Ground of appeal 1 - the criteria in ss 10A(1)(c) and (d) and the requirements of reg 1.04AAAA(1)(a)
23 For the purposes of this ground of appeal, Mr Williams relied heavily on the Full Court judgment in He v Minister of Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 (Siopis, Kerr and Rangiah JJ). In He, the Court was concerned with the definition of the word "spouse" and, in particular, the constituent phrase "married relationship" in s 5F of the Migration Act 1958 (Cth). That definition contained, in s 5F(3), a provision similar to s 10A(3) of the SIS Act above, which allowed the regulations to specify matters to be taken into account in determining whether the relationship existed. Subregulation (2) of the regulation in issue in He (reg 1.15A of the Migration Regulations 1994 (Cth)) required that the relevant Minister "must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)". Subregulation (3) then set out four sets of matters (15 in all), each of which related to a different feature of a married relationship.
24 In He, the Court considered the construction and operation of reg 1.15A at some length. Relevant to this matter, it held, at [58], that reg 1.15A(2) above "… requires the Tribunal to 'identify' the pertinent or relevant circumstances of the relationship". It added that: "It is necessary to identify what the relevant circumstances of the relationship are in order to consider those circumstances by applying an active intellectual process and giving proper, genuine and realistic consideration to them." One of the main issues in He was whether reg 1.15A(2) required the Tribunal to make a finding as to the existence or otherwise of "every potentially relevant circumstance" (emphasis in original), or only required the Tribunal to make "any necessary findings of fact" (emphasis in original) (see He at [71]). The Court concluded it was the latter (see He at [71]).
25 Then, by reference to the judgment of Jessup J in Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354, the Court proceeded to explain the content of that requirement as follows (at [72]):
In Li, Jessup J held that the asserted intention of the visa applicant and her husband to have a child was a relevant circumstance of the relationship, and the requirement on the Tribunal to "have regard to" that circumstance meant that the Tribunal was required to make a finding as to whether it accepted their evidence. The Tribunal was required to decide whether it was satisfied that their asserted intention existed as a fact (or dismiss any such intention as inconsequential) in order to include it or exclude it from the "circumstances" to which the Tribunal would then have regard.
26 In the next paragraph, the Court highlighted the "prescriptive" requirements of reg 1.15A(3) as follows (at [73]):
Regulation 1.15A(3) itself identifies circumstances of the relationship that the Tribunal must consider. It is prescriptive. It deems each of the prescribed circumstances, or matters, to be relevant to the question of whether there is a married relationship. The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances.
27 Earlier in its reasons, the Court had made some similar observations about the application of reg 1.15A(3) as follows (at [59]):
However, reg 1.15A(3) itself identifies each of the circumstances set out in the provision as being relevant to the decision and requires each of those circumstances to be considered. The evidence and other material before the Tribunal may also reveal other relevant circumstances of the relationship that do not fall within reg 1.15A(3), and which instead fall to be considered under [reg] 1.15A(2).
(Emphasis in original)
28 In assessing whether or not a decision-maker's reasons revealed the requisite "active intellectual process and … proper, genuine and realistic consideration" to the relevant circumstances, the Court referred to the apposite authorities and made the following observations (at [79]):
… The making of a decision involves a mental process. The written statement functions as a record of the Tribunal's reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to "consider" all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).
29 Based upon these passages from He, Mr Williams submitted that:
15.1 The Tribunal must 'identify' the pertinent or relevant circumstances of the relationship. [He at [58]] This includes an identification of all of the relevant circumstances that the evidence and other material reveal, beyond those that are prescribed in the Regulations. [He at [59]]
15.2 The Tribunal is "required to decide whether it was satisfied that [the relevant matters advanced by the Appellant] existed as a fact (or dismiss [them] as inconsequential) in order to include it or exclude it from the 'circumstances' to which the Tribunal would then have regard". [He at [72]]
15.3 After identifying all of the relevant circumstances, the Tribunal was then required to apply an "active intellectual process and giving proper, genuine and realistic consideration to them." [He at [58]]
15.4 The failure of the Tribunal to provide findings with respect to each of those relevant circumstances of the relationship may lead to an inference that the Tribunal made no such finding as part of his or her mental process when making the decision. [He at [78]-[79]]
30 Consequently, Mr Williams claimed that the Tribunal had committed an error of law by failing to make findings on, or have any regard to, the written submissions he made to it concerning the level of personal care, financial and domestic support he provided to his son as described in ss 10A(1)(c) and (d) of the SIS Act. Similarly, he submitted the Tribunal failed to consider his submission that the "facts concerning the ownership, use and acquisition of property demonstrate a deep interdependency" as described in the matters listed in reg 1.04AAAA(1)(a). As for the primary judge, Mr Williams submitted his Honour had erred by holding that this question raised a question of fact and not one of law. This was an error, so he submitted, because:
The question raised (in substance) whether the Tribunal complied with the command in reg 1.04AAAA(1)(a) of the SIS Regulations to take into account "all of the circumstances of the relationship", including the specified matters; and … [that was] a question of law.
31 There is, in our view, a fundamental defect in these contentions. It arises from the fact that the words in parenthesis, "where relevant", after the word "including" in the text of reg 1.04AAAA(1)(a) in this matter are not included in the regulation under consideration in He. That omission means that reg 1.04AAAA(1)(a) does not itself identify "each of the circumstances set out in [it] as being relevant to the decision and [require] each of those circumstances to be considered" (see He at [59]). Instead, reg 1.04AAAA(1)(a) only requires the listed circumstances to be considered where they are relevant to the determination of the existence of the interdependency relationship in question. It follows that we do not consider the observations in He at [59], [73] and [79] above, with respect to regs 1.15A(2) and (3), apply to the Tribunal's determination under reg 1.04AAAA(1)(a) in this matter.
32 However, that leaves the question whether the Tribunal committed an error with respect to its more confined obligations as outlined in He in relation to the circumstances listed in reg 1.04AAAA(1)(a). As well, there are two other aspects of the judgment in He that bear upon the Tribunal's decision-making function in this matter. They arise from two similarities between the text of the regulation under consideration in He and sub-reg 1.04AAAA(1)(a). The first is that, since the words "all of the circumstances of the relationship" appear in both reg 1.15A(2) and reg 1.04AAAA(1)(a), the observations at [58] of He apply with equal force to the Tribunal's determination in this matter. Specifically, the Tribunal in this matter was required to identify what the relevant circumstances of the relationship in question in this matter were in order to properly discharge its decision-making function. The second relates to the words "must consider" in reg 1.15A(2) and the corresponding words "are to be taken into account" in sub-reg 1.04AAAA(1)(a). Having regard to the similarity in text and context between those two phrases, we agree with Mr Williams' submissions that they apply the same level of obligation to the Tribunal's decision-making function in this matter, as was discussed generally in He. That is to say, the Tribunal in this matter was compelled to consider the circumstances it identified as relevant and to apply an active intellectual process in determining whether, in the circumstances, the proffered relationship was an interdependency relationship as defined.
33 The question then is whether the Tribunal duly complied with those requirements. Before turning to answer that question, it is important, first, to reiterate the nature of the decision-making task the Tribunal was required to perform. At its highest level, it was to decide whether IS Industry's decision was fair and reasonable. It was required to make that determination having regard to the particular kind of interdependency relationship Mr Williams claimed existed between him and his son in the period leading up to his son's death, namely a father/son relationship. Critical to that determination was the definition of an "interdependency relationship" in s 10A(1) of the SIS Act. Pivotal to whether the father/son relationship advanced by Mr Williams met that definition was the question posed by the criterion in s 10A(1)(b): whether Mr Williams and Joseph "live[d] together" during the period prior to Joseph's death.
34 In the course of answering that pivotal question in the negative, the Tribunal stated that it had relied upon "the facts on offer" (see at [34] set out at [19(a)] above). In context, that statement plainly referred to the factual matters that were advanced by each party in the course of outlining the respective positions they had put to the Tribunal. Those matters were set out at [22]-[24] of the Tribunal's reasons. It was with respect to those facts that the Tribunal proceeded to record its findings and make its conclusion commencing at [34] of its reasons (summarised at [19] above).
35 As that summary of those findings and conclusions reveals, on that pivotal question, the Tribunal concluded that Mr Williams and his son did not live together immediately prior to Joseph's death. It based that conclusion on its findings about Joseph's work and living arrangements in the period leading up to, and immediately after, May 2011 and his future intentions at that time with respect to those arrangements. In particular, it found that, in May 2011, Joseph was visiting his father for a brief holiday after having worked and lived abroad since November 2010 and with the intention of resuming that employment and that mode of living at the conclusion of his holiday. Its conclusion on that pivotal question led, in turn, to its ultimate conclusion, recorded at [45] of its reasons, that Mr Williams "was not in an interdependency relationship with [his son]" (emphasis added) as defined in s 10A(1) of the SIS Act.
36 This brief review of the Tribunal's dispositive reasoning demonstrates, in our view, that it complied with all of the requirements outlined above. In particular, from the facts available to it, it identified the circumstances of the relationship advanced by Mr Williams that were relevant to the pivotal question it had to determine. In that process, it made all the necessary findings of fact, specifically as to where Joseph worked and lived in the months and years leading up to his death. It then engaged in an active intellectual process in determining that, in those circumstances, the relationship advanced by Mr Williams did not constitute them living together in the terms of the criterion in s 10A(1)(b) of the SIS Act and, therefore, did not meet the definition of an interdependency relationship in s 10A(1).
37 The Tribunal did not, therefore, make any of the errors alleged by Mr Williams as outlined at [29] above. Nor did it err by failing to consider Mr Williams' submissions regarding the matters described in ss 10A(1)(c) and (d), or the matters listed in reg 1.04AAAA(1)(a) as alleged at [30] above. The latter is so, for a number of additional reasons. First, since all of the criteria in s 10A(1) must be met for an interdependency relationship to exist, once the Tribunal reached its negative conclusion on one of those criteria, it was unnecessary for it to consider whether the criteria in s 10A(1)(c) or (d) may have been met. Furthermore, it was for the Tribunal to determine what circumstances were relevant to its determination concerning the criterion in s 10A(1)(b). Thus, it can be readily inferred from its failure to expressly mention those two criteria in the crucial part of its reasons that it did not consider they had any relevance to that determination.
38 The same observations apply to the relevance of the circumstances listed in the body of reg 1.04AAAA(1)(a). From the Tribunal's failure to mention any of those circumstances in the crucial part of its reasons, it can also be readily inferred that the Tribunal did not consider them to be requisitely relevant. This conclusion is separately supported by the fact that those listed circumstances were patently irrelevant to the particular kind of interdependency relationship that was advanced by Mr Williams, namely that of father and son. Self-evidently, the duration of such a relationship is fixed by the birth of the son and by the death of one of them. Hence the circumstance described in reg 1.04AAAA(1)(a)(i): the duration of the relationship; or that described in reg 1.04AAAA(1)(a)(iv): the degree of commitment to a shared life; or that described in reg 1.04AAAA(1)(a)(viii): the extent to which the relationship is one of mere convenience; or that described in reg 1.04AAAA(1)(a)(ix): the intended permanence of the relationship; were all patently irrelevant circumstances. Furthermore, it would be verging on the absurd to suggest that the questions posed by the circumstances described in reg 1.04AAAA(1)(a)(ii): whether or not a sexual relationship exists; or that described in reg 1.04AAAA(1)(a)(v): the care and support of children; had any relevance to a father/son relationship. Similar observations may be made about the relevance of all of the other listed circumstances to the particular relationship with which the Tribunal was concerned. Accordingly, the Tribunal was not, in the circumstances of this matter, required to laboriously mention and exclude seriatim all of those circumstances in its reasons in order to avoid committing the sorts of errors alleged by Mr Williams.
39 It follows, in our view, that the Tribunal duly performed its task under s 10A(1) of the SIS Act and reg 1.04AAAA(1)(a) in accordance with the principles outlined in He. It follows further that the primary judge did not make any error in his review of, and conclusions about, those aspects of the Tribunal's decision. For these reasons, neither the Tribunal, nor the primary judge, made any of the errors as alleged under this ground of appeal. This ground must therefore be rejected.