tribunal in making findings of fact and how the appellant was required to satisfy the Federal Circuit Court that the Tribunal had made a jurisdictional error. The appellant submitted that all of this should have been explained "in a simple to understand… language". 32 I reject these submissions. The primary judge succinctly, clearly and accurately informed the appellant of the nature of the proceeding before the Federal Circuit Court. In the course of the hearing, the primary judge explained that the Federal Circuit Court could not make fresh findings of fact and could only review findings of fact on a limited basis, namely that the findings were illogical, irrational or unreasonable. The primary judge drew attention to the fact that the Tribunal had made adverse findings of fact, which must have been obvious to the appellant in any event because, in a general way, the appellant sought to address those adverse findings. The primary judge also explained to the appellant that, on the face of the Tribunal's reasons, these findings appeared to be open. All of this was explained to the appellant in simple terms. The primary judge took care to ask the appellant whether he had understood the explanations that had been given. On each occasion, the appellant signified that he had understood the explanation given. 33 I do not think that, in the circumstances of this case, it was incumbent on the primary judge to engage with the appellant in respect of the way in which he had framed his grounds in the application for judicial review. As expressed, these grounds were perfectly intelligible and did not require elucidation beyond anything that the appellant wanted to say in support of them. The appellant was invited on two occasions to advance any submissions he wanted to make. He did so. 34 The appeal based on Ground 3 fails. 35 The appellant submitted that Ground 5 of the appeal flows from the first ground in the appellant's application for judicial review before the Federal Circuit Court. His complaint is that the primary judge erred by not finding that the Tribunal misapprehended and misapplied s 5CB of the Migration Act 1958 (Cth) (the Act). In this connection, the appellant's case is that the Tribunal imposed a more stringent requirement for the appellant and the sponsor than s 5CB imposes for a de facto relationship. 36 Section 5CB describes when, for the purposes of the Act, a person is a de facto partner of another. It provides: De facto partners (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person. De facto relationship (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but: (a) they have a mutual commitment to a shared life to the exclusion of all others; and (b) the relationship between them is genuine and continuing; and (c) they: (i) live together; or (ii) do not live separately and apart on a permanent basis; and (d) they are not related by family (see subsection (4)). (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist. Definition (4) For the purposes of paragraph (2)(d), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect. 37 The appellant submitted that the Tribunal fell into error for two main reasons. The first reason was that, according to the appellant, the Tribunal made serious adverse credibility findings without considering the totality of the evidence about when the appellant and the sponsor met and how they came to live together. The second reason was that, according to the appellant, the Tribunal viewed the whole case through the prism of how a young couple would conduct their relationship rather than how two people aged 58 and 76, coming from different cultures, would conduct their relationship. I should say immediately that, on the face of the Tribunal's reasons, neither of these contentions is made out. 38 In support of this ground, the appellant's written submissions roved over the evidence before the Tribunal, seeking to explain what the appellant and sponsor had said and to portray this evidence in a light that would support the appellant's case that, as a matter of fact, he was the de facto partner of the sponsor for the purposes of the Act. In the course of this exercise, the appellant urged the view that, contrary to the Tribunal's finding, the appellant's and sponsor's evidence was given honestly and should be accepted. 39 This was nothing more than an attempt to engage the Court in its own fact-finding exercise. The primary judge was of the same view when the same argument was presented before him in relation to the first ground of the application for judicial review. At [22] of his reasons, the primary judge said: 22. Ground 1 in substance reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error by the Tribunal. The Tribunal made adverse credibility findings that were open before the Tribunal. No jurisdictional error is made out by ground 1. 40 No error has been shown in the primary judge's treatment of this ground of review. Ground 5 of the appeal fails accordingly. 41 Before leaving this ground I should record that counsel for the appellant sought to make much of the fact that, in some parts of its reasons, the Tribunal referred to the appellant and the sponsor as not living as man and wife ([28]) or as husband and wife ([42]). In another part of its reasons, the Tribunal said that it was not satisfied that the appellant's relationship was a spousal relationship ([30]). Counsel argued that this demonstrated that an incorrect legal standard had been applied because the Tribunal thought it was considering a marriage rather than a de facto relationship. I do not accept that submission. When one has regard to the whole of the Tribunal's reasons it is clear beyond reasonable argument that the Tribunal was directing its attention specifically to the requirements of s 5CB of the Act and, relatedly, reg 1.09A(3) of the Regulations. The Tribunal was under no misapprehension in this regard and did not apply an erroneous standard. 42 The appellant submitted that Ground 6 of the appeal also flows from the first ground of review in the appellant's application for judicial review before the Federal Circuit Court. His complaint is that the primary judge erred by not finding that the Tribunal misapprehended and misapplied the requirements of s 5CB(2) of the Act, and reg 1.09A(3) and reg 2.03A of the Regulations. There is a considerable degree of overlap between this ground and Ground 5. 43 Reg 1.09A provides: (1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist. Note 1: See regulation 2.03A for the prescribed criteria applicable to de facto partners. Note 2: The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist. (2) If the Minister is considering an application for: (a) a Partner (Migrant) (Class BC) visa; or (b) a Partner (Provisional) (Class UF) visa; or (c) a Partner (Residence) (Class BS) visa; or (d) a Partner (Temporary) (Class UK) visa; the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3). (3) The matters for subregulation (2) are: (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 person in the relationship owes any legal obligation in respect of the other; and (v) the basis of any sharing of day‑to‑day household expenses; and (b) the nature of the household, including: (i) any joint responsibility for the care and support of children; and (ii) the living arrangements of the persons; and (iii) any sharing of the responsibility for housework; and (c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and (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; and (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. (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3). 44 So far as relevant, reg 2.03A provides: (1) In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed. … (3) Subject to subregulations (4) and (5), if: (a) a person mentioned in subregulation (1) applies for: (i) a permanent visa; or (ii) a Business Skills (Provisional) (Class UR) visa; or (iia) a Business Skills (Provisional) (Class EB) visa; or (iii) a Student (Temporary) (Class TU) visa; or (iv) a Partner (Provisional) (Class UF) visa; or (v) a Partner (Temporary) (Class UK) visa; or (vi) a General Skilled Migration visa; and (b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa; the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application. ... 45 The appellant submitted that the Tribunal misapprehended and misapplied s 5CB(2) because it failed to comprehend (according to the appellant) the unique relationship that exists between an elderly couple which, while genuine and continuing, will have "different needs and expectations". 46 The appellant submitted that the Tribunal misapprehended and misapplied reg 1.09A(3) because it failed to consider all the circumstances of the appellant's and sponsor's relationship including, specifically, the sponsor's age and, once again, the different nature of the relationship between elderly people. The appellant submitted that the Tribunal never gave consideration to how that relationship would differ from a relationship between a young or middle-aged couple. The appellant also submitted that the "cross-cultural nature of the relationship" was not considered. Further, the appellant submitted that the Tribunal failed to consider the "memory problem" that the sponsor said she has. 47 The appellant submitted that the Tribunal misapprehended and misapplied reg 2.09A in that the Tribunal did not specifically refer to the compelling and compassionate circumstances in the case. The appellant submitted that the Tribunal only referred to the appellant saying that he helps the sponsor in her household work. 48 As a general submission, the appellant submitted that it was unreasonable for the Tribunal not to consider the need for companionship at an elderly age, and also the difficulty faced by an elderly woman and the need to have someone to support and live with her. The appellant submitted that the Tribunal did not understand "the unique problems faced by elderly population (sic) especially elderly women". 49 As this ground was advanced in submissions, it stands as no more than an attempt, once again, to have the Court engage in its own fact-finding exercise to assess for itself whether the appellant and the sponsor were in a de facto relationship within the meaning of the Act. 50 It is apparent on the face of the Tribunal's reasons that it was well aware of the appellant's and sponsor's respective ages, including I would add the age difference between them. I do not accept that, for example, the Tribunal did not have regard to the sponsor's age when considering the appellant's claims. 51 Similarly, I do not accept that, in considering the appellant's claims, the Tribunal ignored the fact that the appellant and the sponsor came from different cultural backgrounds. The Tribunal did not treat that difference as a reason to deny the existence of a de facto relationship between the appellant and the sponsor. 52 I accept the Minister's submission that the task before the Tribunal was to assess the material before it and not to engage in age or gender-related assumptions and stereotypes. The same, of course, is true of cultural assumptions and stereotypes. 53 The reasons reveal a careful consideration and evaluation by the Tribunal of the relationship that was claimed. The Tribunal's conclusion was that the evidence did not support the appellant's claims. I am not persuaded that the Tribunal failed to consider all the circumstances of the case that were presented for its consideration. 54 At this point it is necessary to deal further with two matters raised in submissions in relation to this ground. 55 The first is the allegation that the Tribunal failed to consider the sponsor's "memory problem". The point of this submission appears to be that because (according to the appellant) the sponsor had a "memory problem" related to her age, the Tribunal should have been forgiving of certain evidence given by her and should not have reached the adverse credit findings it did. 56 There is no evidence that the sponsor had a "memory problem" in the sense of some materially diminished mental capacity. Neither the sponsor nor the appellant told the Tribunal that the sponsor had a "memory problem" of this kind. The Tribunal, who had the advantage of observing the sponsor and questioning her, did not record that the sponsor had a "memory problem". The provenance of the argument that the sponsor had a "memory problem" appears to be this: in evidence, when challenged on clear contradictions in what she had said, or in offering an explanation of evidence which the Tribunal suggested was implausible, the sponsor, on occasion, said that she did not have a very good memory of the event, or that she had forgotten the event, or that she "probably forgot" the event. The submission that the sponsor had a "memory problem" is based on responses of this kind. As I have recorded, the Tribunal, in fact, found the sponsor's (and the appellant's) evidence to be evasive, contradictory and implausible. I see no occasion for this Court to interfere with the Tribunal's findings of fact in this regard, especially given the Tribunal's advantage of having seen and heard both the sponsor and the appellant. The allegation that the sponsor had a "memory problem" is not supported and is without merit. 57 The second matter is the allegation that the Tribunal failed to refer specifically to the "the compelling and compassionate circumstances in this case". The Tribunal recorded (at [41]) that when the question of compelling and compassionate circumstances was raised, the appellant informed the Tribunal that he helps the sponsor in her household work. This was the tenor of the evidence he gave. In submissions, the appellant argued that it was unreasonable for the Tribunal not to consider the sponsor's need for companionship at an elderly age. The appellant also appeared to submit that the Tribunal should have had regard to the fact that the sponsor was an elderly woman who needed someone to support and live with her. There is, in fact, no evidence that the sponsor needed or needs someone to support and live with her. The sponsor certainly did not say that she needed such assistance. 58 As to the sponsor's need for companionship, the Tribunal considered the social aspects of the claimed relationship when evaluating whether the appellant and the respondent were in a de facto relationship. It was for the appellant and the sponsor to bring forward any particular matters that they wanted the Tribunal to take into account. I see no occasion for this Court to interfere with the Tribunal's finding that there were no compelling and compassionate circumstances relevant for the purposes of reg 2.03A(3). 59 Ground 6 of the appeal fails.

Disposition 60 None of the grounds of the appeal has been made out. The appeal will be dismissed, with costs. The first respondent has sought a lump sum costs order pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) in the amount of $4,427.00. I have considered the evidence filed in support of that order. I am satisfied as to the reasonableness of the amount claimed. The appellant, through his counsel, has raised no objection to the amount claimed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.