Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: distinguished
Ms Riley accepted that the notion of proof, as understood in a curial sense, has no role to play in an administrative decision in which the decision maker is asked to be satisfied of a certain matter. However, she submitted that it was also true, as a matter of practical reality, that the decision maker would not be able to be satisfied of a particular matter if there was no evidence, or other material, regarding an important issue, before the decision maker. She referred, in that regard, to Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (" VSAF "), a case in which the applicant had not attended before the Refugee Review Tribunal. In that case, the Full Court saw no error in the Tribunal having proceeded to make its decision without taking any further steps to enable him to attend. The absence of any evidence in support of the applicant's claim enabled the Tribunal to find that it was unable to be satisfied that he had a genuine fear of persecution, or that he had experienced any particular mistreatment or harm. 67 Ms Riley submitted that, in the present case, the MRT's reference to the "common sense" burden, in [40] of its reasons for decision, meant no more than that it could not be satisfied, in the absence of sufficient evidence, that the appellant and the nominator were in a genuine and continuing spousal relationship. It did not mean that the MRT had decided the case on the basis of some failure to discharge a curial onus of proof. 70 Ms Riley next referred to the following passage in VSAF , at [17]: "We are unable to agree with his Honour's statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant's claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal's approach was upheld by a Full Court at [15]: "It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied." See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473." 71 Ms Riley submitted that if the appellant did not put before the MRT material sufficient to enable it to be satisfied of a requisite matter, his visa application had to be rejected. She submitted that in the present case, the MRT, though satisfied that the appellant and nominator had "some form of relationship", expressly stated that it was not satisfied that they had been in a genuine and continuing relationship at the time of the application. She submitted that there was nothing in the MRT's reasoning on this issue that suggested it had misunderstood its statutory task. On the material, it was open to the MRT to arrive at the conclusion that it did. 72 Ms Riley recognised that she might be in some difficulty with regard to the burden of proof issue. She frankly acknowledged that the MRT's language had been unfortunate, and that it had been unwise to speak of the appellant having not discharged the "common sense burden" of establishing the facts necessary to enable it to reach a finding on the critical issue. However, she submitted that when the MRT used this terminology, it had merely expressed itself infelicitously, and had done no more than what VSAF expressly contemplated and approved. 86 Ms Riley then submitted that there was an inconsistency between Huang and VSAF . If that were so, I would plainly be bound by VSAF , that being a decision of the Full Court. However, in my view, there is no such inconsistency. In the present case, the MRT analysed the evidence before it through the prism of the burden of proof. In VSAF , there simply was no evidence upon which the MRT could be satisfied of the requisite matters. 91 Subject to what VSAF had to say regarding the meaning of the term "satisfy" (in the context of a proceeding in which the applicant did not attend the hearing that had been arranged so that he could present his case, and therefore put no material to the relevant tribunal in support of that case), it is plainly wrong for a decision maker to approach an application for merits review by considering whether a persuasive burden of proof has been discharged. 92 I should add that I do not understand the MRT, in the paragraphs that are impugned, to have been endeavouring, in an incomplete way, to distinguish between a legal and evidential burden of proof. Nor do I understand it to have embarked upon an analysis grounded in the mysteries of presumptions of law and fact, and any differences that arise between them. Its error was more fundamental than that, and simply reflected confusion on its part as to how the process of administrative review was to be conducted.