Case: Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196
Outcome: referred to
The MRT stated, as its reason for refusing the appellant's application: "36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant's move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described [sic] as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations . 37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal ('AAT') [sic] and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not 'seek to determine matters ... by strict application of the rules related to onus of proof', Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that 'regard must be had to the application of those rules ... in determining which party has the responsibility of satisfying the Tribunal as to any given fact '. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that, 'the term 'onus of proof' (or 'burden of proof') ... was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result' 38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that, 'as a matter of common sense', to use His Honour's words, he who asserts, or he seeks a result, must prove . Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.' (emphasis added) 39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court's dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. 40. The Tribunal finds that the Applicant has not discharged the 'common sense' burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application ." (emphasis added) 30 Mr Horan recognised that the MRT had expressly acknowledged at [37] of its reasons for decision that it should not "seek to determine matters ... by strict application of the rules related to onus of proof", and had cited authority for that proposition. He noted, however, that that statement, which was itself unexceptionable, was immediately followed by the various references to onus of proof, or burden of proof, set out at [37] and [38] of the reasons for decision. He submitted that the MRT's belief that the Full Court's admonition in McDonald to avoid such terminology could be reconciled with the very different approach taken in Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196 and Ladic v Capital Territory Health Commission (1982) 5 ALN N60, the cases to which the MRT referred, indicated that it had not understood the full significance of what the Full Court had said upon this subject.