Case: Bretag v Immigration Review Tribunal (unreported, Federal Court of Australia, O'Loughlin J, 29 November 1991)
Outcome: cited
The Federal Magistrate did not accept that the Tribunal failed to make findings in relation to the financial aspects of the relationship and the nature of the household. His Honour accepted that the Tribunal did have regard to those matters as required by Regulation 1.15A(3)(a) and (b) and that the Tribunal had considered the major issues raised and evidence adduced on behalf of the appellant. Further, the Federal Magistrate found that the Tribunal was not precluded from having regard to events which occurred subsequent to the date of the visa application. He relied on Bretag v Immigration Review Tribunal (unreported, Federal Court of Australia, O'Loughlin J, 29 November 1991) as authority for this point. His Honour held that "[i]t is ultimately a matter for the Tribunal to make an assessment of the facts and it is entitled to express that assessment in what might be otherwise regarded as somewhat pejorative terms" such as there being "little evidence" to support a claim. 18 His Honour found that there was no jurisdictional error arising from the weight that the Tribunal gave the evidence when it considered "the voluminous material relied upon by the Applicant" in relation to the social aspects of the relationship. The Federal Magistrate found "no error in the manner in which the Tribunal approached its task having regard to the obligation set out in [Regulation 1.15A3(c)]." 19 The Federal Magistrate noted that the determination of the nature of persons' commitment to each other was "no doubt a very difficult issue for Tribunals to assess." His Honour accepted that the Tribunal was entitled to take into account "the absence of evidence of living arrangements and specifically those arrangements which might reveal whether the parties shared a bedroom or ... had lived together "as husband and wife". The Federal Magistrate found that it "was a matter entirely for the Tribunal to make a finding of this manner." His Honour confirmed his earlier view that "in considering circumstances at the time of the application the Tribunal as a matter of law is entitled to consider and as a matter of logic in many cases compelled to consider subsequent events and circumstances when making an assessment of" the nature of the persons' commitment to each other. (Emphasis added). 20 The Federal Magistrate noted that, although the findings in relation to this criterion were brief, he accepted that those findings "were made after a fairly detailed assessment of the matters referred to by the Respondent pursuant to the various sub-regulations". The Federal Magistrate noted that there appeared to be a lack of corroboration of the assertion by the appellant that the parties did live together as husband and wife and again that it was "a matter entirely for the Tribunal to make an assessment of evidence of this kind which it has done in a manner free of error." 21 The Tribunal found that the nominator did not have a commitment to a shared life with the appellant to the exclusion of all others at the time of the application. This finding was partly based on the nominator's statements to the Department, which were unable to be tested, as the nominator had not deposed to the statements and did not appear as a witness. The Federal Magistrate accepted, as a matter of law, that the evidence before the Tribunal could include material that was not the subject of evidence on oath. His Honour held that there was "no principle of law which requires the Tribunal to prefer evidence on oath over and above other evidence although normally one might expect evidence on oath which may be tested to have a higher value." In the Federal Magistrate's view, the Tribunal was entitled to take into account all the evidence before it and the findings made by the Tribunal were reasonably open to it on the evidence before it. 22 The Federal Magistrate found that the Tribunal's findings in relation to the failure of the applicant to provide evidence in support, by the nominator's family, of the relationship, were made free of error. His Honour found that this evidence was relevant, and that, in having regard to it, the Tribunal did not make a jurisdictional error. 23 The Federal Magistrate found that the Tribunal had complied with the requirements of s 359A of the Act: the Tribunal had explained "in clear terms" the relevance of the information; the information was properly relevant to the obligation under s 359A of the Act; "the information was a reasonable part of the reason for the Tribunal's decision"; and the information did not fall within any of the exceptions under s 359A(4) of the Act. 24 As each of the grounds for judicial review failed, the appellant's application was dismissed. 25 The notice of appeal to this Court was filed on 12 February 2008. The grounds relied on in the appeal are substantially the same as those relied on before the Federal Magistrate. They are that: 1. The Federal Magistrate erred in finding that the Tribunal had made findings in relation to "financial aspects of the relationship" and "the nature of the household" (see Grounds 3 and 4 of the application to the Federal Magistrates Court). 2. The Federal Magistrate erred in finding that no jurisdictional error arose from the weight the Tribunal had afforded the evidence in relation to the social aspects of the relationship. Further, the Federal Magistrate erred in failing to consider the appellant's case that there was no evidence to support the Tribunal's finding on this issue and that the finding was based on conjecture (see Ground 5 of the application to the Federal Magistrates Court). 3. The Federal Magistrate erred in finding that the Tribunal was not in error in having regard to the absence of evidence and subsequent events in relation to the nature of the appellant's and the nominator's commitment to each other. Further, the Federal Magistrate erred in failing to consider the appellant's case that: a) there was sufficient evidence, at the time the appellant's application was made, of the appellant's and the nominator's commitment to each other, for the purposes of regulation 1.15A(d) of the Regulation; and b) the Tribunal's findings in relation to this issue were made in the absence of evidence (see Ground 6 of the application to the Federal Magistrates Court). 4. The Federal Magistrate erred in failing to address the appellant's application ground that the Tribunal failed to consider the evidence when it made its finding concerning whether and, if so, the length of time during which the appellant and the nominator lived together (see Ground 7 of the application to the Federal Magistrates Court). 5. The Federal Magistrate erred in failing to address the appellant's application ground that, in relation to its findings concerning the appellant's and the nominator's mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal failed to consider the appellant's evidence, engaged in speculation and gave significant weight to evidence that post dated the appellant's application (see Ground 8 of the application to the Federal Magistrates Court). 6. The Federal Magistrate erred in failing to respond to the appellant's ground that there was no evidence to support the Tribunal's findings and the Tribunal relied on irrelevant material (see Ground 9 of the application to the Federal Magistrates Court). 7. The findings of the Federal Magistrate in relation to the appellant's ground that the s 359A letter did not respond to the appellant's grounds of appeal in relation to that issue (see Grounds 1 and 2 of the application to the Federal Magistrates Court). 8. The Federal Magistrate erred in stating that the "great deal" of references to the transcript of Tribunal hearing had been made in an attempt to encourage the Federal Magistrates Court to revisit the merits of the application. 26 Under this ground the appellant complains that the Federal Magistrate had been in error in finding that the Tribunal had, in fact, made findings in relation to the financial aspects of the relationship between the appellant and the nominator and on the nature of their household. In its reasons the Tribunal had dealt with these two issues under discrete headings. In dealing with the financial aspects of the relationship it had referred to evidence about the financial positions of the appellant and the nominator, the existence of a joint account, the way in which household expenses were paid and the receipt, by the nominator, of money from her mother. The Tribunal found that there was little evidence that the parties had combined their financial affairs at the time at which the appellant had applied for the spouse visa. It noted that the nominator had continued to receive financial support from her family for her own use. The evidence relating to the nature of the household was sparse. The Tribunal noted that the flat in which the appellant and the nominator lived after they had left the nominator's parents home had two bedrooms and that the appellant claimed that he had done the housework. No findings in terms were made. 27 The argument advanced by counsel for the appellant at the hearing differed from that suggested in the notice of appeal. As argued, the appellant's complaint was not that no findings were made but rather that, in dealing with these two matters, the Tribunal had directed its attention to financial and domestic arrangements between the appellant and the nominator in the weeks and months after the appellant's application had been made. 28 The Tribunal's reasons clearly state that it was directing its attention to the arrangements between the appellant and the nominator at the time 29 March 1999 when the visa application was made. At that time the appellant and the nominator were living with the nominator's parents. At that time any joint financial dealings were at an embryonic stage. There was no joint household. The Tribunal looked to subsequent events in an effort to make a judgment about what the relevant arrangements were at the end of March 1999. This it was entitled to do: see Bretag v Immigration Review Tribunal (unreported Federal Court of Australia, O'Loughlin J, 29 November 1991). It was a matter for the Tribunal to determine the weight to be accorded to the limited evidence which was presented to it. 29 The Tribunal dealt with the social aspects of the relationship between the appellant and the nominator in another, discrete, part of its reasons. It noted that they had been married in a traditional religious ceremony. It took into account the evidence of friends of the appellant as to their observations about the relationship between the couple and their friends. The Tribunal, however, noted the absence of any evidence from the nominator or her family to support the visa application or the review application. It therefore observed that there was "limited evidence of support for the relationship from family and friends who attended the wedding." 30 There can be no doubt that the Tribunal took into account the social aspects of the relationship between the appellant and the nominator. The weight it gave to the evidence was a matter for it.