Elaraby v Minister for Immigration - [2018] FCCA 1101

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELARABY & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1101

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Remaining Relative visa – whether the Tribunal erred in proceeding on the basis that before the criteria for the grant of a Remaining Relative visa can be satisfied the Tribunal had to be satisfied the applicant’s biological father was dead – whether the Tribunal erred in relying on the common law presumption of death in determining whether the biological father was dead – whether the applicant’s step-father who lived in Australia was the “parent” of the applicant to the exclusion of the applicant’s biological father – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60E, 66D, 66M

Migration Act 1958 (Cth), ss.5(1), 5CA

Migration Regulations 1994 (Cth), regs.1.04, 1.14A, 1.15, Schedule 2, cl.835.323

Cases cited:

A v New South Wales [2007] HCA 10
Abrath v North Eastern Railway Company (1883) 11 QBD 440
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Apollo Shower Screens Pty Ltd v Building and Construction Industry Ling Service (1985) 1 NSWLR 561

Axon v Axon (1937) 59 CLR 395

Goth & Banks [2013] FamCA 430
Kim v Minister for Immigration & Anor [2007] FMCA 798
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC

First Applicant:

SHERIN MOHAMED SALAHELDIN SOLIMAN ELARABY

Second Applicant:

ABDELRAHMAN MOHAMED ALI BAIOMY

Third Applicant:

ALIA MOHAMED ALI BAIOMY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3431 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

30 March 2017

Date of Last Submission:

30 March 2017

Delivered at:

Sydney

Delivered on:

4 May 2018

REPRESENTATION

Counsel for the Applicants:

Mr J Cohen

Solicitors for the Applicant:

Sun Legal

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3431 of 2015

SHERIN MOHAMED SALAHELDIN SOLIMAN ELARABY

First Applicant

ABDELRAHMAN MOHAMED ALI BAIOMY

Second Applicant

ALIA MOHAMED ALI BAIOMY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants, who are nationals of Egypt, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants an Other Family (Residence) (Class BU) (Subclass 835) visa (Remaining Relative visa).

Background

The first applicant (applicant) and her dependent children applied for a Remaining Relative visa on 25 February 2014. The applicant’s mother (Mother), who is an Australian citizen, is the applicants’ sponsor.
In order to have been entitled to the grant of a Remaining Relative visa the applicant had to satisfy,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1101
Decision Date: 4 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Elaraby against a decision of the Minister for Immigration. The dispute centred on whether Mr Elaraby met the criteria for a "remaining relative" visa under regulation 1.15(1)(c) of the relevant Migration Regulations. The case was heard by Judge Manousaridis.

The primary legal issue before the court was whether the Minister or the Tribunal was required to make a positive finding that an applicant for a "remaining relative" visa has no near relatives outside of Australia, or if it was sufficient to be satisfied of the negative proposition that such relatives do not exist. This involved considering the nature of proving negative propositions in Australian law.

Judge Manousaridis reasoned that the plain meaning of regulation 1.15(1)(c) required the Minister or Tribunal to be satisfied of a negative proposition: that the applicant does not have a near relative outside of Australia. The court observed that while proving a negative can be difficult, it is not impossible, and courts routinely deal with such situations through rules of evidence and the burden of proof. The judge found that there was no inherent difficulty in proving the specific negative proposition in regulation 1.15(1)(c) that would justify departing from its plain meaning. Consequently, the court concluded that the Tribunal had not made a jurisdictional error by finding that the regulation was not met without making a positive finding that the biological father was alive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the context of forensic proof it has been observed that the “difficulty of proving a negative is well known”;[26] and courts have sought to address these difficulties by rules governing the allocation of the legal burden of proof[27] or, more usually, at least in Australia, by rules governing the shifting of the evidentiary burden of proof.[28] Notwithstanding these perceived difficulties, however, there are a number of circumstances in which a court must positively be satisfied that a fact does not exist;[29] and in these circumstances it has been said that if “the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff”.[30] These matters necessarily imply that, at least in the eyes of the law, there is no principle of logic, and there is no aspect of the psychology of decision-making, that prevents a decision-maker from having the capacity to be satisfied of the truth of a negative proposition or, which amounts to the same thing, to be satisfied as to the non-existence of a fact or a state of affairs. [26] A v New South Wales [2007] HCA 10 at [60][27] See, for example, R. J. Faulkner “The Pearl and the Golden Thread: The Proof of Negative Averments – I”, H.K.L.J (1972), 169[28] See, for example, Apollo Shower Screens Pty Ltd v Building and Construction Industry Ling Service (1985) 1 NSWLR 561 (Hunt J)[29] See Cross on Evidence Tenth Australian Edition, LexisNexis Butterworths, [7070][30] Abrath v North Eastern Railway Company (1883) 11 QBD 440, at page 453 (Bowen LJ) This attitude to the nature and provability of negative propositions is supported by broader considerations. First, as Jeremy Bentham observed, although it is the case that “the only really existing facts are positive facts”, and that a “negative fact is the non-existence of a positive one, and nothing more”, “everything is a fact which is susceptible of being announced in a proposition”.[31] Second, on the basis of some elementary principles of predicate logic, it has been said with some force that, at least where the negative proposition in question does not assert a universal proposition, “there is no difficulty inherent in proof of negative propositions, despite persistent claims to the contrary”.[32][31] Quoted in J R Gulson The Philosophy of Proof in its Relation to the English Law of Judicial Evidence, London, 1905 at page 69[32] K W Saunders “The Mythic Difficulty in Proving a Negative”, Seton Hall Law Review, Vol 15, 171 (1985) The result of this discussion is that, on the plain meaning of the text of reg.1.15(1)(c) of the Regulations, before the Minister or Tribunal can be satisfied that an applicant is a “remaining relative”, the Minister or Tribunal must be satisfied of the existence of a negative proposition, namely, that the applicant does not have a near relative outside of Australia; and there is nothing about the nature of negative propositions in general or of the negative proposition expressed in reg.1.15(1)(c) of the Regulations in particular, that should lead a court to depart from the plain meaning of the text of reg.1.15(1)(c). It therefore follows, with respect, that McInnis FMA was clearly wrong in his view that “it is essential for the operation of reg.1.15(1)(c) for the Tribunal to make a finding of fact that the visa Applicant has an overseas near relative”. That, in turn, means the Tribunal in the case before me made no jurisdictional error by concluding that reg.1.15(1)(c) of the Regulations was not met without making a positive finding that the biological father was alive.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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