ONUS OR BURDEN OF PROOF?
61 The references in the Grounds of Appeal as formulated in the Amended Notice of Appeal to "onus or burden of proof", without more, are curious.
62 Leaving aside any potential difference between an "onus" and a "burden of proof," as a general proposition the "legal burden of proof is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be": JD Heydon, Cross on Evidence (10th Aust ed., Butterworths, 2015), p 291.
63 The concept of an "onus or burden of proof" is a concept buried in common law rules of evidence and the practice and procedure of superior courts of law entrusted with resolving disputes between parties to litigation.
64 As a general proposition, administrative decision-making and decision-making by administrative tribunals is not adversarial and past attempts to blur the distinction between adversarial and administrative decision-making have vigorously been rejected: e.g., the procedures employed by administrative tribunals differ greatly from those employed in superior courts: Saunders v Commissioner of Taxation (Cth) (1988) 15 ALD 353 at 358. Northrop J there observed:
Viewed in this light, it is not surprising that the procedures of the Tribunal differ greatly from court proceedings. For example, there is no provision for the filing of pleadings nor for discovery or inspection of documents. Nor is the Tribunal bound by the rules of evidence. Provision is made for there to be "parties" to the proceedings (s 30) but in a reference such as this the parties are not adversaries in the strict sense, and any argument they present constitutes material which assists the Tribunal in deciding what decision should be made. The decision of the Tribunal is not in the nature of a judgment for or against a particular party. …The Tribunal is in the shoes of the Commissioner and may use any material put before it in reaching its decision …
See also: Clare v Australian Community Pharmacy Authority [2015] FCA 653 at [71] per Reeves J.
65 Again, as a general proposition, the common law concept of "onus of proof" has no application to administrative decision-making. The concept is a hallmark of judicial - and not administrative - decision-making. Indeed, it would come as a surprise to many Commonwealth administrative decision-makers, including the present Minister, that there was imposed upon a Minister a legal burden or obligation to prove or disprove facts when resolving applications or claims made. It would be difficult to envisage a hallmark more reminiscent of an adversarial means of adjudication than the imposition upon a decision-maker of a "legal onus or burden of proof". On such an approach, unless the Minister could discharge the posited burden of proof, he could lawfully reach no requisite state of "satisfaction". Such a proposition only has to be stated to be rejected - at least as a general proposition.
66 In respect to an onus of proof, in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356, Woodward J, albeit in the context of addressing (in part) s 33 of the Administrative Appeals Tribunal Act, expressed the following general principles:
The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.
The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act, s.33(1)(c)).
Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.
Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading "onus of proof", becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present.
These observations have subsequently not been confined to the particular statutory provisions applicable to the Administrative Appeals Tribunal and have been applied (for example) in respect to proceedings before the Victorian Civil and Administrative Tribunal (MH6 v Mental Health Review Board & Austin Health, Royal Talbot Hospital [2008] VSC 345 at [67]), and the Australian Broadcasting Tribunal (Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291 at 297). It has also been acknowledged that "[g]enerally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area": Minister for Health v Thomson (1985) 8 FCR 213 at 223 to 224 per Beaumont J.
67 Indeed, even the use of the term "prove" or "proof" has attracted criticism in an administrative law context. When considering a claim for a disability pension which had been rejected by the Repatriation Commission and which was sought to be reviewed before the Administrative Appeals Tribunal, Logan J in Linwood v Repatriation Commission [2016] FCA 90 has observed:
[33] Mr Linwood was not obliged to prove to demonstration that a particular factor was present. Nor was he obliged, given the preamble in cl 9 of the [Statement of Principles], to prove that more than one specified factor existed during his service. Materially, all that was necessary was that there be before the Tribunal material to engender reasonable satisfaction that at least one factor had effects which were chronic in nature and caused him to feel on-going distress, concern or worry. Indeed, to use the word "prove" at all is to import into an administrative review process a term from adversarial litigation in a court. It was in Mr Linwood's interest to place before the Tribunal such evidence as he could to support the outcome which he sought but he was not subject to any formal onus so to do …
Ordinarily, a tribunal will "be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate": Sullivan v Department of Transport (1978) 1 ALD 383 at 402 per Deane J.
68 Attempts to import other evidential tools which have emerged in the context of civil litigation, such as the rule in Brown v Dunn (1893) 6 R 67, have also been rejected in the context of decision-making by the Refugee Review Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [56], (2003) 77 ALJR 1909 at 1918. Gummow and Heydon JJ there observed that the purpose of statutory provisions, such as the provision then found in s 420(2) of the Migration Act that the Tribunal was "not bound by technicalities, legal forms or rules of evidence", was "to free bodies such as the Tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate".
69 Albeit not in the specific context of considering Public Interest Criterion 4020 or s 97 of the Migration Act, but in the context of proceedings before the Refugee Review Tribunal, similar, generally-expressed observations have been made regarding the inapplicability of the common law concept of onus of proof to proceedings before that Tribunal. Thus, for example, in SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 Middleton J observed:
[24] Generally, there is no onus of proof in administrative inquiries and decision making: Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288. However, it is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214. The decision maker is not required to make the applicant's case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.
[25] It is also the case that in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. However, the Tribunal is not required to uncritically accept any or all of the allegations made by an applicant.
If a claimant makes a claim, be it for refugee status or otherwise, it remains for the claimant to present evidence and advance arguments adequate to enable the decision-maker to make a decision favourable to the claimant. There is no burden upon the decision-maker to make out a case that the claimant has failed adequately to advance. Again in the context of reviewing a decision of the Refugee Review Tribunal, Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, (2003) 77 ALJR 1088 at 1100 has observed:
[78] … The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances …
70 The imposition of a "legal onus or burden of proof" upon a Minister would also not sit comfortably with the rejection of a generally-expressed duty upon an administrative decision-maker to make further inquiries by reason of potential deficiencies in the material relied upon by a claimant: SZIAI [2009] HCA 39 at [26], (2009) 83 ALJR at 1129. The Appellants' contentions failed, with respect, satisfactorily to explain why there may be no duty upon the Tribunal in the present case to make inquiries, but a "legal onus or burden" to obtain materials upon which it could be "satisfied".
71 Notwithstanding such repeated, generally-expressed principles which have been made in a myriad of statutory contexts as to the inapplicability of the common law concept of onus of proof in administrative decision-making, and the non-adversarial nature of administrative decision-making (e.g., SZIAI [2009] HCA 39 at [18], (2009) 83 ALJR at 1127), it is obviously the case that a legislative intention to make that concept applicable to administrative decision-making in a particular statutory context may be discerned from either an express legislative provision to that effect, or by necessary implication from the legislative context. The decision of Sackville J in Jasbeer Singh, supra, provides one instance where the form in which s 20 of the Migration Act was then expressed led his Honour to conclude that "the burden lies upon the Minister of proving the facts demonstrating the falsity of the statements made by the applicant". But the Migration Act has been the subject of innumerable amendments since that decision and, in particular, there is no equivalent provision to s 20 as it then was enacted. And the decision of Branson and Stone JJ in NBDY, with respect, does not dictate any contrary conclusion. Their Honours' reference to there being a "burden" on the Minister, it is respectfully considered, cannot be understood as supporting the proposition sought to be advanced by the Appellants in the present case.
72 These general propositions may, accordingly, be changed either by express legislative provision, or by necessary implication, to be discerned from a particular legislative context. In some statutory contexts, it may be noted, the Commonwealth Legislature has expressly stated that the Commonwealth has no "onus of proving any matter": e.g., Bushell v Repatriation Commission (1992) 175 CLR 408 at 424 to 425 per Brennan J.
73 In the present case, there is no express legislative provision imposing upon the former Migration Review Tribunal any such "onus or burden of proof" as is now adumbrated by the Appellants.
74 Any such conclusion must, accordingly, be dictated by a necessary legislative implication to be discerned from the statutory context. The source of such an implication, it was bravely advocated on behalf of the Appellants, was to be discerned from:
the requirement imposed by Public Interest Criterion 4020(1) that there be "no evidence"; and/or
the requirement imposed by s 97 that the Minister (or the Tribunal) "reasonably suspects".
Notwithstanding the considerable temerity in advancing such a bold submission, it is to be summarily rejected.
75 In the absence of an express statutory provision imposing upon the Migration Review Tribunal an onus of proof, it is respectfully concluded that no implication should be drawn imposing such an onus upon that Tribunal by reason of either Public Interest Criterion 4020 or s 97 of the Migration Act. Confined to a consideration of the statutory provisions applicable to the manner in which the Tribunal was to review such decisions as were entrusted to its jurisdiction, the implication should be not be drawn because an onus of proof would either be inconsistent with or (at the very least) not sit comfortably with:
the mandate of the Tribunal to conduct a review in a manner that was "fair, just, economical, informal and quick" and to conduct is review functions in a manner "not bound by technicalities, legal forms or rules of evidence" (s 353) - the imposition of an onus upon the Tribunal having the very real potential to make proceedings before the Tribunal more adversarial than "informal and quick";
the absence of any "entitlement" of a party to "cross-examine any person" (s 366D) - the Appellants' submission apparently being that although a party has no entitlement to cross-examine any other person, there nevertheless remains a "duty" or an "onus" upon the Tribunal itself to cross-examine a party as to whether or not a document is a "bogus document" or an "onus" to rebut the authenticity of such a document by reference to further materials which the Tribunal has the "burden" to adduce or to conduct its own inquiries as to the authenticity of the documents in question (SZIAI [2009] HCA 39, (2009) 83 ALJR 1123); and
the power conferred upon the Tribunal to "require the Secretary to arrange for the making of any investigation … that the Tribunal thinks necessary" (s 363(1)(d)) - the Appellants' submission necessarily being that the Tribunal can not only "require" the Secretary to undertake an investigation but implicitly retains an unstated power to do so itself.
If there be an onus of proof imposed upon the Tribunal, there is - presumably - no reason why Public Interest Criterion 4020 would not impose a like onus upon the Minister. But the Appellants neither advanced such a bold submission, nor any reason why the Tribunal would be exposed to such an onus but not the Minister.
76 Confined to a consideration of such provisions, it is respectfully concluded that the statutory scheme is such that the Tribunal was required to undertake its review functions upon the basis of such materials as were placed before it by the parties, together with such further materials obtained pursuant to any "investigations" required to be undertaken by the Secretary. No implication is to be drawn placing any "onus" upon the Tribunal itself to undertake its own process of inquiry into those matters required to be established for a case to fall within Public Interest Criterion 4020 or s 97 of the Migration Act. In the absence of an express or implied requirement to undertake inquiries, there is no generally imposed duty to do so: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123. Section 420 of the Migration Act, it is respectfully concluded, not only frees the Tribunal from "technicalities" and the "rules of evidence", it also frees the Tribunal from the constraints imposed by the common law concept of an onus of proof drawn from civil litigation.
77 More broadly expressed, and approached from the context of generally-expressed principles, the same conclusion is reached. The implication sought to be drawn by the Appellants from the statutory context is also considered either to be inconsistent with, or at the very least, sitting uncomfortably with:
the non-adversarial nature of administrative decision-making and the continued insistence upon the different character of judicial, as opposed to administrative, decision-making;
the rejection of the notion that an onus of proof rests upon an administrative decision-maker;
the rejection of the universal application to administrative decision-making of common law rules of evidence; and
the rejection of an unqualified duty upon an administrative decision-maker to undertake inquiries.
To combat such generally-expressed and recognised principles, one would be highly unlikely to discern any implied legislative intention to impose such a "legal onus or burden of proof"; any such "legal onus or burden of proof" would in all likelihood have to be expressly imposed if it were the will of the Commonwealth Legislature.
78 At the Commonwealth level of decision-making there forever remains the necessity to distinguish between (at its most simple) administrative decision-making and the discharge of functions entrusted to the judiciary alone. The statutory context in which many administrative tribunals function only serves to emphasise the need to constantly maintain that distinction. Caution has been expressed in respect to attempts to draw analogies between administrative decision-making and civil litigation: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282. Brennan CJ, Toohey, McHugh and Gummow JJ there observed:
The nature of the decision-making process
We should mention one further matter. Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
See also: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [117], (2014) 226 FCR 555 at 586 per Flick and Perry JJ; Millar v Commissioner of Taxation [2015] FCA 1104 at [139] per Griffiths J.
79 There remains, accordingly, neither a statutory source of any onus to be imposed upon the Tribunal in the present case; nor is there any sound reason of general principle to import into decision-making by the Tribunal the common law concept of onus.
80 None of these observations, however, should be construed as diminishing the appropriateness of an administrative decision-maker providing such assistance as may be appropriate to an unrepresented party: Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [48] per Mortimer J; Wade v Comcare [2002] FCA 289 at [25], (2002) 69 ALD 602 at 607 per Drummond and Dowsett JJ.
81 Grounds 1 and 2 of the Notice of Appeal are rejected. Expressed in terms of a "legal onus or burden of proof", the proposition is an anathema to administrative decision-making.