Case: Bretag v Immigration Review Tribunal (unreported, O'Loughlin J, 29 November 1991)
Outcome: considered
As to the question of evidence of subsequent events, I have considered the case of Bretag v Immigration Review Tribunal (unreported, O'Loughlin J, 29 November 1991) (' Bretag '). In that case, the Tribunal had to answer the question of whether two persons in a relationship had a mutual commitment to the exclusion of others. The Tribunal had to determine the question at a particular point in time but made reference to evidence about subsequent events in assessing whether at the relevant time the relationship was exclusive. In reviewing the decision of the Tribunal, the court found that the Tribunal's undue reliance on the evidence of subsequent events disclosed error. The court did not hold that, in all circumstances, evidence of subsequent events was a relevant consideration which the legislation required the Tribunal to consider. Rather, the court held that in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. As stated by O'Loughlin: It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE 7 February 1990. But the evidence of the subsequent history is only relevant so long as it tends to logically show the existence or non-existence of facts relevant to the issue to be determined. 37 However O'Loughlin J, in finding error in the Tribunal's reasoning process, explained that the Tribunal must be careful not to attribute too much weight to the evidence of subsequent events: In my opinion the Tribunal erred in law. It correctly identified the test that it had to apply, that is, the "Dhillon test", but having made that correct decision it erred in law by permitting itself to be influenced inappropriately by events that occurred subsequent to the events subsisting at the time of the application...The duty of the Tribunal was to assess the personal circumstances of the applicant and her husband as they existed at the time when the application for the PEPAE was made, that is, as at 7 February 1990. In terms of the "Dhillon test", the dominant question was this: as at 7 February 1990, can it be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others. It was a misconception of the limited evidence on the subject of Mr Bretag's state of mind to draw an inference that his relationship to the applicant was not, on that date, either genuine or continuing. ... I have concluded that the Tribunal did not use subsequent events as an aid to determine the existence or non-existence of facts that were relevant to the issue (in the manner permitted by Pochi's case); rather, it permitted itself to be influenced inappropriately by the resumption of the relationship between Mr Bretag and Leanne some two months after this marriage to the applicant. 38 Contrary to the submissions of the appellant, the relevant regulations I am considering clearly focus attention at the time of application. The only relevance of Bretag is the extent to which evidence may impact upon that assessment, and particularly evidence of subsequent events. In my view, the Tribunal here undertook its task in looking at all the material before it, both at the time of application and thereafter. No error of the type identified in Bretag has occurred here.