The Appellant's contentions on appeal
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) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission (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.
28 Mr Horan argued that when the MRT asserted that there was "no reliable evidence… regarding the pooling of financial resources or the sharing of household expenses" or "the domestic and social aspects of the relationship" and "no independent reliable evidence attesting to the state of relationship from family or friends", it was essentially determining the issue before it, not on the basis of the evidence as it stood, but rather on the basis of the absence of evidence that might have been presented. Indeed, the MRT, at [36] of its reasons for decision, described the position presented to it as "lacking the evidence relating to the indices of such a [genuine and continuing] relationship as set out [in] regulation 1.15A of the Regulations".
29 Mr Horan supported this argument by noting that the MRT did not, explicitly, reject the appellant's evidence regarding his relationship with the nominator. Indeed, it stated, at [36], that it was "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". In Mr Horan's submission, it was simply the lack of independent, reliable evidence that led the MRT to reject the appellant's claim, and that was essentially because he had not discharged the onus that the MRT had wrongly required him to carry.
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.
31 Finally, Mr Horan submitted that irrespective of whether the MRT had, at one point, formulated the law correctly when it stated that an administrative tribunal should not determine matters by applying the rules relating to onus of proof, it had plainly gone badly wrong by what it ultimately said in [40]. At [40], the MRT's reasons were to the effect that the appellant had failed because he had not "discharged the 'common sense' burden" that rested upon him to establish the facts necessary to enable the MRT to reach a finding on the critical issue. He noted that the MRT had not gone on to say that it was not satisfied that the appellant was the spouse of the nominator at the time of lodgement of the primary application, but had merely stated that it was "unable to reach a finding" on that point. He submitted that, couched in those terms, it was clear that the MRT had, improperly, imposed upon the appellant a persuasive burden of proof. This, he submitted, amounted to jurisdictional error.
32 Mr Horan referred to, and relied upon, what he submitted was an analogous case, Huang v Minister for Immigration & 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) 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) 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.
42 An applicant will meet the requirements of cl 820.221(3) if the marital relationship is no longer continuing, and, relevantly, "the applicant … has suffered domestic violence committed by the nominating spouse": see cl 100.221(4)(c)(i). A reference to a person having suffered, or committed, domestic violence is a reference to a person being taken under reg 1.23 to have suffered or committed such violence. Relevantly, reg 1.23(g) provides that an alleged victim is taken to have suffered domestic violence committed by an alleged perpetrator if the alleged victim presents evidence that meets the requirements of reg 1.24. Regulation 1.24, in its entirety, provides as follows:
"1.24 Evidence
(1) The evidence referred to in subparagraph 1.23 (1A) (b) (ii) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory (other than a statement by the alleged victim); or
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a) the same subparagraph of paragraph (a) of the definition of competent person; or
(b) subparagraph (b)(ii) of that definition."
43 The expression "competent person" is defined in reg 1.21(1). That expression includes a medical practitioner, and a social worker.
44 Regulation 1.23(2)(b) provides that in reg 1.23(1)(g):
"1.23 When is a person taken to have suffered or committed domestic violence?
…
(2) In subparagraph (1A) (b) (ii):
…
(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety."
45 Mr Horan submitted that under reg 1.24, the evidence required to support a finding that a person is taken to have suffered or committed domestic violence is a statutory declaration by the alleged victim under reg 1.25(1), together with either a statutory declaration by a competent person under reg 1.26, and a copy of a police record of an assault on the alleged victim allegedly committed by the alleged perpetrator, or two statutory declarations by competent persons under reg 1.26.
46 As previously indicated, the MRT found that the statutory declarations of Dr Van Dort and Ms Fraser did not satisfy the requirements of reg 1.26. It will be necessary, therefore, in order to understand Mr Horan's submissions, to turn to those documents in some detail.
47 Dr Van Dort made his statutory declaration on 12 August 1999. He stated that on 28 June 1999, he had attended a man who identified himself as the appellant. The man related having problems with his wife, an Aboriginal lady with an alcohol problem. He stated that when under the influence of alcohol, which was most of the time, she was violent towards him, and to his property. He said that he had reported the matter to the police, and showed Dr Van Dort a police report. He also showed Dr Van Dort photographs of two cars which showed the windows and front and rear windscreens damaged. The man was distressed, and Dr Van Dort felt that he was depressed. He prescribed medication. Prior to that visit, Dr Van Dort had never met the appellant. In his own words, "the history is wholly as he related it to me".
48 Mr Horan submitted that it was "implicit" in Dr Van Dort's statutory declaration that he was of the opinion that the appellant had suffered domestic violence, and that the nominator had committed that violence.
49 Ms Fraser made two statutory declarations. The first on 9 August 1999, and the second on 12 December 2003.
50 In the first statutory declaration she stated that she had seen the appellant, in her capacity as a counsellor at the Curtin University Counselling Services on 5 July 1999. Mr Ejueyitsi had presented her with a written referral from Dr Van Dort requesting that the University Counselling Services provide "counselling and guidance". In her own words, Ms Fraser said:
"Mr Ejueyitsi presented to me with symptoms of stress related to what he defined as a situation of domestic violence. Mr Ejueyitsi claimed to have been subjected to physical and emotional abuse by his wife Nola.
Mr Ejueyitsi was given assistance in the area of stress management and was offered a further counselling appointment with me as required".
51 In her second statutory declaration, dated 9 August 1999, Ms Fraser stated:
"When Mr Ejueyitsi consulted me on 5 July 1999, he referred to 2 specific incidents of domestic violence committed against him by his wife Nola, the first incident involved Nola violently and extensively damaging 2 cars belonging to him, the second incident involved Nola threatening him with a knife. There were other more general comments made by him with respect to Nola's behaviour.
I confirm that both now and at the time I made the declaration on 9 August 1999 I was and am currently recognised by the Australian Association of Social Workers as eligible to be a member of that Association. I further confirm that in seeing Mr Ejueyitsi on referral and in providing my previous declaration I was performing the duties of a social worker."
52 Once again, Mr Horan submitted that it was "implicit" in Ms Fraser's two statutory declarations that she was of the opinion that the appellant had suffered domestic violence committed by the nominator. He submitted that in considering whether a statutory declaration contains the requisite opinion, it must be read fairly, and should not be "scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed": see Kozel at [30] per Ryan J. He submitted that in many, if not most, cases, the competent person would have no direct knowledge of the applicant's relationship with his or her spouse, and would therefore be in no position to do other than recount the history given by that person. Even if there were objective signs of violence having been inflicted, it would be difficult for a doctor, or a social worker, to proffer an opinion that the injuries in question had been inflicted in the course of domestic violence, still less that a particular person had inflicted them. He submitted that the Regulations should be construed benevolently, having regard to their evident purpose, which was to allow persons who had been subjected to domestic violence, and forced to live apart, to maintain a claim for a spouse visa. He further submitted that the Regulations should not be construed so as to require the competent person to act as an investigative, or fact finding body, a task which many such persons would either eschew, or not be qualified to undertake.
53 In that regard, Mr Horan submitted that Dr Van Dort, in his statutory declaration, had stated that he had been given an account of the domestic violence suffered by the appellant, and committed by the nominator, and that he had been shown corroborating evidence in the form of police reports and photographs. It was in that context that Dr Van Dort stated that the appellant "was distressed and I feel that he was depressed". In those circumstances, Mr Horan submitted, it was by no means difficult to infer that Dr Van Dort was stating an opinion that the appellant had suffered domestic violence, as required by reg 1.26, and that he held the opinion that this had been inflicted by the nominator. The same could be said of Ms Fraser's statutory declarations.
54 Mr Horan noted that the conduct of the nominator, as described by the appellant, was capable of amounting to domestic violence within the meaning of the Regulations. It involved violence against the appellant's property, and at least the implicit threat of violence against him. It must have caused him to fear for, or to be apprehensive about, his personal well-being or safety.
55 Mr Horan submitted that, in the event that only one of the statutory declarations met the relevant requirements, the MRT erred in finding that the police records (consisting of a computer system despatch extract, and a handwritten action report) did not fall within reg 1.24(a)(2) because those records did not refer to any assault upon the appellant.
56 The computer system despatch extract refers to a complaint on 24 May 1999 at 2.13am. It is brief in the extreme. It merely states that the complainant "was woken by his [redacted] with a knife in [redacted] hand". It goes on to say that someone, or something (the letters "APP" appear), "has caused a lot of damage at the house and that the complainant ran out and rang from a phone box".
57 Although words have been redacted from the copy of the computer system despatch extract, obtained under freedom of information legislation, Mr Horan submitted that it could readily be inferred that the complaint was about the nominator. That conclusion was said to be open on the basis that the incident had occurred in the home at 2.13am. Moreover, there appeared to be no record, on the document, of any follow up investigation, a common characteristic of complaints involving domestic violence. Mr Horan submitted that, on any view, the concept of an assault extends to conduct which causes a person to fear physical violence. An attack upon two vehicles which causes substantial damage, in the presence, actual or constructive, of the appellant, could, on that basis, constitute an implied threat, and therefore an assault at common law.
58 The handwritten action report described the steps taken by the police who attended at the premises in the early hours of 24 May 1999. The report said that the police spoke to the appellant and his wife "who had been arguing over an alleged affair and decided to separate". It said that the wife had damaged two vehicles prior to their arrival. It recorded that the appellant had collected some of his property, and then proceeded to drive to a friend's house.
59 Mr Horan submitted that if either the computer system despatch extract, or the action report, did in fact fall within reg 1.24(1)(a)(ii), there would only need to be one statutory declaration from a competent person in order to satisfy 1.24(1)(a).