Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 | Case summary

REASONS FOR JUDGMENT 1 Mr Santiago Ortiz is a Spanish citizen. He is also an unsuccessful applicant under the Migration Act 1958 (Cth) (the Act) for a Class UK (Partner - Temporary) Sub Class 820 visa (partner visa). 2 One of the criteria prescribed by the Migration Regulations 1994 (Cth) (Migration Regulations) made under the Act for the grant of a partner visa is that, at the time of decision, the applicant remains the spouse or de facto partner of the sponsor of that visa application. In turn, cl 820.221(3)(b)(ii) in Schedule 2 to the Regulations makes that criterion subject to the following exception: (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring partner: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation. 3 In Srour v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 441 (Srour), Moore J, applying preferentially the reasoning of Dowsett J in Fitch v Migration Review Tribunal [2004] FCA 1673, held that the parent of a child had "custody" of a child for the purposes of a materially indistinguishable visa criterion in the Regulations by virtue of the operation of s 61C of the Family Law Act 1975 (Cth) (Family Law Act). That section provides: 61C Each parent has parental responsibility (subject to court orders) (1) Each of the parents of a child who is not 18 has parental responsibility for the child. Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order. Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order. Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child. (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re marrying. (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section). Note: Section 111CS may affect the attribution of parental responsibility for a child. In effect, these decisions equate the reference to "custody" in the visa criterion to the possession of general parental responsibility for a child which, in turn, according to these decisions, is by operation of law, via s 61C of the Family Law Act, an incident of being the parent of a child. Thus, so far as his visa application is concerned, if the Minister or, sitting in his place, the Migration Review Tribunal (the Tribunal) were satisfied that Mr Ortiz was the father of the relevant child (Santina), he would fall within the exception mentioned above. 4 Mr Ortiz' visa application was lodged on 21 November 2006. The application was sponsored by his then de facto partner, Ms Heidi Andrews. By 30 March 2009, when the Minister's delegate made the decision to refuse the visa application, that relationship had broken down. Also in the interval between the date of the visa application and the date of the delegate's decision, a child, Santina Andrews (date of birth 3 January 2007), had been born. Following the breakdown of his relationship with Ms Andrews, Mr Ortiz formed a relationship with another female Australian citizen. A daughter was born of that relationship. That relationship, too, has since broken down. This further relationship and child of it were not relevant to whether he met the visa eligibility criteria. 5 The delegate was not satisfied that Mr Ortiz fell within the exception in cl 820.221(3)(b)(ii) because he was not satisfied that Mr Ortiz was Santina's father. This decision was subsequently affirmed by the Tribunal. Mr Ortiz then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. As he had before the Tribunal, he appeared on his behalf in that court with the assistance of an interpreter. Though he understands and can speak some English, he is not fluent in that language. On 9 June 2011 that court dismissed Mr Ortiz' application with costs. He now appeals to this Court against those orders. 6 Even in its amended form, the grounds in the notice of appeal as filed are prolix. The notice of appeal was signed by Mr Ortiz personally rather than by a legal practitioner. Generally and as the Minister's submissions highlight, the grounds exhibit the vice of alleging error on the part of the Minister or the Tribunal rather than error on the part of the court below. 7 In matters such as this the Court exercises appellate, not original, jurisdiction. Further and axiomatically, that appellate jurisdiction is exercised with respect to an appeal from a court whose role is that of judicial review, not merits review. No less than in the court below, the reasons of the Tribunal must not be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). 8 One ground of appeal goes so far as to allege that the Minister was obliged but failed to adhere to Article 17 of the United Nations Covenant on Civil and Political Rights (No one shall be subject to arbitrary or unlawful interference with his … family). Neither the Minister, his delegate nor, on review, the Tribunal was subject to any such obligation. 9 Mr Ortiz was represented by counsel on the hearing of the appeal. His counsel readily acknowledged the aforementioned deficiencies in the notice of appeal. He submitted that the grounds should be construed as alleging error on the part of the Federal Magistrates Court in not finding jurisdictional error on the part of the Tribunal on one or more of the following bases: 1. a failure on the part of the Tribunal to make its own inquiries as to Santina's paternity; 2. a failure on the part of the Tribunal to conduct a review hearing as required by the Act by reason of an unreasonable failure to adjourn the hearing pending the determination of proceedings with respect to Santina in the Family Court of Australia with a consequential denial of procedural fairness; and 3. illogicality or irrationality on the part of the Tribunal in concluding that it was not satisfied that Mr Ortiz fell within the exception in cl 820.221(3)(b)(ii); 4. elevating the undertaking of a DNA based paternity test by Mr Ortiz in respect of Santina to a prescribed requirement to the detriment of undertaking a review by reference to the requirements actually specified in the Migration Regulations in respect of a partner visa and, in particular, by reference to the terms of the exception. 10 In effect, this reformulation was derived from some of the errors alleged in the notice of appeal but with a refocussing of them such that they were alleged as jurisdictional errors on the part of the Tribunal which the Federal Magistrates Court had erroneously failed to find. As reformulated, most of these grounds of appeal involved quite some departure from the grounds of review which had been pressed before the Federal Magistrates Court. The Minister, with commendable fairness, accepted that it was possible for an appeal to be determined by reference to a ground not taken below but submitted that, if allowed on such a ground, questions as to costs both of the appeal and below may arise. The hearing of the appeal was then conducted by reference to the grounds as reformulated. 11 Before turning to these grounds, some reference should be made to the course of the proceedings in the court below and the resultant reasons given for the dismissal of Mr Ortiz' judicial review application. This is important because it explains why matters which came to have prominence on the hearing of the appeal received little or no attention below. 12 In the court below, Mr Ortiz principally argued that the Tribunal had failed to take a relevant consideration into account namely, the presumption of paternity for which s 69Q of the Family Law Act provides where there has been prior cohabitation as between the man and the mother of the child over a period prior to the child's birth specified in that section. In this case, there was evidence that Mr Ortiz and Ms Andrews had cohabited over this period. Most of the reasons for judgment below are directed to the resolution of this issue. 13 The learned federal magistrate concluded that the statutory presumption was not relevant to the administrative review proceeding conducted by the Tribunal. In so doing, his Honour referred to the inapplicability of the rules of evidence (of which the statutory presumption was one) and to the absence of any formal onus of proof in such proceedings. His Honour applied by analogy a statement made by R D Nicholson J with respect to the Refugee Review Tribunal in Minister for Immigration and Multicultural Affairs v A (1998) 156 ALR 489 at 497, which was that, "the existence of any presumption would be inconsistent with the function of the Tribunal to act in an inquisitorial fashion". Though the decision in that case was overturned on later appeal to the Full Court, A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (A v Minister for Immigration and Multicultural Affairs), the correctness of the statement was, as the learned federal magistrate accurately recorded, accepted by the Full Court. In that court, French, Merkel and Finkelstein JJ stated (53 ALD 545 at [41]) that: 41 The fact finding and evaluation to be undertaken by decision-makers in relation to applications for protection visas and by the Refugee Review Tribunal on review of their decisions is administrative in character. In consequence it is not appropriate for those decision-makers to draw too closely upon the rules of evidence applied in civil proceedings: see Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 282 where the High Court drew attention to the confusion likely to occur if the Refugee Review Tribunal was to decide questions of fact by adopting the civil standard of proof. It is equally inappropriate for the Tribunal to apply curial devices such as presumptions of law or fact. In Re Attorney-General (Canada) and Ward (1993) 103 DLR (4th) 1 at 23 it was said, in relation to an application for convention protection that: … "Nations should be presumed capable of protecting their citizens." But such a presumption, that is a presumption without a basic fact, is a rule of law relating to the existence of a burden of proof and such a rule has no part to play in administrative proceedings which are inquisitorial in their nature. 14 Though the statements in A v Minister for Immigration and Multicultural Affairs concerned the Refugee Review Tribunal, the analogy which the learned federal magistrate drew with respect to the Tribunal was, with respect, a sound one. There is no material distinction to be drawn between the administrative review function consigned by the Act to that Tribunal and the administrative review function consigned by that same Act to the Refugee Review Tribunal. In each the rules of evidence are not applicable. The ground of the judicial review application which alleged error on the part of the Tribunal in failing to apply in Mr Ortiz' favour, so far as paternity is concerned, the presumption arising from s 69Q of the Family Law Act was correctly dismissed. 15 The ground based on a presumption of paternity by reason of s 69Q of the Family Law Act was not resurrected on the appeal. As will be seen, that is not to say that, s 69Q of the Family Law Act was completely irrelevant to the review proceeding. 16 There were two other grounds of review pressed in the court below. One of these, which alleged that the Tribunal "failed to take into account the rules and objectives of the Honourable Courts of the Commonwealth of Australia" was rightly dismissed in a peremptory way. Aside from the mis-description of the Tribunal as a court, the ground so lacked particularity as to be meaningless. 17 The remaining ground of review concerned an alleged jurisdictional error arising from the Tribunal's failure further to adjourn the review hearing pending the determination of parenting order proceedings in which Mr Ortiz sought the making of parenting orders in his favour in respect of Santina. Judging by the learned federal magistrate's reasons for judgment and in marked contrast to the hearing on the appeal, this ground did not receive much attention in the submissions made to his Honour. The learned federal magistrate stated that the Tribunal's observation that it was under no duty to defer its consideration of Mr Ortiz' application until the determination of the family law proceedings was correct adding, "A failure by it to do so could not disclose any error or jurisdictional error". His Honour also remarked (at para 51): This application has been on foot since 2009 and the applicant had enjoyed many indulgences on account of those parallel proceedings. Ultimately however his rights were not limited to the production of a relevant court order. It was always open to the applicant to prove paternity of the child by undergoing a DNA test. He did not choose to pursue that avenue which was always available to him. 18 The reference in the remark of the learned federal magistrate just quoted to a DNA test emerged from the course of events prior to and during the hearing of the review application, as recited in the Tribunal's reasons. Those reasons disclose the following. The review application was initiated by Mr Ortiz in 2009. During that year and following an initial examination of his application a member of the Tribunal (not the member who came later to make the review decision) wrote to Mr Ortiz so as to seek his response in respect of particular matters which might form a basis for the affirmation of the Ministerial delegate's visa refusal decision. Amongst the matters raised were the absence of evidence of his paternity of Santina and the absence of any parental responsibility orders in his favour in respect of her. In October 2009 Mr Ortiz responded to this communication from the Tribunal. He advised that he had instituted family law proceedings but that these were proceeding slowly. He also advised that he had requested an amendment of Santina's birth certificate and that he "was required to undertake a DNA test by the Registry of Births, Deaths and Marriages and had no money to pay for one. He also indicated at that time that he did not want to undertake the test if he was not sure that the child was his child." (Tribunal reasons, para 12). After Santina's birth Ms Andrews had caused that birth to be registered but not nominated Mr Ortiz as the father. 19 The Tribunal's reasons also record that in December 2009, following correspondence by the Tribunal to it, the Registry of Births, Deaths and Marriages advised that before an amendment of Santina's birth certificate to record Mr Ortiz' paternity could be made, establishment of paternity by DNA testing was necessary. Later that month, the Tribunal requested Mr Ortiz' comments on this advice and requested that he provide a birth certificate for Santina. In response, in February 2010, Mr Ortiz advised that he was awaiting orders from the Family Court. The following month he advised the Tribunal that that court had made an order for the preparation of a family report to assist in the making of orders with respect to Santina's future care, welfare and development. He later advised the Tribunal that he had applied for the corrections to be made to the birth certificate. He requested early processing of his review application. 20 In August 2010 Mr Ortiz made a further submission to the Tribunal. In this he submitted that he had two natural born Australian children to whom he had obligations under Commonwealth legislation. Later that month the Tribunal conducted a hearing. He gave evidence before the Tribunal at that hearing. In the course of that evidence he stated that Santina was a child born of his relationship with Ms Andrews. The Tribunal's reasons include the following in respect of that hearing. Though lengthy, it is necessary, having regard to the way in which Mr Ortiz' case was put on appeal, to set out the passage concerned in full: 18. The Tribunal explained that for the applicant to be granted the Spouse visa, it must be satisfied that he is a biological father of the child, or had custody or access to the child or had orders under the Family Act. The Tribunal noted that he had previously informed the Tribunal that it was not certain that he was the father of the child and, given this claim, having his name on the child's birth certificate would not satisfy the Tribunal that he is the biological father of the child. The Tribunal sought the applicant's comments. The applicant said that the Tribunal's concern is not based on this claim. He said that he is both the biological father and the natural father and he was present during the birth and the first six months of the child's life when the child's mother decided to withdraw the sponsorship without his knowledge. 19. The Tribunal again noted that he needed to satisfy the Tribunal that he was either the biological father of the child, in which case a DNA test would be helpful, or that he had orders under the Family Law Act 1975, which he has not presented. The applicant said that he was still waiting for the Family Court. He had three hearings before the Family Law court. The first one was adjourned and now they are waiting for more evidence. He does not know when it would be resolved. The Tribunal pointed out that he had applied for the Partner visa in November 2006, almost four years ago, and his application had been with the Tribunal for almost a year and a half. The Tribunal noted that it was not prepared to wait indefinitely while his application was ongoing with the Family Court and he has not shown anything that his case would be resolved soon. The applicant said that the next hearing will take place on 8 October when the evidence on behalf of the children will be put forward. He did not know if the case would be finalised on that date. 20. The Tribunal asked the applicant if he was willing to undertake a DNA test. The Tribunal pointed that he needed to satisfy the Tribunal that he met the requirements for the grant of the visa. The applicant said that the reason he does not appear on Santina's birth certificate is because her mother kidnapped the child. The Tribunal noted that irrespective of the birth certificate, he needed to satisfy the Tribunal either that he has court orders, which he has not presented to the Tribunal, or that he is the biological father of the child, and he appears to be unwilling to take a DNA test. The Tribunal noted that on the evidence before it, it was not satisfied that he met the requirements for the grant of the visa. 21. The applicant said that he is here because of his two daughters and the Tribunal was trying to interfere with the Family Court orders. The Tribunal pointed out that there were no Family Court orders and that it was unable to consider his second relationship and the second child. The applicant said that they spent twelve months with his first wife to resolve the matter with the daughter and he cannot make the Family Court work faster. The Tribunal again noted that it was not prepared to wait for an indefinite period of time as there is no indication that his case is likely to be resolved within a reasonable period of time. The applicant asked if the Tribunal wanted him to leave his two daughters. The Tribunal pointed out that the only issue before it was whether he met the requirements for the grant of the visa. The applicant asked the Tribunal to grant him a permanent visa to be with his daughters. The Tribunal explained that it was unable to do that unless it was satisfied that he met the requirements for the grant of the visa. 22. The Tribunal again asked if the applicant if he was willing to undergo a DNA test. He invited the tribunal to do it on his behalf. He said that the Tribunal was the only authority questioning his paternity. The Tribunal again informed the applicant it was not satisfied that he was the father of his first child. 23. The Tribunal informed the applicant there were three possibilities. One, the Tribunal will make the decision on the material before it and such a decision may not be a favourable one. The second option is that the applicant to satisfy the Tribunal that he is the father of his first child, preferably through a DNA test. Thirdly, the applicant can present orders from the Family Court but it was not prepared to wait for that indefinitely. The applicant said that he wanted to be granted permanent residency so that he can fight in the Family Court. The Tribunal again explained to the applicant that he cannot be granted the visa unless he met the requirements for the grant of the visa. The applicant said that the Tribunal should act in favour of the two Australian children. He said that he has waiting since his daughter was born. 24. The Tribunal informed the applicant that it would wait until 9 October 2010 for him to inform the Tribunal about the progress of his Family Court application and if there was no progress with his case, the Tribunal would not wait indefinitely for the matter to be resolved. The applicant subsequently provided a copy of orders of the Family Court listing his matter for a directions hearing, as well as a letter offering him an appointment at the Parenting Orders Program. On 11 October 2010 the applicant informed the Tribunal that he had attended a Family Court hearing in the previous wee and that the child's mother was trying to prevent him from having contact with the child and the Court had implemented orders. The applicant stated that he would provide copies of these orders to the Tribunal and he thought he may receive these within a couple of days. The applicant subsequently provided to the Tribunal court orders setting down the date for further proceedings. 21 The Tribunal later stated (para 32), "while he has applied to the Family Court to be listed as the child's father, there is nothing before the Tribunal to indicate that this has not been done". With all due respect to the Tribunal member concerned, insofar as this portion of the Tribunal's reasons is intelligible at all, it misstates the nature of the family law proceedings to which Mr Ortiz was a party. The unambiguous third party evidence before the Tribunal both in the form of correspondence from the Family Court concerning the preparation of a family report (3 March 2010) and advice to Mr Ortiz concerning the proceedings in that court (Foundations Child and Family Support Ltd letter to him of 31 August 2010) was that these were parenting order proceedings. There was nothing whatsoever in that material which in any way suggested that they related to an amendment of Santina's birth certificate. Nor, without an error of law in initiating a proceeding claiming such relief in the Family Court, could there have been. Under s 11 of the Births, Deaths and Marriages Registration Act 2003 (Qld) (Births, Deaths and Marriages Registration Act), it is the Supreme Court of Queensland which has jurisdiction to order the Registrar-General to amend parentage details on a birth certificate with an alternative review jurisdiction being conferred by s 49 on the Queensland Civil and Administrative Tribunal in respect of a decision by that official to refuse to make a parentage details amendment. 22 The Tribunal's reasons then record: The applicant informed the Tribunal that he was the father of the child and there is also evidence that the child's mother had suggested that he was the father of the child. [emphasis added] 23 What the Tribunal had before it was a copy of a letter of 31 July 2009 addressed to "To Whom it May concern" at "Birth Corrections" at the Queensland Registry of Births Deaths and Marriages, signed by Ms Andrews, in which she stated, "The biological father wishes to sign and be included on the birth certificate of Santina Lee Andrews. Father's details are as follows [then follows accurate details of Mr Ortiz' full name, date of birth, age at the date of Santina's birth and place of birth]." The original of this came to Mr Ortiz under cover of a signed, handwritten letter from Ms Andrews in which she stated: Sign the dotted line and post in envelope provided. Please do not change any of her details as she is registered under this name for Medicare etc. I will send you a copy of the new certificate when it arrives. [sic] To describe this evidence as a "suggestion" of paternity is also a patent error. It is much more than that. Read in isolation, it is direct confirmation of Santina's paternity by the mother. 24 The Tribunal then further states in its reasons (at para 32): However, in his communications with a Tribunal officer on 20 October 2009, the applicant suggested that the child's mother did not know who the father was. Similarly, in his communication with the Tribunal officer of 16 November 2009 the applicant stated that he did not want to spend money on a DNA test in the event that the child was not his. 25 What the Tribunal did not state was that Mr Ortiz had made a like statement to an immigration officer and in April 2009 provided the following explanation (Appeal Book, p 206): That was the only way I was able to cope with the fact that her mother have refused me access since 5/5/7 [5 May 2007]. I knew I could not do much. Baba was being breast fed and the mother is the best person to be with for the first moments of life. I did not know or expected what I am witnessing now. 26 Mr Ortiz also states in this response that he was present at the birth, held Santina in his arms just after she was extracted following birth by caesarean section and saw her on a regular basis until 5 May 2007. Neither does the Tribunal make any reference in its reasons to the extensive third party evidence of cohabitation by Mr Ortiz with Ms Andrews in the period prior to Santina's birth and, especially, over the whole of any possible conception period. 27 The Tribunal states (para 33), "The Tribunal is also concerned about the applicant's reluctance to undertake a DNA test to prove its paternity." Having so done, the Tribunal states (para 33) that, "The Tribunal is not satisfied, having regard to the totality of evidence before it, that the applicant is the biological father of Santina." On this basis the Tribunal then found that the applicant did not satisfy the visa eligibility criteria and affirmed the decision under review. 28 Given that alleged jurisdictional error based on an unreasonable refusal of an adjournment by the Tribunal is the only ground which was both raised before the court below and taken up as a ground of appeal upon its rejection by that court, it is convenient first to consider that appeal ground. 29 In support of his contention that the Tribunal had unreasonably denied him an adjournment Mr Ortiz relied upon a dictum of Perram J in Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 (Bodenstein). In that case Perram J conceded that jurisdictional error of a kind analogous to a denial of procedural fairness might be found in a failure to adjourn which amounted to a breach of s 357A(3) of the Act. Subsection 357A(3) of the Act obliges the Tribunal to act in a way that is just and fair. In so doing, his Honour considered there was, in relation to s 357A, an analogy to be drawn with an observation made by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at 365 (NAHF) to the effect that a denial of procedural fairness may result in jurisdictional error. In support of that observation, Hely J had referred to Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 (Aala). 30 The High Court later refused to grant special leave to appeal in Bodenstein on bases which included an absence of any reason to doubt the correctness of that decision: Bodenstein v Minister for Immigration and Citizenship [2009] HCASL 157. Bodenstein was not cited to the learned federal magistrate. 31 The Minister's response to this submission was that Mr Ortiz' circumstances were not of a kind contemplated by Perram J in Bodenstein. This submission was made on the basis that, in the case referred to by his Honour, NAHF, the inability to attend the hearing and the related denial of an adjournment had been because of ill health. Yet Perram J did not so confine his concession in Bodenstein. It would be contrary to principle so to confine it. A statutory obligation "to pursue an objective of providing a mechanism of review that is "fair, just, economical, informal and quick" (s 353(1) of the Act) is just as flexible an obligation as a general law procedural fairness obligation: see, as to the latter, Kioa v West (1985) 159 CLR 550 at 585. So, too, is the rider to Division 5 of Part 5 of the Act, which is expressed by s 357A(1) of the Act to be an exhaustive statement of the natural justice hearing rule with respect to the matters with which it deals, that, in applying that Division, the Tribunal must act in a way that is "fair and just" (s 357A(3)). 32 What is "fair and just" must be measured by the circumstances of a particular case. It is always a mistake to confuse illustrations decided on particular facts of what amounts to a violation of an obligation expressed in such general terms with the limits of that obligation. To refuse an adjournment to a man too ill to take advantage of an opportunity to be heard is but one way in which such an obligation may be breached. For reasons which follow, this case, in my opinion, offers an example of another. 33 The parenting order proceeding in the Family Court was of the very kind that could, if decided in his favour, confer upon Mr Ortiz a way in which he could satisfy the exception in the visa eligibility criteria. An order made in such a proceeding was expressly referred to in cl 820.221(3)(b)(ii) in Schedule 2 to the Regulations. In theory, it was not the only way that Mr Ortiz might fall within the exception. As Srour demonstrates, proof of paternity would show that, per force of statute, he had in law general custody (now "parental responsibility") rights in relation to Santina. However, given the view of the Tribunal member as to his inability to satisfy her of paternity and assuming for the moment that the Tribunal's absence of satisfaction is to be regarded as reasonable, the obtaining of a parenting order was the only means left open to Mr Ortiz to show that he fell within the exception. This lent a unique importance to the fate of those proceedings so far as Mr Ortiz' merits review application was concerned. This underscores the importance of the Tribunal correctly understanding exactly what was the nature of those family law proceedings. Yet further, how, one asks rhetorically, was Mr Ortiz to secure a meaningful DNA test without access to a comparative from Santina which access could only be secured by the family law proceeding he had initiated? 34 The Tribunal had evidence that Mr Ortiz wanted his merits review application promptly concluded but evidence also that he did not want this at the expense of that occurring before the family law proceedings were concluded. The Tribunal had no evidence that the family law proceedings were not being prosecuted by Mr Ortiz with due diligence. Such evidence as it did have was to the contrary. That evidence showed that, in April 2009, Mr Ortiz had failed to attend with Ms Andrews at what is known in that jurisdiction as "family dispute resolution" under the auspices of the Family Law Act with a "family dispute resolution practitioner" but that his failure had been due to the failure or refusal of Ms Andrews to attend (Appeal Book p 205). Inferentially, Mr Ortiz had attended but Ms Andrews had not. Since then, the Family Court had made regular orders progressing Mr Ortiz' application towards a hearing. Further, his application in respect of Santina had become joined with a separate application which he had made in respect of the child of his other relationship. The latest court orders in evidence prior to the Tribunal's decision on 25 October 2010 were those of 8 October 2010 which provided for the filing of affidavits and a listing thereafter before a registrar on 25 November 2010. 35 Beyond this, the Tribunal had the statement of a layman, Mr Ortiz, that the family law proceeding might take years to resolve. The weight the Tribunal gave that statement was a matter for it but there was nothing in the statement, even accepting it at its highest, which could form a basis for concluding that, if it did take that long, it would be because Mr Ortiz was not prosecuting his application with due diligence, as opposed to being hostage to the ordinary processes of the Family Court. In the family law proceedings, but not before the Tribunal, Mr Ortiz did, given the time of his cohabitation with Ms Andrews prior to the birth of Santina, have the benefit of a presumption of paternity by reason of s 69Q of the Family Law Act. There was nothing in the material before the Tribunal about the family law proceedings which suggested that Mr Ortiz' parenting order application was being resisted on the basis that he was not Santina's father. 36 The Tribunal's statement, endorsed by the learned federal magistrate on judicial review, that it is under no obligation "to await the outcome of the proceedings indefinitely" was true in an abstract sense but apt to divert attention from whether the Tribunal had discharged its statutory obligations in the circumstances of this particular case. In concluding that the refusal to adjourn the proceeding entailed no jurisdictional error, the learned federal magistrate additionally referred to s 353(1) of the Act, inferentially because of the reference in that sub-section to "quick". 37 With respect, I consider that the learned federal magistrate's statement that a refusal of an adjournment could not amount to jurisdictional error was wrong. 38 The Tribunal's obligation (s 348 of the Act) was to review "MRT reviewable decisions", of which the refusal of Mr Ortiz' visa application was one such decision. In so doing, s 353 obliged the Tribunal to act in a particular way. In turn, s 357A(3) of the Act required that any hearing offered to and taken up by Mr Ortiz be one which was "fair and just". The hearing offered had to be one which was more than a "hollow shell or empty gesture": NAHF at [35] per Hely J, referring to Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31]. Like Perram J in Bodenstein, I consider that there is an analogy to be drawn from NAHF and, in turn, Aala, as to what may or may not be "fair and just". Care though must be taken with the analogy. 39 In Aala, at [41], Gaudron and Gummow JJ stated that if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution. [Emphasis added] Subsection 357A(3) of the Act delineates the content of the natural justice hearing rule in respect of the matters with which it deals. Section 353 qualifies the way in which the Tribunal must review a decision. If in conducting the hearing offered the Tribunal has not acted in a way that is "fair and just" it will be that delineation and that qualification which have not been observed, not a general law obligation to observe procedural fairness arising in the circumstances of making a particular administrative decision. However, just as, under the general law and in the absence of valid statutory qualification, an unreasonable refusal of an adjournment by a merits review tribunal may amount to jurisdictional error constituted by a denial of procedural fairness, so too such a refusal by a Tribunal that is obliged by statute to act in a way which is "fair and just" may amount to a jurisdictional error. The jurisdictional error will lie in the failure by the Tribunal to act in the way required of it by the Act. Because of that failure, the Tribunal will have in law made no decision at all. It will have constructively failed to exercise the jurisdiction conferred on it by the Act: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [52], referring with approval to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 40 In Bodenstein the adjournment application also centred on unresolved litigation. Unlike the present case, where the exception criteria in the Regulations expressly include criteria dependent upon the making of court orders and thus litigation as a sequel to the breakdown of the relationship with the sponsor, the relevant visa criterion in that case did not contemplate the possibility that a visa applicant may need to conduct litigation in order to satisfy that criterion. Rather, depending upon the result of the Supreme Court litigation also being conducted by the applicant in Bodenstein and, if resolved in his favour, the result in turn of recovery pursuant to any damages award, that visa applicant may have been able to increase the worth of his assets. On one view, so doing would have been relevant to whether he met a minimum asset value but the relevant visa criterion spoke not just of a minimum assets value but of a minimum value of assets to conduct a business. Therefore, the connection between the parallel litigation and the review being conducted by the Tribunal was attenuated. In that circumstance a refusal by the Tribunal to adjourn so as to await the outcome of the parallel litigation was not unreasonable. In contrast, here the connection was intimate. 41 The effect of the Tribunal's refusal of an adjournment to Mr Ortiz, given the member's view as to his inability to satisfy her that he was Santina's father, was to ensure that his review application was doomed to fail. In refusing that adjournment, the Tribunal acted upon a patent misconception as to the nature of those proceedings. In so doing, it failed to take into account a relevant consideration namely, the existence of proceedings for the securing of the very type of order referred to in the exception. Further, there was nothing before the Tribunal upon which it might reasonably conclude that Mr Ortiz was not prosecuting with due diligence the family law proceeding directed to the securing of an order of that kind. Yet further, securing access to Santina was essential if any comparative for a DNA test was to be obtained. When account is taken of all of these circumstances, the Tribunal's failure to grant an adjournment was unreasonable. It was not fair and just. The Tribunal did not comply with either s 357A(3) or s 353(1) of the Act. As to the latter, the objective of providing a review mechanism which is "fair, just, economical, informal and quick" is cast in the conjunctive, not the disjunctive. None is more important than the other. To decide a review application quickly to the detriment of doing so fairly and justly is to make no lawful decision at all. 42 The Tribunal's failure on the material before it to be satisfied as to Santina's paternity and hence that Mr Ortiz fell within the exception was also unreasonable. 43 The proceedings before the Tribunal were in character administrative review, not true inquisitorial, proceedings: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17, [40] (QAAH). The Tribunal was under no general obligation to initiate its own inquiries although, in particular circumstances, a failure to make an inquiry about an obvious fact critical to deciding a particular review application might give rise to jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]. That is not this case. To the extent that Mr Ortiz relies on a failure to inquire that ground must fail. Even assuming (and it is unnecessary to decide the point) that the Tribunal's information gathering power under s 359 of the Act would extend so far, the Tribunal was under no obligation to initiate scientific testing by DNA analysis in order itself to obtain material relevant to whether Mr Ortiz was the father of Santina. 44 Administrative decision making such as it fell to the Tribunal to undertake differs from that in a judicial proceeding. It bears repeating that in the review proceeding the rules of evidence were not applicable and neither was there a formal onus of proof which fell on Mr Ortiz: Wu Shan Liang; QAAH. It was in Mr Ortiz's interest to highlight in the material already before the Tribunal or to adduce such further material as he considered would engender a state of reasonable satisfaction on the part of the Tribunal that he met the visa eligibility criteria but a failure so to do did not mean that the Tribunal was not still obliged to review on the merits and on the material it did have the decision of the Minister's delegate. If, for example, he did not adduce DNA testing material that review obligation remained. 45 What the Tribunal had before it was unequivocal material showing that Mr Ortiz was cohabiting with Ms Andrews at the time when Santina's conception must necessarily have occurred. It also had unequivocal material signed by Ms Andrews that Mr Ortiz was Santina's "biological father" (her words). To describe, as did the Tribunal, the material from the mother as "suggesting" that Mr Ortiz was Santina's father was to misdescribe and thereby to misunderstand a critical fact. An express, affirmative admission is not a "suggestion". It also had Mr Ortiz's evidence that he was the child's father and that, as such, he was actively pursuing parenting order proceedings in the Family Court in respect of that child. It also had an explanation, grounded in his claimed emotional state at the time when his access to Santina was abruptly terminated, as to why he had earlier expressed doubt about paternity. It also had evidence that Mr Ortiz did not propose to undertake a paternity test. 46 Were Ms Andrews, the mother, to be denying his paternity, a refusal on the part of Mr Ortiz to undertake a paternity test might logically and rationally support an absence of satisfaction as to his being Santina's father. That was not this case. Further, a DNA test requires a sample against which to measure that of the alleged father. Just to take a sample of Mr Ortiz's DNA would be meaningless. The material before the Tribunal showed that he was being denied access to Santina by Ms Andrews. Securing access was the whole point of the family law proceeding. Yet further, when the undoubted mother was emphatically corroborating Mr Ortiz's evidence that he was the "biological father", what was the point of a DNA test anyway? 47 The Regulations did not require that custody based on parenthood be established by DNA testing. One way of adducing material which would ordinarily be sufficient to induce reasonable satisfaction as to paternity and hence custody would have been to produce a birth certificate for Santina upon which Mr Ortiz was recorded as her father. The Births, Deaths and Marriages Registration Act did not require that such an entry could only be made or amended on the basis of DNA testing. That Act does not mention DNA testing at all in relation to the basis upon which parenthood details may be amended on a birth certificate. Inferentially, on the material before the Tribunal, such "requirement" as there was for such a test in order to make such an amendment was nothing more than a policy of Queensland's Registrar-General. Further, if that policy did anything more that state that such a test was desirable but not mandatory it would be inconsistent with the Births, Deaths and Marriages Registration Act and invalid. Though there are some passages in the Tribunal's reasons which give pause for thought about whether the Tribunal did indeed consider that DNA testing was mandatory, reading the Tribunal's reasons as a whole and bearing in mind what was said in Wu Shan Liang in relation to an administrator's reasons, I do not consider that the Tribunal has committed the vice of elevating a need for a DNA test to a statutory requirement. Rather, the vice it has committed in relation to reliance on an absence of willingness to undertake DNA testing is of a different kind and is described in the preceding paragraph. Contrary to the Minister's submission the conclusion reached by the Tribunal was not one reasonably open to it. 48 For reasons already given, administrative review proceedings are not to be assimilated with judicial proceedings. Nonetheless, one way of highlighting the weight of material as to Santina's paternity which the Tribunal did have before it is to consider the extent to which that type of material would, if adduced in evidence in court, have admitted of a finding of paternity either in affiliation and maintenance proceedings or in other contexts in the days prior to DNA testing. 49 Re S (deceased) [1958] Qd R 449 was a proceeding where Q sought family provision from the testator S as his alleged father, after a Magistrate, in affiliation and maintenance proceedings, found S to be the father of Q. In the Supreme Court, the mother gave evidence that S was the father of Q but there was no corroboration of her evidence. Instead, there was evidence that S had never in his lifetime acknowledged Q. Apart from holding that the Magistrate's finding of paternity was of no force in the proceedings before him, Philp J held (at 454) that a finding that Q was a "child" of the testator, S, for the purposes of the then testator's family maintenance legislation could permissibly be made on the basis of a mother's uncorroborated testimony. In the result, his Honour did not accept the mother's evidence and thus found that Q was not the child of S for the purposes of the legislation. 50 In affiliation and maintenance proceedings, where corroboration of the evidence of the mother of a child as to the child's paternity was required by statute, that corroboration could be found even in an inference arising from the way in which an otherwise equivocal statement was expressed by the alleged father when confronted with an allegation of paternity: Hobbs v Davies; ex parte Davies [1943] St R Qd 131 (special leave refused by the High Court) see Davies v Hobbs (unreported, High Court of Australia, 1943, noted (1943) 67 CLR 641). 51 The material before the Tribunal as to Santina's paternity rose much higher than that which would have been sufficient to find that Mr Ortiz was her father even in judicial proceedings where the rules of evidence applied and where corroboration was required. 52 Illogicality or irrationality can be a basis on judicial review for concluding that an administrative decision is tainted by jurisdictional error. As to this, in their joint judgment in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24] (SZMDS), Gummow A-CJ and Kiefel J stated: 23 In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms "arbitrary, capricious, irrational" as well as "not bona fide" to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open. 24 A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact. [Footnote references omitted] See also to like effect in that case the observations of Crennan and Bell JJ at [132] and [133]. 53 The Tribunal's failure to be satisfied on the material before it as to Mr Ortiz being the father of Santina is an example of what Iacobucci J described in the passage quoted in SZMDS as decision-making "upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open". For this reason also, the Tribunal has failed to exercise the review jurisdiction consigned to it by the Act. It has also acted in a way which is not fair and just. 54 In fairness to the learned federal magistrate, it must be said that his Honour was not taken to Ms Andrews' emphatic statement as to who was Santina's biological father. An argument derived from this with to jurisdictional error based on illogicality or irrationality was not developed before him. Nonetheless, the error is patent on the face of the Tribunal's reasons, having regard to the material before it and it has now been raised. 55 The appeal must be allowed and the orders of the Federal Magistrates Court set aside. In lieu thereof, it should be ordered that the decision of the Tribunal is set aside and the matter remitted to the Tribunal for hearing according to law. I shall hear the parties as to costs both in respect of the appeal and in the court below. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Ortiz v Minister for Immigration and Citizenship

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