Case: McDonald v Director-General of Social Security (1984) 1 FCR 354
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) 20 Nevertheless, the Federal Magistrate went on to conclude at [21] and [22]: "Reading its reasons carefully, however, and noting that it should avoid the "onus" terminology (see McDonald v Director-General of Social Security (1984) 6 ALD 6), I am prepared to conclude in the present case that the MRT has indeed simply embarked upon its task in a way which led it to a conclusion that it was not satisfied that the evidence before it would allow it to conclude that the relationship in this instance was one of a genuine and continuing married relationship as required by law. Although in paragraph 40 of its decision the MRT states it is "unable to reach a finding that the applicant was the spouse of Ms Khan at the time of lodgement of the primary application", it did so, unfortunately, in the context of that same paragraph where it referred to the "commonsense burden of establishing the facts". Although that is an unfortunate occurrence in terms of the reasoning and the manner in which the MRT has expressed its findings, I am not prepared to conclude that it has in reality done anything more than indicate that it was not satisfied that the appropriate relationship existed as required by law. It seems to me that that principal finding in paragraph 36 of the MRT's decision is not tainted or indeed rendered fatal by the subsequent discussion of the law in relation to a burden of proof. Indeed, it may simply be that the MRT was grappling with the concept of burden of proof against the backdrop of correctly reciting appropriate authorities where it is clear that the application of the rules related to onus of proof are not appropriate for the tribunal and where it is clear that in all the circumstances the MRT had after reciting the arguments advanced on behalf of the applicant who was represented simply made appropriate findings that it was not satisfied in relation to the key issue to be resolved, namely whether or not the applicant and the nominator were in a relationship of a kind required by law for the purposes of the visa application. It had after all considered the statutory declarations and other material before it and did so in the course of its reasoning as required." 21 Having made the findings set out above, in relation to [36] of the MRT's reasons, his Honour concluded that it was unnecessary to go any further and consider the remaining grounds of appeal. These additional grounds challenged the MRT's findings regarding the statutory declarations and the police reports. They contended that the MRT had erred in failing to be satisfied that the domestic violence exception was made out. 22 Mr Horan, who appeared on behalf of the appellant, pro bono, referred firstly to the relevant provisions of the Regulations . These are set out at length at [7] of the Federal Magistrate's reasons for judgment, and it is unnecessary to replicate them here. 23 It is sufficient, for present purposes, to note that cl 820.211(2)(a) of Sch 2 requires that, at the time of application (in this case 12 April 1999), the applicant must be the spouse of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. Under reg 1.15A, a person is the "spouse" of another person if the two persons are in a married relationship within the meaning of sub-reg (1A). They must be married to each other under a valid marriage, and the Minister must be satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship is genuine and continuing, and that they live together, or do not live separately and apart, on a permanent basis. 24 In forming an opinion as to whether the two persons are in a married relationship, the Minister must have regard to all of the circumstances of the relationship including, in particular, the matters prescribed by reg 1.15A(3) relating to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of their respective commitment to each other. 25 Mr Horan submitted that, in the present case, the MRT had been required to make a finding as to whether the appellant was relevantly the "spouse" of the nominator within the meaning of reg 1.15A. That, in turn, required the MRT to make a finding as to whether their relationship was genuine and continuing, as at the time of application, and in doing so to take into account the matters set out in reg 1.15A(3). 26 Mr Horan submitted that the MRT did not make a finding, on the evidence, as to these matters. It simply concluded that, in the absence of "reliable" evidence, it was unable to "reach a finding on the critical issue", as expressed in [40] of its reasons for decision. He submitted that when the MRT's reasons for decision were read as a whole, it was apparent that it had impermissibly imposed a burden of proof upon the appellant, and thereby committed jurisdictional error. 27 In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof. 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. 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."