Case: Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30
Outcome: referred to
The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 , cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard." 52 Zhang is illustrative of a case in which the failure to make relevant findings did not lead to a holding that the decision-maker had failed to take into account the requisite matters: see Zhang at [19]-[20]. The decision shows that it is unnecessary for a decision-maker to "laboriously evaluate seriatim each of the considerations in reg 1.15A(3)". In that case, it was enough that the Tribunal considered the relevant evidence under the topics referred to in the regulation (as the Tribunal did in the present case). 53 Examination of the Tribunal's reasons in the present case and, in particular, its consideration of the evidence relevant to reg 1.15A(3), also shows that the requisite matters were considered and are reflected in the Tribunal's findings to the extent they are relevant. Under the heading, "[t]he nature of the household" (the subject of reg 1.15A(3)(b), the Tribunal made its finding that it was not satisfied that the appellant and Ms Tong were residing together in Melbourne (and if they were, then it was not satisfied that the relationship was genuine). This was relevant, amongst other things, to reg 1.15A(3)(b)(ii). In light of this finding, it was open to the Tribunal to determine that it was unnecessary to say anything specifically about either any joint responsibility for care and support of their child (the subject of reg 1.15A(3)(b)(i)) or shared responsibility for housework (the subject of reg 1.15A(3)(b)(iii)). Accordingly, I would not infer from the Tribunal's failure to mention the issue of joint child care and support that the Tribunal did not consider it or any other matter it was bound to consider. 54 Jurisdictional error is not established under this ground. 55 For the reasons stated, the appellant has established jurisdictional error as a result of a breach of s 360(1) of the Act , although he has not succeeded on his other grounds. The appeal should therefore be allowed. I would make orders accordingly. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 8 June 2007 Counsel for the Appellant: Mr G. Gilbert Solicitors for the Appellant: Erskine Rodan &amp; Associates Counsel for the First Respondent: Mr W. Mosley Solicitors for the First Respondent: Australian Government Solicitor Date of Hearing: 13 February 2007 Date of Judgment: 8 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/871.html