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How Much Will Full Court's Decision in He Change Things? We'll See!

Is the recent (December 2017) decision of the Full Court in He v Minister for Immigration and Border Protection (2017) FCAFC 206 a complete “game changer” when it comes to partner visa applications?

Does the He decision mean that the Tribunal must expressly and specifically refer to each and every one of the “circumstances of the relationship” that are listed in Regulation 1.15(A)(3)?

Or is it “good enough” (that is, “good enough” to prevent the Tribunal’s decision from being “quashed” or “set aside” if it is apparent from the Tribunal’s decision record that the Tribunal has “considered” all of the circumstances that are listed in Regulation 1.15(A)(3) – even if the Tribunal does not discuss each and every one of these circumstances expressly and specifically?

This question was addressed by Judge Vasta of the Federal Circuit Court in the case of Fabian v Minister for Immigration & Anor (2018) FCCA 434 (2 March 2018).

While decisions of one judge of the Federal Circuit Court are not “binding" on other judges (unlike decisions of the Federal Court, the Full Court, or the High Court, which are binding on the FCC), generally speaking, judges of the FCC do follow the rulings of their colleagues on the bench of the FCC unless they consider them to be “clearly wrong” – under principles of what are called “judicial comity”. 

So Judge Vasta’s decision in Fabian suggests that the Full Court’s decision in He may not be quite the “game changer” it appears to be.  We’ll just have to see whether other judges of the FCC accept that Fabian was correctly decided.

It appears possible that Judge Vasta’s decision in Fabian does depart from He.

 In He, the Full Court held appeared to hold, at paragraphs 78 – 79 o its reasons, that the Tribunal should make findings as to every one of the “circumstances of the relationship” that are listed in the “Roman numerals” of Regulation 1.115(A)(3) – and that if it does not do so, then that “failure” may give rise to an “inference” that the Tribunal did not “consider” that matter.

However, Judge Vasta stated in Fabian that the decision of the Full Court in He makes “clear” that the findings as to the 15 separate matters listed under the Roman numerals in Regulation 1.15(A)(3) may be made “either expressly or inferentially”.

For example, Regulation 1.15(A)(3)(a)(i) – (v) specifies that the following matters must be considered in relation to the financial aspects of the relationship:

  • Any joint ownership of real estate or other major assets;
  • Any joint liabilities;
  • The extent of any pooling of financial resources, especially in relation to major financial commitments;
  • Whether one person in the relationship owes any legal obligation in respect of the other; and
  • The basis of any sharing of day-to-day household expenses.

The decision in He indicates (in my view) that the Tribunal must  make express and specific  findings in reference to each of these matters – the Full Court’s decision in He states that findings must be made : “even if the finding is that no conclusion can be reached upon the matter”.

It doesn’t appear that there is any language in He that would allow the Tribunal not to go “step-by step” through each of the matters listed in the Roman numerals of He  and not to make express findings as to each of those matters.

However, it does not appear (from the court’s discussion of the Tribunal’s decision in Fabian) that the Tribunal did in fact go through such a systematic process of fact-finding.

In Fabian, Judge Vasta accepted that since the Tribunal had referred to evidence that: the applicant and the sponsor had pair rent and had signed a lease; that the applicant and sponsor had bills which were paid; that the applicant made payments for groceries, food and petrol, etc.; and that there was “some evidence of sharing/pooling of financial resources” that it could be “inferred “ that the Tribunal had made findings on all five matters listed in 1.15(A)(3)(a)(i) – (v).

However, from reading the court’s decision, it doesn’t seem as though the Tribunal did make any finding, for example, on the question s of whether there was joint ownership of major assets such as real estate, or whether one person in the relationship owed any legal obligations in respect of the other.

So, is it “good enough” that findings as to the circumstances of the relationship have been dealt with by the Tribunal “inferentially”?

And is the Full Court’s decision in He truly a “game changer”?

We shall see! Stay tuned!

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