Case: Huang v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 901
Outcome: followed
Mr Horan referred to, and relied upon, what he submitted was an analogous case, Huang v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 901 (" Huang ") at [21]-[26]. In that case, Drummond J set aside a decision of the Immigration Review Tribunal ("the IRT") (the predecessor to the MRT) the reasoning of which had been in very similar terms to that of the MRT in the present case. Mr Horan submitted that, contrary to the judgment of the Federal Magistrate below, the MRT's finding in this case was tainted by its failure properly to grasp the principles applicable to administrative proceedings, at least in relation to matters such as the incidence of the burden of proof. 33 In Huang , the question that arose for determination was whether the IRT's comments, in its reasons for decision, indicated that it had disposed of the case against the applicant by deliberately refraining from making findings on relevant matters. It was said to have done so because it considered that the responsibility for clarifying the relevant facts rested with the applicant, and she had failed to discharge the onus she bore in that regard. 34 The particular passage at [25] in the IRT's reasons for decision that gave rise to this issue was the following: "An applicant for a visa needs to satisfy all of the criteria set out in the legislation for that visa. If the Tribunal is uncertain or unable, on balance, to find whether the facts exist to entitle the Applicant to the visa sought, a decision is to be made against her (see Re Ferreras , IRT Decision 299, 2 September 1991)." 35 The IRT went on to say that the visa applicant, "on balance", had been unable to satisfy the particular requirements of the Regulations . 36 Speaking of these passages, Drummond J stated at [18]-[26]: "The respondent submitted that the significance of what the Tribunal said in par [25] was to be found in s 65 of the Act. Before the decision-maker (whether that be the Minister, his delegate or the Tribunal) is entitled to grant a visa of the kind sought by the applicant, the decision-maker must be satisfied, among other things, that the other criteria (ie, other than the health criteria) for the visa in question that are prescribed by this Act or the Regulations have been satisfied: see s 65(1)(a)(ii). It was then submitted that all the Tribunal did by making the comments in par [25] was acknowledge that the task for it in determining whether to grant the applicant her student visa in accordance with s 65(1)(a)(ii) was to determine whether, at the end of the day, it was satisfied that criterion 560.213 was complied with, which required it to be satisfied that condition 8202 was substantially complied with. It was said that par [25] should not be read as a statement by the Tribunal that it approached the case on the basis that the applicant must fail unless she discharged the persuasive burden of proving to the civil standard of proof the facts necessary to show that this particular criterion and this condition had been complied with, ie, the facts necessary to show that she was entitled to the visa she sought. Respondent's counsel, correctly in my opinion, accepted that common law concepts of onus of proof have no role in proceedings in the Migration Review Tribunal. See McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 - 357, 366 and 369; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 and cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282 - 283. (To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts "on the balance of probabilities arising from the available information before the decision-maker". See Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 at 417 - 420.) These competing submissions necessarily invite the Court to determine just how the Tribunal reasoned its way to dismissing the applicant's application on this ground. I was reminded that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon judicial review by over-zealously seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 272. This principle of judicial restraint applies to all reviewable administrative decisions including those of the Tribunal. But it does not, I think, apply in the same way to all such decisions. The rigour with which it constrains a court in examining a decision-maker's reasons will reflect the nature and role of the particular decision-maker. Members of the Migration Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal is a specialist decision-maker charged with reviewing lower-level administrative decisions. The obligation imposed by s 368 of the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error of the kinds listed in s 476 of the Act. In Re Ferreras [1991] IRTA 299 (2 September 1991), the Immigration Review Tribunal reviewed the refusal to grant the applicant a visitor visa. It set out in par [7] of its reasons the criteria prescribed for the grant of such a visa and, in pars [11] to [13], turned to two of those criteria, saying: "Criteria J and K comprise what is now commonly classified as the 'bona fides' requirement. They effectively prescribe that the Tribunal must be satisfied on the balance of probabilities that the principal's proposed visit to Australia is 'genuine' and not intended to enable her to become a permanent resident of Australia" The Tribunal then went on to consider various decisions in the Administrative Appeals Tribunal and a decision of Fox J in this Court. It concluded that the effect of these decisions was summed up in a dictum in the Tribunal to the following effect: "... 'as a matter of common sense', to use His Honour's words, he who asserts, or 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." This dictum deals with both the incidence of the persuasive burden of proof and the standard to which proofs must rise to justify a finding of fact. The Tribunal noted the decision of the Full Court in McDonald and said, erroneously, that: "The result flowing from the Court's dicta however do not appear to be much different from that raised by the decisions referred to above.". The Tribunal concluded: "... When the whole of the evidence has been considered against the statutory requirements and a 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. In the context of the instant case if having carefully considered the whole of the evidence, the picture is still unclear as to whether there exists an intention to make a 'genuine' visit such that the Tribunal on the balance of probabilities is not able to make a finding in this regard then the criterion has not been satisfied and the application for the visa must fail." However, the tenor of the decision in Re Ferreras is that, though it may be inappropriate to speak of a party bearing a persuasive burden of proof as does a party to litigation in the courts, the practicalities are that in proceedings in the Tribunal the visa claimant has the onus of proving, on the balance of probabilities, the facts fundamental to satisfying the statutory criteria for the visa and will fail if that is not done. For the reasons given, such an approach is wrong. It is difficult to know from the reasons given by the Tribunal just how it reasoned its way to its ultimate conclusion against the applicant. But having referred to Re Ferreras , it may well be that it followed the erroneous approach suggested in that case and regarded the applicant as bearing the persuasive burden of proof to the civil standard of all facts necessary to enable the Tribunal to determine whether it was satisfied that the applicant was entitled to the student visa in question." 37 Mr Horan submitted that the MRT, in the present case, had fallen into exactly the same error regarding the onus of proof as did the IRT in Huang . He submitted that: "... the error in the Tribunal's approach, and its misunderstanding of the legal principles, cannot be overcome by a "fair reading" of the Tribunal's reasons for decision. The Tribunal impermissibly imposed on the appellant a persuasive burden in relation to establishing that his relationship with the nominator was genuine and continuing at the time of application. The reference by the Tribunal to "the 'common sense' burden of establishing facts" was more than simply "unfortunate". It is an indication of serious error made by the Tribunal in performing the task entrusted to it." (footnote omitted) 38 Mr Horan next anticipated the reply that the respondent Minister was likely to make, assuming that his primary submission was successful. He recognised that it would be submitted that even if the MRT had fallen into the error identified, it had correctly found that the appellant could not meet the criteria to be satisfied at the time of the decision, under cl 820.221 of Sch 2, which require an applicant for a spouse visa to continue to meet the requirements of the applicable subclause, unless a relevant exception exists. The only relevant exception that could be invoked was that relating to domestic violence. The Minister could be expected to submit that it would be futile to remit this matter to the MRT for rehearing, given that its findings regarding the statutory declarations and the police records were unassailable. In other words, the appellant's application was certain to be rejected because it could not meet the requirements of reg 1.26 and reg 1.24(2)(a)(ii). 39 As previously indicated, the Federal Magistrate did not consider any of the grounds of appeal that related to the statutory declarations and police records. That was because his Honour found no error on the MRT's part in relation to the burden of proof, and that put an end to the appellant's case. 40 Mr Horan submitted that if the MRT did err by improperly imposing upon the appellant the burden of proof to establish that his relationship with the nominator was genuine and continuing, at the time of the application, the matter should be remitted to the MRT to be heard and determined according to law. He submitted that it would not be futile to remit the matter because the MRT, acting correctly, might well conclude that the requirements regarding the statutory declarations and the police records had been met. 41 In that regard, Mr Horan noted that the relevant provisions of the Regulations , and in particular cl 820.221(3) of Sch 2, created an exception to the general requirement that, in order to satisfy the criteria for the grant of a sub-class 820 visa, the applicant must be the "spouse" of the nominator at the time of decision. Normally, this must be at least two years after the date of application. 82 It is difficult to distinguish the reasoning of the MRT that is impugned in the present case from that of the IRT, which was held by Drummond J, in Huang , to be flawed. Indeed, in both cases, the relevant tribunal adopted precisely the same formulation of the law governing the burden of proof in administrative review: see Huang at [22], and compare [38] of the MRT's reasons for decision. 83 Ms Riley submitted that Huang did not decide, as a matter of ratio, that the language used by the IRT in that case demonstrated that it had determined the case erroneously, on the basis that the applicant carried a persuasive burden of proof. That was because Drummond J went on to find that the IRT's reasons for decision were also erroneous in other respects, and his Honour did not specifically state that the application for review, that was granted, was allowed on the basis of a mistaken allocation of the burden of proof. 84 I am not persuaded by this submission. Drummond J made it abundantly clear, in Huang , when he concluded that there was reviewable error under s 476 of the Migration Act 1958 (Cth), that the IRT's entire approach to the burden of proof was misconceived. The fact that his Honour found several additional errors in the IRT's reasons for decision, any one of which would have been sufficient to vitiate that decision, does not mean that what he had to say about its treatment of the burden of proof amounted to mere dicta. 85 In any event, even if Drummond J's observations were dicta, they were certainly carefully reasoned, and are worthy of serious consideration. The principle of comity would suggest that I should follow his Honour's analysis unless persuaded that it was wrong. Far from being so persuaded, I consider what his Honour said to have been correct. 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. 87 Of course, the MRT in this case had to be satisfied of the various matters set out in the Regulations before it could grant the appellant the spouse visa that he sought. However, it is one thing to recognise that a statute requires that a state of satisfaction be reached. It is altogether another thing to approach the question whether such satisfaction has been achieved by asking whether an onus of proof has been discharged. The latter reflects an approach that is curial, rather than inquisitorial. As Huang makes plain, a decision maker who adopts such a curial approach asks the wrong question. 89 In my view, the observations of Drummond J at [20] in Huang regarding Wu Shan Liang apply with equal force to the present case. The MRT was plainly confused about the distinction between the onus of proof in curial proceedings, and how a decision maker determines facts in administrative review. That confusion was most clearly manifested by its discussion at [40] of its reasons for decision. The reference to "common sense" (which is in fact a term used to explain the axiom that "he who asserts must prove", in a curial context), was invoked by the MRT, mistakenly, to explain, and justify, a finding made in an entirely different, and purely administrative context. 93 It follows that I disagree, with respect, with the learned Federal Magistrate who concluded that the MRT's decision, though somewhat confused, could nonetheless be saved by application of the principles set out in Wu Shan Liang . His Honour did not have the benefit, as I did, of being referred to the judgment of Drummond J in Huang . Had that case been drawn to his attention, he may well have come to a different conclusion. I would therefore uphold the various grounds of appeal that raise the MRT's treatment of the burden of proof as the basis for challenge.