Case: Applicants in V 722 of 2000 v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1059
Outcome: discussed
Mr Gibson noted that the Federal Magistrate had relied upon the judgment of Ryan J in Applicants in V 722 of 2000 v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 1059 (" Applicants V 722 ") in dealing with the ascertainment of foreign law. His Honour's approach was approved, on appeal, by the Full Court in VHAJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 186. 30 In substance, Ryan J held, at [32]-[33], that while findings relating to the law of a foreign country are questions of fact, and therefore susceptible to proof by expert evidence, it is not necessary to resort to such evidence to make "a finding as to the effect of a relevant law of a foreign country". He stated at [33]: "If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly ( Evidence Act (Cth) 1995 s 174(1)). " 31 It should be noted that Ryan J did not stipulate that the only way in which foreign law can be proved is through one of the means set out above. These were examples, rather than an exhaustive statement of the methods of proof that were legally permissible. 32 In any event, Mr Gibson submitted that Ryan J's judgment needed to be understood in context. He contended that, to the extent that his Honour's reasoning might be thought to broaden the types of evidence upon which a finding as to foreign law could be made, Applicants V 722 was distinguishable from the present case on the following bases: "i) the issue requiring an examination of foreign law in that case was the entitlement of the applicants to remain in, or re-enter Italy ii) this was a different issue to that of establishing nationality, and in any event, there were a number of evidentiary matters raising a presumption that they would not be precluded from returning to Italy i.e. long term residence coupled with possession of valid passports endorsed with Australian visitor's visas. The presumption was strengthened by their possession of unexpired Italian temporary residence permits and had pending applications for permanent residence permits. iii) Raising a rebuttable presumption regarding the entitlement of a non-citizen to re-enter a foreign state is not the same thing as establishing that a person holds the nationality of a foreign state, and as the judgment shows a lesser evidentiary basis may suffice in the former situation. iv) The case is otherwise distinguishable on its facts as it was accepted that the passport was valid. Here the First Appellant's case was that his passport and its renewal had been acquired by fraudulent means purchase through the agency of a corrupt policeman by payment of massive bribes without which he would not have been able to secure documentation ... In light of the basis on which his case was put, acceptance by the Tribunal ... that he may have paid some bribes without any further explanation (or rejection of any aspect of this story) totally undermines any prima facie presumption of nationally by reason of the issue and possession of a FYROM passport". 33 Mr Gibson then submitted that nothing said by Ryan J in Applicants V 722 detracted from his central proposition that the issue of nationality, and particularly nationality derivatively acquired, raised a question of fact, and had to be proved. He further submitted that it was no answer for the Minister to contend, as her counsel had, that it had been open to the husband to provide evidence of the relevant law governing nationality in FYROM. He submitted that before the Tribunal could properly make any finding on a critical issue of this nature, it was obliged to ensure that it had sufficient material before it to support such a finding. 34 With regard to the husband's possession of the FYROM passport, Mr Gibson submitted that the Tribunal had acknowledged, and accepted, the husband's account of how he had initially acquired that passport, and later had it renewed. It was always the husband's case that upon the expiry of his former Yugoslav passport, he had managed to purchase a FYROM passport through his contacts with a corrupt policeman. In other words, his claim, which it was submitted had been accepted by the Tribunal, was that he had obtained the passport only through the payment of bribes. It was submitted that whatever weight might ordinarily be given to the possession of a particular passport when considering the question of nationality, no weight could attach to that fact in circumstances where the passport had only been obtained through bribery. 35 Mr Gibson also criticised certain aspects of the reasoning of the Federal Magistrate. At one point, his Honour had put forward the hypothesis that even though the husband may have paid bribes in relation to the passport, it did not necessarily follow that the passport could not provide some evidence of nationality. His Honour's reasoning, implicitly at least, was that the husband may have been entitled to the issue of a FYROM passport, but paid a bribe in ignorance of that fact. Alternatively, the husband may have paid bribes simply in order to speed up the process of obtaining the passport to which he was, in fact, in any event entitled. Mr Gibson submitted that each of these hypotheses consisted of nothing more than speculation and conjecture. He further submitted that they indicated that the Federal Magistrate had failed to appreciate the fact that the case before the Tribunal had been put on a basis that did not admit of any such reasoning. That was because, implicit in that case, was the contention that the husband obtained his passport by bribery, and that he was not legally entitled to one. 36 Mr Gibson therefore submitted that, contrary to the Federal Magistrate's findings, the Tribunal had considered and evaluated the husband's claims against the wrong country. It ought to have carried out its statutory task by reference to Bosnia-Herzegovina, the country of which the husband was an acknowledged national, and not by reference to FYROM, a country in which he had only occasionally resided. 37 Mr Horan, counsel for the Minister, acknowledged that whether the husband was a national of FYROM did indeed raise a question of fact. He submitted that the Tribunal had determined that question of fact lawfully, and in an appropriate manner. It had identified the relevant issue correctly, and had properly concluded, on the basis of the material before it, that the husband was a national of FYROM. 38 Mr Horan submitted that there was, in fact, a substantial body of evidence and other material before the Tribunal to support that conclusion. This included, in particular, the various matters set out in the passage from the Tribunal's reasons for decision extracted above at [8]. He submitted that it could not be said that the Tribunal had failed to address any of the husband's claims, or that it had misconstrued, misunderstood or overlooked any relevant criteria for the grant of a visa. In classic terms, it could not be said that the Tribunal had identified a wrong issue, asked itself a wrong question, ignored relevant material or relied on irrelevant material. 39 Mr Horan submitted that, contrary to Mr Gibson's contention, there were no "irreducible minimum evidentiary requirements" to be satisfied in order to establish that the husband was a national of FYROM. Nor was there any "minimum standard of proof" that had to be met. He contended that Mr Gibson's submission, when properly understood, amounted to nothing more than a claim that there was insufficient evidence to support the Tribunal's finding. Even if that claim could be substantiated, it would not demonstrate the existence of jurisdictional error. The appellants would have to go further, and show that there was "no evidence" to support the Tribunal's finding. This they plainly could not do.