Unstable relationship an obstacle to partner visa?

Federal Court: Can an administrative decision-maker "find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life"? Can it "be said that questions raised and conclusions reached about the stability of the relationship" are irrelevant to an administrative decision-maker's assessment of the factors in reg 1.15A(3)(d)?

The Appellant applied for an onshore partner visa and shortly after the application "the sponsor emailed the Department describing his deteriorated relationship with the appellant".

A delegate of the Minister refused the visa application and the Appellant applied to the Tribunal (AAT) for merits review of the delegate's decision.

By the time of the Tribunal hearing, the relationship had broken down and the Appellant claimed that she had suffered domestic violence perpetrated by the sponsor while the relationship was still on foot.

Matters relevant to Questions 1 and 2 below

The Appellant claimed that the relationship was unstable, that it had 'highs and lows' and that she married the sponsor "because they loved each other very much and she 'got used to arguing'".

As a result of the unstable nature of the relationship, the Tribunal found the Appellant and sponsor had not, before the alleged family violence occurred, had "a mutual commitment to a shared life as a married couple to the exclusion of all others" (see s 5F(2)(b) of the Migration Act 1958 (Cth)).

Matters relevant to Questions 3 to 5 below

In determining whether the Appellant and the sponsor had "a mutual commitment to a shared life as a married couple to the exclusion of all others", the Tribunal was "required to consider each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3), and any other relevant circumstances of the relationship".

The Tribunal did not make express findings about some of the matters set out in reg 1.15A(3).

Matters relevant to Question 6 below

The Appellant provided the Tribunal with a written tenancy agreement where the sponsor's name had been typed and the Appellant's name had been handwritten. However, the contract had a clause according to which only one tenant could occupy the premises. Although there was evidence to effect that the real estate manager had authorised the insertion of the Appellant's name to the contract, the Tribunal found that the above-mentioned clause indicated that it was implausible that the real estate manager had added the Appellant as a co-tenant to the sponsor's tenancy agreement.

Matters relevant to Question 7 below

The Tribunal asked the Appellant at the hearing about the "degree of emotional support ... that [she and the sponsor drew from each other]" while the relationship was on foot (see r 1.15A(3)(d)(iii)). The Tribunal's decision record made an express finding that the Appellant and sponsor did not draw the required degree of emotional support from each other, but did not make an express finding about the other limb of r 1.15A(3)(d)(iii), namely "the degree of companionship ... that [she and the sponsor drew from each other]".

Judicial review proceedings

The Applicant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but that application was dismissed.

The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), the questions to which were as follows:

Question 1: Is it an "error for the Tribunal to find that a fundamentally flawed relationship could not simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others"?

Question 2: Can it "be said that questions raised and conclusions reached about the stability of the relationship and the emotional support provided by the sponsor were irrelevant to the Tribunal’s assessment of the factors in reg 1.15A(3)(d)"?

Question 3:

Background: the FCA said as follows at [36]:

36... [The FCA decision in He] makes it clear the Minister must consider all the matters set out in the Act and the Regulations. While it may be helpful to do so by a check-list, that approach is not required...

Question: Can it be said that, "if it is obvious that the nature and expression of findings on one matter [under r 1.15A(3)] will extend to other topics requiring consideration (which is not at all uncommon), a finding on the second or subsidiary matter may properly be inferred"?

Question 4: Given that He is authority for the proposition that an administrative decision-maker "must consider all the matters set out in the Act and the Regulations", is a failure to make an express finding on any of those matters necessarily a jurisdictional error?

Question 5: If a decision record "indicates no rejection of the evidence advanced by a party, it is [possible] to infer that such material has been accepted", depending on the circumstances?

Question 6: Was it legally unreasonable for the Tribunal to have found that it was implausible that the real estate manager had added the Appellant to the sponsor's tenancy agreement in circumstances where there was evidence to the effect that the insertion had happened?

Question 7: Can it be said that companionship and emotional support might be regarded as different but related concepts?

The FCA answered those questions as follows:

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