Sharing a bed, thus not merely sharing a house?

Federal Court. Could the fact that there was only one bedroom in the couple's residence be ignored by the Tribunal? If the couple was sharing a bed, did this necessarily militate "strongly against the proposition that they were merely sharing a house"? Is what the decision in He has to say about the correct approach to r 1.15A(3) about whether a person is a spouse directly applicable to the position under r 1.09A(3) for the purpose of determining whether a person is a de facto partner?

The Appellants's protection visa application was refused by the Department. That refusal was affirmed by the Tribunal and a judicial review application to the Federal Circuit Court was dismissed. On appeal, the Federal Court (FCA) said as follows:

5 ... the Tribunal accepted that:

(1)    Ms Wang and Mr Barakat lived at the same address [13];

(2)    Ms Wang and Mr Barakat had lived together for a number of years [25];

(3)    Ms Wang and Mr Barakat represented themselves to others as a couple [17];

(4)    some of Ms Wang and Mr Barakat’s friends and relatives believed them to be a couple [17]; and

(5)    Ms Wang and Mr Barakat socialised and travelled together [25].

6    The Tribunal did not advert to oral testimony given to it that:

(6)    Ms Wang and Mr Barakat lived in a one bedroom apartment;

(7)    Mr Barakat’s pension had been reduced from $640 to $430 because Ms Wang was living with him when the evidence was that she only earned $75 per week; and

(8)    Ms Wang did not give Mr Barakat money but helped around the house.

Some of the questions to the FCA were as follows:

Question 1: In determining whether the couple was in a genuine relationship, could the fact that there was only one bedroom in the couple's residence be ignored by the Tribunal?

Question 2: If the couple was sharing a bed, did this necessarily militate "strongly against the proposition that they were merely sharing a house"?

Question 3: If the answer to Question 2 is 'yes', may it "well have been open to the Tribunal to reject this evidence and conclude that one of them slept on the couch"?

Question 4: If the couple was sharing a bed, was it open to the Tribunal "to find that although they slept together in the same bed, it was not in a conjugal fashion but just as a convenience forced upon them by circumstance"?

Question 5: The decision of the Full Court of the FCA in He v Minister for Immigration and Border Protection [2017] FCAFC 206 held that the delegate was required to make a finding about each of the matters appearing next to a lower case Roman numeral and about the more general matters next to the letters (a) to (d) under r 1.15A(3) of the Migration Regulations 1994 (Cth) for the purpose of determining whether a person was someone else's spouse (i.e. the four pillars of the relationship). Is what He has to say about the correct approach to reg 1.15A(3) directly applicable to the position under r 1.09A(3) for the purpose of determining whether a person is someone else's de facto partner?

Question 6: Can it be said that, "because the Tribunal had not made any findings about the matter in regs 1.09A(3)(b)(iii) and (d)(iii), it followed that the Tribunal had failed to comply with its obligations to take them into account"?

Question 7: Was the fact that "the Tribunal accepted that Ms Wang and Mr Barakat were cohabiting, whereas in He the Tribunal had concluded that the spouses in question were not", sufficient to distinguish He?

Question 8: In order for the FCA to overturn the decision of the court below on appeal, can it be said that "error will only be shown if this Court has the view that it would not have drawn the inference and it is of the view that the difference of opinion between it and the court below is such that it bespeaks the presence of error rather than mere disagreement"?

Question 9: Reg 1.09A(3)(d)(iii) read: "the degree of companionship and emotional support that the persons draw from each other". The Tribunal found: "Given their limited capacity to communicate, the Tribunal is not satisfied they draw on each other for comfort and emotional support". In determining whether the Tribunal considered r 1.09A(3)(d)(iii), is the question one of substance, not form?

Question 10: Was that finding about the subject matter of r 1.09A(3)(d)(iii)?

The FCA answered those questions as follows:

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