Zeng v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1593

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. By an application made pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act), the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 June 2019, affirming a decision of the first respondent to not grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (visa).

1. The background to the matter and summary of the Tribunal's decision is derived primarily from the written submissions of the parties, and the material in the Court Book. Unless otherwise indicated, it does not appear to be in dispute.
2. The applicant, a citizen of China, applied for the visa on 9 September 2015 (Court Book (CB) 1 to 29). In his visa application, the applicant identified his wife as his sponsor (sponsor) (CB 13).
3. On 12 June 2017, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy cll 801.211 or 801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 68 to 95).
4. On 3 July 2017, the applicant applied to the Tribunal for review of the delegate's decision (CB 96 to 97).
5. On 14 March 2018, the applicant provided documents to the Tribunal including, inter alia, statements from himself and the sponsor, and a copy of their marriage certificate (CB 114 to 147).
6. On 22 August 2018, the applicant was invited to appear at a hearing before the Tribunal on 5 October 2018. The Tribunal also requested that, on or before 28 September 2018, the applicant provide copies of bank statements for accounts held by him and the sponsor (jointly and individually) (CB 149 to 152). On 29 August 2018, the applicant submitted further documents, including additional bank statements and a Residential Tenancy Agreement (Lease) (CB 153 to 212).
7. On 5 October 2018, the applicant and sponsor each appeared before the Tribunal (first hearing). The applicant's migration agent was present, and the applicant was assisted in the giving of his evidence by an interpreter in the Mandarin language (CB 213 to 215). At the first hearing, three witnesses gave evidence for the applicant, and he provided the Tribunal with updated statements made by each of himself and the sponsor (CB 216 to 217).
8. On 17 October 2018, the applicant submitted further evidence, including bank statements and medical documents pertaining to the sponsor's health (CB 218 to 258).
9. The applicant attended a further hearing on 20 December 2018 (second hearing), again with his migration agent and with the assistance of an interpreter in the Mandarin language. At the second hearing, the applicant provided additional evidence and called three witnesses, including the sponsor, to give evidence (CB 266 to 275). On 19 February 2019, the applicant provided further medical evidence pertaining to the sponsor's health (CB 277).
10. On 12 June 2019, the Tribunal affirmed the decision not to grant the visa (CB 281 to 292).

1. The Tribunal set out that, at the hearings, it had put to the applicant a number of inconsistencies in his evidence pursuant to s 359AA of the Act (which applied at the time of the Tribunal's decision). By reference to the evidence, the Tribunal listed nine potential inconsistencies, arising therefrom:

(a) the date the parties first met (potential inconsistency 1);

(b) by whom expenses pertaining to the applicant's elder son were paid (potential inconsistency 2);

(c) by whom expenses pertaining to the applicant's younger son were paid (potential inconsistency 3);

(d) when the sponsor first met the applicant's elder son (potential inconsistency 4);

(e) the last occasion on which a family "celebration" had been attended together (potential inconsistency 5);

(f) what the parties had eaten for dinner the previous evening (potential inconsistency 6);

(g) details of their wedding (potential inconsistency 7);

(h) the amount paid to the applicant for work the previous Saturday (potential inconsistency 8); and

(i) when the applicant's car had last been serviced (potential inconsistency 9).

1. A further potential inconsistency (potential inconsistency 10) was described by the Tribunal in relation to the parties' evidence about their shared home in a particular suburb (CB 287 at [24]).
2. The Tribunal identified to the applicant the potential relevance of the information, and outlined the consequences of it relying on the same (CB 284 at [16]).
3. The Tribunal expressed concerns that the applicant and sponsor were not able to consistently answer questions about where, and when, they first met and how their relationship developed. The Tribunal observed that, when the inconsistencies were put to the applicant at hearing, he gave answers which seemed deliberately vague and, thereafter, adjusted his answers on an ongoing basis. The Tribunal did not consider it plausible that the applicant would fail to remember pertinent details about his relationship with the sponsor. It found the lack of knowledge and frequent shifting of evidence which the applicant displayed was not consistent with the relationship that the parties claimed to have. Further, the Tribunal was not satisfied the explanations given were sufficient to overcome the cumulative effect of the inconsistencies (CB 286 at [18]).
4. The Tribunal accepted, based on the medical evidence provided, that the sponsor suffered from depression and that medication she took might make her drowsy, and at times, forgetful. The Tribunal took this into account when assessing the sponsor's evidence (CB 286 at [19]).
5. The Tribunal accepted that the applicant and sponsor were legally married to each other (CB 286 at [22]) and proceeded to consider all the circumstances of the relationship as set out in reg 1.15A(3) of the Regulations (CB 286 at [21]).
6. Considering the financial aspects of the parties' relationship, the Tribunal noted the applicant's evidence that he and the sponsor had been living in a rented five-bedroom house for the last four months (the rental home). He could not provide the address of the rental home but named the suburb in which it was located correctly, and said that the sponsor's two daughters lived with them (CB 287 at [23]). The Tribunal found the evidence of rental payments for the rental home to be ambiguous, observing that the bank statements which showed those payments being made also recorded the payments being reversed thereafter back to the same account.
7. While the applicant provided proof of lodgement of a bond for the rental home, the Tribunal found the bank statements provided were not indicative of the bond being paid from the sponsor's credit card as she claimed. Further, the Tribunal found the applicant and sponsor had provided inconsistent evidence about the amount of rent paid which was actually paid (and found those amounts differed to the rent listed on the Lease) (CB 287 at [24]).
8. The Tribunal set out the evidence of the applicant and sponsor about their respective employment and the income they would each have received for their respective work. It also recorded the applicant and sponsor's evidence about where, and how, that income was used, including the depositing of funds into their joint account to cover rental payments (CB 287 to 288 at [25] to [28]). The Tribunal noted its concern that the parties' joint bank statements did not accord with the evidence they gave about earnings. Further, it observed the applicant and sponsor each avoided giving direct answers when pressed on financial matters (CB 288 at [30]).
9. The Tribunal found inconsistent evidence about the work the applicant did, and how he was paid, to not be indicative of himself and the sponsor sharing finances in a joint household. It recorded the applicant's evidence that he and the sponsor had no joint loans or assets and had no savings. Weighing all the evidence regarding financial aspects, the Tribunal found this to not be clearly indicative of whether the applicant and sponsor were, or were not, in a genuine relationship (CB 288 at [31] to [33]).
10. Turning to the nature of the household, the Tribunal found the applicant and sponsor gave consistent evidence about their sharing of household chores (CB 289 at [35]). However, it was not satisfied the applicant and sponsor currently lived as part of one household because of the evidence about the rental payments being reversed, their conflicting evidence about the amount of rent paid, and the lack of knowledge of each other's daily work habits (CB 289 at [36]). While the Tribunal accepted the applicant and sponsor had previously resided as part of the same household (in a property in a different suburb), it was unable to determine on the evidence whether they were currently living as a couple or, alternatively, had previously shared that home only until the applicant could obtain a visa (CB 289 at [37]).
11. Addressing the social aspects of the relationship, the Tribunal accepted the applicant and sponsor socialised together (CB 289 at [38] to [40]). It also accepted that their relationship was supported by their families and some friends. However, the Tribunal was not satisfied the applicant and sponsor currently presented to the community at large as two people in a genuine relationship. Nonetheless, it acknowledged the sponsor's medical evidence which attested to her relationship with the applicant (CB 289 to 290 at [41]). On balance, the Tribunal found the evidence about the social aspects of the relationship was indicative of a genuine relationship (CB 289 to 209 at [41] at [42]).
12. As to the nature of their commitment to each other, the Tribunal found the respective evidence of the applicant and sponsor to be confused and unconvincing. It noted several inconsistencies in their oral evidence, mainly in relation to family issues and found that the lack of knowledge displayed by the applicant about those matters was not indicative of a person in a genuine and continuing relationship (CB 290 at [43]). The Tribunal considered it reasonable to expect the parties would recall the evolution of their relationship from being a friendship to a marriage with some specificity, given they had both recently ended long-term marriages, had a number of children who would be impacted by the decision of their marrying and noting the applicant had relocated to Australia, despite having business ties to China (CB 290 at [44]).
13. The Tribunal placed weight on the inconsistencies in the parties' evidence as to by whom their wedding was attended, finding it to be reasonable to assume they would each remember who attended such a significant life event particularly when the guests included their respective children. The Tribunal also placed weight on the inconsistencies in evidence about when the sponsor met the applicant's older son, and when they last had a family celebration (CB 190 at [45]). It considered the parties' responses as attempts to reconstruct evidence in a light more favourable to them for the purposes of the application. Accordingly, the Tribunal was not satisfied the evidence of the applicant and sponsor was indicative of a relationship characterised by a shared life together. It afforded this consideration significant weight, noting that it tended to indicate the parties did not communicate as claimed, or did not know each other as people in a committed relationship likely would (CB 190 at [46] to [47]).
14. The Tribunal found there to be insufficient evidence upon which it could be satisfied that the applicant and sponsor lived together in a genuine and continuing relationship, provided one another with companionship and emotional support, or that they saw the relationship as long term (CB 290 at [48]). In so finding, the Tribunal was not satisfied the parties were in a genuine spousal relationship at the time of the application, or at the time of its decision. Nor was it satisfied, on the evidence, that the applicant and sponsor were committed to a shared life as husband and wife to the exclusion of all others (CB 291 at [49] to [50]).
15. On the evidence before it, the Tribunal was not satisfied the applicant had established he was currently in a genuine and committed spousal relationship with the sponsor. Accordingly, it found he did not meet cl 820.211(2)(a) of Schedule 2 to the Regulations and affirmed the decision under review (CB 291 at [53] and [55]).

1. These proceedings were commenced by an application to show cause filed on 26 July 2019. The applicant has been represented by his solicitors since the inception of the proceedings. The proceedings were initially docketed to another Judge of the Court (first primary Judge).
2. On 21 August 2019, a Registrar made orders for the preparation of the matter for a hearing, which included leave to the applicant to file any amended application by 17 October 2019, with the matter next to be listed for a callover before the first primary Judge on a date to be advised to the parties.
3. The matter was subsequently placed in the central migration docket before being docketed to another Judge of the Court (second primary Judge). On 9 November 2023, the Associate to the second primary Judge emailed the parties notifying them that the matter was listed for hearing on 16 May 2024.
4. On 26 April 2024, the Associate to the second primary Judge wrote to the parties, noting that the applicant had failed to file and serve written submissions in accordance with the orders of 5 August 2019. On 29 April 2024 the second primary Judge made procedural orders, by consent, listing the matter for final hearing on 14 August 2024, to be heard using Microsoft Teams.
5. On 12 August 2024, the parties were notified that due to the unavailability of the second primary Judge, the final hearing listing had been vacated.
6. On 23 September 2024, the proceedings were transferred to me and I made an order listing them for hearing. No additional procedural orders were made, given that an Amended Application, evidence and written submissions had been filed by the applicant, as had written submissions for the first respondent. I have been assisted by the submissions of the parties both in writing and at hearing.
7. By the Amended Application, filed on 17 July 2024, the applicant raises the following ground (emphasis in original):

The second respondent (the Tribunal) made critical findings of fact that were both unsupported by the evidence and failed to take account of, or engage with, evidence and submissions provided by the applicant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

Particulars

1. The Tribunal rejected the account given by the applicant and his sponsoring wife as to the genuineness of their relationship on the basis of minor and immaterial discrepancies.
2. In finding that the relationship between the applicant and his sponsoring wife was not genuine the Tribunal failed to consider, engage with , or make findings in relation to substantial evidence which supported the genuineness of the relationship.

1. At hearing, the applicant read the Affidavit of Jodie Ellen Coomber, affirmed 15 October 2019 (Coomber Affidavit) without objection. The Court Book was tendered for the first respondent and was marked as Exhibit "1R".

1. By ground 1(a), the applicant says the Tribunal's rejection of the evidence given by him and the sponsor in respect of the genuineness of their relationship seriously lacked in foundation, rationality, and logical coherence in a way which renders the decision legally unreasonable.
2. The applicant contends that the 10 potential inconsistencies identified by the Tribunal (see [12] to [13] above) were either not inconsistencies or, if they were, were so minor as to render the Tribunal's reliance on them its adverse credibility findings, irrational.
3. The applicant says that jurisdictional error may arise where adverse credibility findings are based on inconsistencies are not, in fact, inconsistent, or where an identified inconsistency is immaterial, relying on ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 (ASB17) at [42] to [43] and [44] per Griffiths J, Mortimer J (as her Honour then was) and Steward J and SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [40] per Allsop CJ.
4. The applicant observes that a Tribunal will commit jurisdictional error where it ignores, overlooks, or misconstrues evidence: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 at [27].
5. The first respondent says that while it is well established that "extreme" illogicality or irrationality must be shown for a decision to be vitiated by an error based on illogical or irrational findings of fact or reasoning, when measured against the requisite standard the error alleged is simply not made out: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] per Robertson J, Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52] per Wigney J and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] per McKerracher, Griffiths and Rangiah JJ.
6. Insofar as the Tribunal's adverse credibility findings are challenged, the first respondent says that jurisdictional error cannot be established unless the applicant can demonstrate those findings (and the facts upon which they rely) were illogical, and had no probative weight, citing EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] in which Stewart J observed:

Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made...

1. The applicant and sponsor gave various, differing accounts to the delegate and the Tribunal about when they first met one another including the:

(a) visa application made on 9 September 2029 at CB 19: "01 Sep 2009";

(b) statement of the sponsor dated 14 March 2018 at CB 114 at [4]: "(Shi) and I met for the first time in May 2010", which claimed the couple met in Xi'an where the sponsor and her family were operating a restaurant, which the sponsor attended while travelling;

(c) statement of the applicant dated 14 March 2018 at CB 116 at [4]: "I met Ling Hui Kong ...for the first time in May 2010", which claimed the couple met in Xi'an at the restaurant of the sponsor's family;

(d) statement of the sponsor dated 4 October 2018 at CB 216 at [1] seeking to correct the statement referred to at [42(b)] above: "My husband Shi Zeng (Shi) and I first met each other in Shenzhen, China in March 2011. Then, we met each other again in Xi'an, China in May 2011 when my husband and her sister travelled to the city"; and

(e) statement of the applicant dated 4 October 2018 at CB 217 at [1] seeking to correct the statement referred to at [42(c)] above: "I met Linghui Kong for the first time in Xi'an, China in March 2011.(...) In May 2011, I again met Linghui Kong in May 2011 when I travelled to Xi'an, China.".

(a) the applicant gave evidence that he met the sponsor in May, or March or April[1] in Shenzhen[2] in the applicant's factory;[3] and

(b) the sponsor gave evidence that she first met the applicant in 2011 when she first went to Shenzhen and he picked her up from the airport and took her to the factory.[4]

However, at (CB 286 at [18]) the only concern expressed by the Tribunal about these inconsistencies was their evidence at the hearing. When closely scrutinised, the Tribunal's claims of inconsistency do not stand up.

1. At [18], the Tribunal said the following (emphasis added):

The Tribunal was concerned the applicant and the sponsor were not able to answer questions put to them about where and when they had first met and the development of their relationship. When the inconsistencies were put to the applicant under s.359AA of the Act the applicant frequently sought to adjust his answers and sought wherever possible to evade giving an answer. The Tribunal did not consider it plausible that he could fail to remember pertinent details about the history of the relationship. The Tribunal was concerned the answers the applicant gave were deliberately vague in an attempt to not disclose any information he considered may be prejudicial to the claim. The lack of knowledge and the frequent shifting of evidence displayed by the applicant were not consistent with the relationship the parties claimed to have. Whilst it is appreciated Tribunal proceedings can be very difficult for parties and this stress can of itself lead to some inconsistencies in the evidence given, the Tribunal is not satisfied the explanations given are sufficient to overcome the cumulative effect of the inconsistencies.

1. A review of the hearing transcript demonstrates that it was the second hearing at which the Tribunal utilised the mechanism prescribed by s 359AA to invite the applicant to comment on information.[5] While the Tribunal did preface its comments about the use of s 359AA by reference to evidence given at the first hearing,[6] I reject the submission at [44] above that it was that evidence alone which was put to the applicant for comment as being inconsistent.
2. The first respondent accepts that the applicant's evidence at the first and second hearing aligned, in that the applicant said he met the sponsor in "May or - or it in March or April" 2011 and then again "between March and April 2011". That acknowledgment is properly made. However, it is clear from the transcript of the second hearing that the Tribunal put to the applicant for comment the entirety of the evidence about times and places of meeting including the information which has been set out at [4[7]] above.7 The broader account of when the parties met was, in fact, inconsistent, even though the applicant and sponsor appeared to arrive at a unified account by the time of the second hearing. It was open to the Tribunal to consider the evidence, in respect of where and when the applicant and sponsor had first met, to be inconsistent.
3. I also accept the submission of the first respondent that despite the multiple differing versions of when and where the applicant and sponsor met being a matter for concern the Tribunal, its ultimate factual findings focused instead on their inability to give specific evidence about how the relationship had transitioned from friendship to marriage (CB 290 at [44]).

1. Potential inconsistencies 2 and 3 pertained to the payment of expenses for the applicant's sons. Potential inconsistency 6 was said to be about the dinner of the applicant and sponsor the evening before the hearing. Each of the three potential inconsistencies is sought to be impugned by the applicant by reference to [16] of the Tribunal's reasons.
2. It is convenient to deal with these inconsistencies together because I accept the submission of the first respondent that, properly understood, paragraph [16] is not an expression of the Tribunal's findings. Rather, it is a summary of the matters which were put to the applicant pursuant to s 359AA at the first hearing. Paragraph [16] does not set out (much less address) the applicant's oral or written responses to that adverse information, nor how the Tribunal ultimately treated those potential inconsistencies as part of determining whether the applicant and sponsor were in a genuine spousal relationship.
3. The first respondent submitted that, at [16] of its decision, the Tribunal describes having formed a preliminary view at the first hearing that the applicant and sponsor had provided inconsistent evidence regarding the applicant's financial involvement with his two sons, and also put to the applicant a potential inconsistency about what the couple said they ate for dinner the night before the first hearing. However, the first respondent says that, at that juncture, the Tribunal's consideration of the evidence ends on those topics.
4. I accept that the Tribunal did not thereafter expressly refer to the evidence about either topic of its decision in determining the question of the existence of a genuine spousal relationship (CB 286 to 291 at [22] to [49]). Nor did the Tribunal make any findings about this evidence as to its consistency, or otherwise. I accept the contention that absent express reference to the evidence in the actuating part of its decision, the Tribunal can be taken to have found potential inconsistencies 2, 3 and/or 6 as being findings which were not material to its consideration of the reg 1.15A criterion.
5. I am not satisfied that the references to potential inconsistencies 2, 3 and/or 6 in [16] of the Tribunal's decision establishes the error alleged by the applicant.

1. It is also convenient to address these potential inconsistencies together as each pertains to the Tribunal's consideration of the financial aspects of the relationship.
2. The Tribunal summarised potential inconsistency 8 (at [16]) as being:

At the time of hearing the sponsor said the applicant had been paid $1000 for work on the Saturday prior to hearing. This was not consistent with the evidence given by the applicant that he had been paid $5000.

1. The applicant contends that neither party said that the applicant had been paid an identified amount for his work on the Saturday prior to the second hearing. Rather the applicant contends:

(a) that he gave evidence that preceding Saturday he had been paid $5,000 for a period which he described as having been "quite a long time";[8]

(b) of the $5,000 he received, he gave $1,000 cash to the sponsor for her so she could pay the rent.[9] The applicant now submits that even this amount could not have been understood as being payment for work done on that Saturday alone, given that he was only paid approximately $20 per hour;[10] and

(c) the sponsor gave evidence that the applicant had given her "around $1,000" the preceding Saturday which she used to pay the rent.[11]

1. Given that it is relevant to each of alleged inconstancies 8 and 9, it is sensible to set out the Tribunal's exchange with the sponsor on this topic:[12]

Member: And, do you know when he last got paid?

Sponsor: Should be last Saturday.

Member: Do you know how much he was paid?

Sponsor: Last Saturday, around $1000.

Member: When did he last pay you for rent?

Sponsor: Last Saturday. It was - he gave be $1000 last Saturday.

Member: Do you know when he last had his car serviced?

Sponsor: Should be one or two months ago.

Member: Where does he go to have it serviced?

Sponsor: Gladesville.

Member: Do you know where in Gladesville?

1. The sponsor answered with the name and address of the garage,[13] yet the applicant had been unable to provide those details himself.[14]
2. The applicant contends that the sponsor's understanding of how much he was paid appeared to be based on the $1,000 he gave her that day but that, in any event, their evidence was not inconsistent.
3. The first respondent contends that when regard is had to the transcripts of the Tribunal proceedings, the applicant and sponsor were each asked about when the applicant was last paid (not what work he completed on the Saturday and how much he received for that Saturday work). That can be accepted, particularly given the applicant's specific evidence as to the work he had completed the previous week and that he was yet to be paid for that specific work.[15]
4. The first respondent says that the questioning of the applicant and sponsor plainly distinguished between questions about the last date upon which the applicant was paid by his employer and the last date the applicant paid rent to the sponsor (and in what amount). The first respondent says that based on the responses given by the applicant and sponsor to the Tribunal, "it was plainly open to the Tribunal to find that the evidence was inconsistent about how the applicant was paid." I agree. There was a discrepancy in the amounts. The sponsor appears not to have been unaware that the applicant had received $5,000 the preceding week (even allowing for the fact that her answer was that he had been paid "around" $1,000, which allowed for the possibility he received more than that amount). To the extent that this evidence may have contributed to the Tribunal's finding (at [31]) as not being indicative of parties sharing finances in a joint household, I am satisfied that assessment was open to the Tribunal to make.
5. The evidence regarding the last time the applicant had been paid immediately prior to the hearing dovetailed into the next alleged issue, which is said to give rise to potential inconsistency 9. The Tribunal summarised (at [16]) as being:

At the time of hearing the sponsor said the applicant last had his car serviced two months ago. This was not consistent with the evidence of the applicant that he had used part of the monies he was paid the previous Saturday to have his car serviced and to put new tyres on it.

1. Given that the applicant had responded in the manner set out in the extract in the preceding paragraph, it is perhaps unsurprising that the Tribunal member interconnected the topics in the exchange with the sponsor which is set out at [57] above.
2. The applicant says that, upon the sponsor being asked when the applicant's car had last been serviced, she replied "Should be one or two months ago", which suggested that she was uncertain of the date. However, that same expression was used when answering about the last time the applicant had been paid "Should be last Saturday."[16] I am not satisfied that the use of the words "should be" necessarily indicated equivocation. The sponsor was apparently certain about where the applicant took his car for service. It was the applicant who could not identify any further detail, beyond the name of the suburb in which the garage was located. Again, I am satisfied that it was open to the Tribunal to consider these to be matters which were not indicative of the parties sharing finances in a joint household.
3. In relation to potential inconsistency 10 (at [24] arising from the decision), the Tribunal described the evidence about payments for the rental home as being "equivocal". Based on the material before it, this descriptor was apposite and available to the Tribunal in the circumstances. That material included:

(a) bank statements which showed payments being made but which were returned the same account in the days following payment;

(b) there being no evidence of those payments being re-made from any other account;

(c) the evidence from the sponsor that she paid the bond for the rental home using her credit card but, relevantly, statements provided did not show such a payment and there was imprecision as to how much that bond was;

(d) disparate evidence as to whether the rental home was 4 or 5 bedrooms;

(e) disparate evidence as to the amount of rent paid and the frequency of payments; and

(f) the inability of the applicant to identify the address of the rental home beyond the suburb in which it is located.

1. The applicant submits that the differing evidence given by the applicant and sponsor about the amount of their rent was "not a significant inconsistency". However, I agree with the submissions of the first respondent that the evidence was inconsistent in a number of respects, and it remained open to the Tribunal to take those aspects into account, together with a number of other concerns which the evidence raised in assessing whether or not the financial circumstances of the relationship were demonstrative of the applicant and sponsor being in a genuine relationship.
2. It is a matter of moment that, ultimately, the Tribunal did not make a definitive finding in respect of this issue, finding overall that the evidence was not clearly indicative of whether the applicant and sponsor were, or were not, a couple in a genuine relationship. However, I accept the submission of the first respondent that there was a clear and logical nexus between that evidence and the couple's finances, and that the inconsistencies upon which the applicant relies on were not the sole basis for that assessment. The Tribunal also considered the evidence of the applicant and sponsor in respect of their own finances and the finances of the other partner, including in what type of work they engaged and how much money they made from that work. I accept that it was open to the Tribunal to be concerned that the evidence about the parties' respective employment did not correspond with amounts deposited into their joint account. Similarly, it was relevant that the applicant and sponsor had no joint loans or assets.
3. Overall, I am satisfied that it was open to the Tribunal to find as it did and that the cumulative effect of the evidence cannot be categorised as immaterial.

1. The applicant contends that potential inconsistency 4 involves the Tribunal recording that, at hearing, the sponsor said that she first met the applicant's elder son in August 2018 when he was living with them at a previous address. However, the applicant said that the parties had left the previous address prior to August 2018 and, when the discrepancy was put to him, he said that while he had moved out from the previous address his son had remained living there. The applicant's evidence was that the sponsor had first met the applicant's elder son when he came to Australia in 2018. At the second Tribunal hearing it became apparent that the applicant's elder son for whatever reason, stayed the whole time with the applicant's sister and her husband at the previous address. The applicant says the Tribunal erroneously considered that the parties had said that he had stayed with he and the sponsor at the previous address.
2. The first respondent accepts that the sponsor did not give evidence that she had met the oldest son of the applicant for the first time when he was living with them at the previous address[17]. However, that was but one of a number of inconsistencies and other concerns raised by the Tribunal. I am satisfied that on a fair and contextual reading of the Tribunal's decision, and in particular this aspect of the evidence, those findings remained open to it.
3. The applicant contends that potential inconsistency 5 concerns questions asked of each party that were different, therefore not directly comparable and neither should the responses be compared. The applicant was asked, "So, what was the last celebration you had with your sister's family"[18] and he said, "we celebrate in the West Pennant Hill home," referring to a farewell dinner for the applicant's elder son who was returning to China which he said was "just" a dinner.[19] The sponsor was asked a different question, "when would you last have attended a celebration at his sister's place?",[20] being at the previous address referred to in [69] above. The sponsor said that they had celebrated Chinese New Year at his sister&#[21]s place,21 which would have been in or around February 2018. The applicant says that both events could have taken place as described, and there is no relevant inconsistency.
4. Counsel for the applicant also says that the word "celebration", especially conveyed through an interpreter, is capable of any number of meanings, submitting for example that a get-together for Chinese New Year might well be a celebration as commonly understood but a dinner to farewell a child who is returning to China may not necessarily be regarded as a celebration, per se.
5. The first respondent accepts that varying definitions and interpretations could be attributed to the word "celebration". The first respondent says that the questions put to the applicant and sponsor were not different, and refutes the description of them as not being directly comparable.
6. The first respondent submitted that while the Member directly asked the sponsor:[22]

when would you have last attended a celebration at his sister's place?

1. However, the first respondent also submits that directly preceding that question, the Member asked two questions of the sponsor, namely:

Well, do you attend family celebrations together?[24]

What was the last family celebration you attended together[25]

1. The sponsor said that they did celebrate together and that the last family celebration was the "mid-Autmn festival." The questions had also been put to the applicant in similar terms[26] to which he responded:

well, this mean the family celebration I - we celebrate was my sister's family. So that should be all together[27]

1. When asked what event had been celebrated with his sister's family, he replied:

my eldest son went to China soon, so, we just have a dinner together[28]

1. The first respondent says that, simply put, the applicant said the last family celebration was a farewell dinner for his son and, by contrast, the applicant said it was for the mid-Autumn festival. The first respondent says that even if it could be said that either party misunderstood the meaning of celebration, they nonetheless gave different accounts about the last time they celebrated with the family of the applicant's sister. Based on the evidence cumulatively, in respect to aspects of their relationship, the first respondent says it was open for the Tribunal to consider this to be a matter of moment and therefore afford it weight. I accept that submission.
2. In regard to potential inconsistency 7 the applicant accepts that the sponsor said that she planned the wedding herself[29] and that, by contrast, the applicant said his sister and brother-in-law had planned it.[30] The applicant accepts this too was an inconsistency.
3. However, the applicant says, in essence,[31] that the sponsor gave evidence that the applicant's sister and brother-in-law attended with their children. The sponsor said her eldest daughter did not attend for specific reasons (which she gave) but did not say that her younger daughter had not attended. This is said to be consistent with the applicant's evidence. The applicant submits that the only difference between the accounts was that the applicant also said the sister and granddaughter of the sponsor attended. Otherwise, he submits that each of them having correctly and consistently identified which of the sponsor's children attended, was more significant than the sponsor having overlooked the attendance of her sister and grandchild. The applicant concludes by asking rhetorically "In any event, what does any claimed confusion about the details of the wedding go to?"[32]
4. I agree with the first respondent that the inability of the applicant and sponsor to cohesively:

(a) give evidence about their wedding;

(b) identify the six wedding guests;

(c) identify whether those guests were family members; and

(d) describe the activities which the wedding involved;

could not be said to be irrelevant, nor was it not logically probative in respect of credibility.

1. The submissions of the applicant in respect of this ground are, in truth, an attempt at merits review. The Tribunal observed that as a "significant life event" it was a reasonable to assume that the parties would remember who had attended, especially when it was said to be their own children (at CB 290 at [45]). I accept the submission of the first respondent that this was a matter which went to the reg 1.15A criterion, and also contributed to the Tribunal's view that the applicant and sponsor were not currently in a genuine relationship (CB 291 at [49]). I also accept the submission of the first respondent that the inconsistencies in the evidence about the parties' wedding were not confined only to those which have been extracted by the applicant in his grounds.
2. Overall, in respect of the first aspect of the ground of review, I am of the view that applicant's focus on the minutiae of the matters which the Tribunal put to him pursuant to s 359AA of the Act distracts from a holistic review of the Tribunal's decision and causes "significant aspects of the cumulative evidence" before the Tribunal to be overlooked. The first respondent says that this misdirection fails to engage with the decision-making process which the Tribunal actually undertook. I agree with that characterisation. I am satisfied that, overall, the Tribunal weighed the entirety of the written and oral evidence before it prior to concluding that the applicant and sponsor were not in a genuine relationship.

1. The second aspect of the ground of review alleges that, by finding that the relationship between the applicant and his sponsor was not genuine, the Tribunal failed to consider, engage with, or make findings in relation to substantial evidence which supported the genuineness of their relationship.
2. As the first respondent correctly contends the applicant bears the burden of demonstrating, on the balance of probabilities, that the Tribunal did not consider a relevant claim or evidence, citing Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [50] to [53] per Tracey J. The first respondent submits that the applicant has failed to meet the aforementioned evidentiary burden and that neither the Amended Application, nor the applicant's submissions, identify which evidence the Tribunal is said to have ignored or in respect which it failed to make findings.
3. The first respondent submits that the Tribunal's reasons for decision is that it had express regard to all documentary evidence provided to the delegate and to the Tribunal as well as the oral evidence of the applicant, his sponsor and their supporting witnesses at the hearings held on 5 October 2018 and 20 December 2018.
4. I agree that on a fair and contextual reading of the Tribunal's reasons for decision, there is nothing to demonstrate that the Tribunal failed to have regard to all the evidence before it, or that it disregarded evidence which weighed in favour of the applicant being in a genuine relationship with the sponsor.

1. I am not satisfied that the applicant has established that the decision of the Tribunal is affected by illogicality or irrationality at the level required to establish error (see [40] above), or at all. Overall, while the applicant may disagree with the Tribunal's conclusions, and potentially a different decision maker might have reasoned differently, I am satisfied that the findings and conclusions of the Tribunal were open to it on the material before it.
2. Absent jurisdictional error the decision of the Tribunal is a privative clause decision and the application, as amended, must be dismissed. I will so order.
3. I will hear the parties as to costs.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] First Tribunal transcript T 26.11 to 26.17

[2] First Tribunal transcript T 26.21 to 26.33

[3] First Tribunal transcript T 26.37 to 26.41 and also second Tribunal transcript at T 21.38 to 24.11

[4] First Tribunal transcript T 52.13 to 52.23 and T63.03 to 63.23

[5] Second Tribunal transcript T 20.41 to 21.36

[6] Second Tribunal transcript T 20.41 to 20.42

[7] Second Tribunal transcript T 21.38 to 23.18

[8] Second Tribunal transcript T13.12 to 13. 20

[9] Second Tribunal transcript T14.34 to 34.41

[10] Second Tribunal transcript T12.11 to 12.17

[11] Second Tribunal transcript T29.18 to 29.26

[12] Second Tribunal transcript T29.16 to 29.36

[13] Second Tribunal transcript T29.38 to 29.39

[14] Second Tribunal transcript T15.25 to 15.31

[15] Second Tribunal transcript T12.19 to 13.08

[16] See [58] above; Second Tribunal transcript T29.16 to 29.36

[18] First Tribunal transcript T 35.38 to 35.39

[19] First Tribunal transcript T 36.5 to 36.6

[20] First Tribunal transcript T 68.43 to 68.44

[21] First Tribunal transcript T 69.1 to 69.2

[26] First Tribunal transcript T35.32 and 35.33

[29] First Tribunal transcript T65.09 to 65.17

[30] First Tribunal transcript T31.43 to 31.44 and 32.2 to 32.3

[31] Applicant's written submissions at [35]

[32] Applicant's written submissions at [36]