Isanan v Minister for Immigration
[2015] FCCA 1397
•29 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISANAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1397 |
| Catchwords: EVIDENCE – Whether evidence of time of death – evidentiary requirements where obligation to act informally and on substantial merits without regard to legal technicalities – whether evidence probative. WORDS AND PHRASES – “probative evidence”. |
| Legislation: Births, Deaths and Marriages Registration Act 1998 (WA), ss.42, 44(1) Evidence Act 1995 (Cth), s.190(3) Migration Act 1958 (Cth), ss.5F(2)(a), 65(1), 104, 353, 420(2)(a) Migration Regulations 1994 (Cth), Sch.2, cl.100.221(3)(b) |
| Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 77 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 |
| Applicant: | ELLEN ISANAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 156 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 1 May 2015 |
| Date of Last Submission: | 1 May 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Raftos |
| Solicitors for the Applicant: | James Chong Lawyers |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 156 of 2014
| ELLEN ISANAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
“Tempteth my better angel from my side”: Shakespeare, Sonnet 144
Ellen Aragon Isanan and Scott Douglas Treeby met in the city of angels, Angeles City, in the Philippines on 1 October 2009. Shortly thereafter Ms Isanan, a Filipino citizen, and Mr Treeby, an Australian citizen, commenced a relationship. On 10 April 2012 the 32 year old Ms Isanan and the 53 year old Mr Treeby were married in the Office of the Municipal Mayor, Daram, Samar, in the Philippines: see Court Book (“CB”) 13, 26-28, 61 and 82.
On 18 June 2012 Ms Isanan applied for a Class UF Spouse (Provisional) visa subclass 309 (“Provisional Partner Visa”) and a Class BC (Partner-Migrant) visa subclass 100 (“Permanent Partner Visa”): CB 1-46 and 56-60. In an undated letter attached to her application Ms Isanan wrote:
We promise to be as one forever. That’s why I’m applying this visa just to be with my husband forever.
CB 61.
Apart from holidays in Australia with Mr Treeby in the Australian winter of 2011 and the Australian summer of 2011-2012, it appears that Ms Isanan continued to reside in the Philippines. Then, on 11 January 2013, Ms Isanan was granted a Provisional Partner Visa. Eight days later on 19 January 2013 at around 10.40am Ms Isanan boarded a flight in the Philippines capital, Manila, bound for Singapore, and onwards to Perth, Western Australia. The scheduled time and date of arrival for Ms Isanan’s flight to Perth was 11.10pm (Australian Western Standard Time) on 19 January 2013: see CB 15 and Annexures EI-1 and EI-2 to Ms Isanan’s 14 June 2014 Affidavit (“Ms Isanan’s June 2014 Affidavit”).
Ms Isanan was not met at the airport by any member of Mr Treeby’s family, but rather by the boyfriend of Mr Treeby’s adult daughter. Ms Isanan said “Hello” to the daughter’s boyfriend, but otherwise it seems she was in silence driven by the boyfriend to Mr Treeby’s sister’s house: see Annexure EI-1 (being the transcript of a hearing before the Migration Review Tribunal on 22 April 2014 [“Tribunal Transcript” and “Tribunal” respectively]) to Ms Isanan’s 24 October 2014 Affidavit (“Ms Isanan’s October 2014 Affidavit”).
On arrival at Mr Treeby’s sister’s house Ms Isanan was greeted and cuddled by Mr Treeby’s daughter and his sister. Ms Isanan went to go to her husband’s room, but Mr Treeby’s daughter and sister stopped her, and then, in Ms Isanan’s own words:
They let me sit down and tell me, ‘he has gone.’
Tribunal Transcript, pages 6-8, the quote is from page 8.
A copy of Western Australian Death Certificate registration number 000906V/2013 certified by the Registrar of Births, Deaths and Marriages on 1 February 2013 and bearing the seal of the Government of Western Australia was in evidence before the Tribunal (“Death Certificate”). The Death Certificate indicates that Mr Treeby died on 19 January 2013. The cause of death is given as:
Hepatic failure (1 hour), Liver cirrhosis (20 years), Hepatitis C (20 years)
(Contributory Cause) Lymphoma (months)
On the Death Certificate next to the words “Name of Doctor” appears the name of “Dr N Dormer”.
CB 209 and Ms Isanan’s June 2014 Affidavit, Annexure EI-3.
On 25 January 2013 Ms Isanan signed a Form 1022 “Notification of Changes in Circumstances” for the purposes of s.104 of the Migration Act (“Notification of Changes”): Annexure EI-2 to Ms Isanan’s October 2014 Affidavit. The “Details of Changes” which appear in the Notification of Changes are as follows:
a)under the heading “Information which is no longer current” the following:
Scott Treeby passed away 7.40pm on 19 January 2013
b)under the heading “New correct details” the following:
Ellen arrived in Australia on 19 January 2013 at 11.30pm
c)under the heading “Declaration” the following appears:
WARNING: Giving false or misleading information is a serious offence.
17. I declare that information provided on or with this form is true and correct in every detail.
Under this warning and declaration Ms Isanan’s signature and the date 25 January 2013 appears.
The Notification of Changes form was stamped by the then Department of Immigration and Citizenship on 29 January 2013.
Mr Treeby was buried on 31 January 2013: see Death Certificate.
“Come not within these doors” Shakespeare, As You Like It, Act 2, Scene 3
On 21 March 2013 a delegate of the then Minister for Immigration & Citizenship refused Ms Isanan’s application for a Permanent Partner Visa: CB 113-116 (“Delegate’s Decision”).
On 10 April 2013 Ms Isanan made an application to the Tribunal for review of the Delegate’s Decision: CB 125-136.
On 4 February 2014 Ms Isanan was invited to a hearing before the Tribunal on 17 March 2014: CB 160-162. A postponement was requested, and granted: CB 168-171, and the Tribunal hearing proceeded on 22 April 2014: CB 263-265. The Tribunal Transcript indicates that at the Tribunal hearing:
a)the Tribunal correctly identified:
i)its task as reviewing the Delegate’s Decision to refuse Ms Isanan a Permanent Partner Visa because Mr Treeby had died before Ms Isanan entered Australia whilst holding a Provisional Partner Visa: Tribunal Transcript, page 2;
ii)the requirement for the grant of a Permanent Partner Visa being that at the time of the Tribunal making a decision that Ms Isanan be the spouse or defacto partner of her sponsoring partner, Mr Treeby: Tribunal Transcript, page 2;
iii)the exception in Sch.2, cl.100.221(3)(b) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) allowing a Permanent Partner Visa to be granted where an applicant has first entered Australia as the holder of a Provisional Partner Visa and the sponsoring partner (in this case Mr Treeby) has since died: Tribunal Transcript, pages 2-3; and
iv)that the issue for the Tribunal was a very narrow one, that is whether Ms Isanan first entered Australia as the holder of a Provisional Partner Visa after Mr Treeby died: Tribunal Transcript, page 3; and
b)Ms Isanan said that:
i)she signed the Notification of Changes, and that the information she provided concerning the date and time of Mr Treeby’s death and her arrival in Australia was obtained from Mr Treeby’s sister: Tribunal Transcript, page 3;
ii)she was picked up from the airport by the boyfriend of Mr Treeby’s daughter: Tribunal Transcript, page 4, and that she was a little surprised by that because she was expecting Mr Treeby’s daughter to pick her up: Tribunal Transcript, page 5;
iii)she did not talk to Mr Treeby’s daughter’s boyfriend other than to say “hello”, and he drove her to Mr Treeby’s sister’s house: Tribunal Transcript, page 6;
iv)she does not know what time she arrived at Mr Treeby’s sister’s house or what time her flight arrived in Perth: Tribunal Transcript, page 6;
v)Mr Treeby’s daughter and sister greeted her and told her of Mr Treeby’s death, and that having had an operation and been sick Mr Treeby had died in his sister’s house: Tribunal Transcript, pages 7-8;
vi)she did not know if Mr Treeby’s sister found Mr Treeby dead: Tribunal Transcript, pages 8-9;
vii)she thought that Mr Treeby died at night time: Tribunal Transcript, page 9;
viii)she does not remember any further information being given to her by Mr Treeby’s sister thereafter as she was upset and arrangements were being made for the funeral of Mr Treeby: Tribunal Transcript, page 10; and
ix)it was Mr Treeby’s sister who said that Mr Treeby died, Ms Isanan thought at around 7.00pm or maybe 7.30pm: Tribunal Transcript, pages 11-12.
The Tribunal member then turned to the barrister representing Ms Isanan at the Tribunal hearing (the same barrister appeared for Ms Isanan before the Court) and the following critical exchange occurred:
MS MOSS: Mr Raftos, it seems to me that – I mean, your client’s evidence is that her husband passed away before she got here.
MR RAFTOS: The problem is she’s relying on what she was told by her sister-in law. Firstly, that’s hearsay and, secondly, it begs the question: where did she get it from. I think the key issue is it’s the doctor who certified what time and I think that’s the answer not what the sister says.
MS MOSS: You haven’t provided that.
MR RAFTOS: No. And if you’d be obliged, we’ll try and seek that and it’s ---
MS MOSS: Well, it’s obviously critical.
MR RAFTOS: It is. That’s something we’d need to seek. We think we also need to seek the exact time the flight landed. We are getting down to a question of hours…
Tribunal Transcript, page 12.
The exchange between the Tribunal member and Ms Isanan’s barrister continued, and after reference to some case law, the following exchange occurred:
MR RAFTOS: In effect, that case [which was a reference to Gajjar v Minister for Immigration & Anor [2013] FCCA 1859; (2013) 281 FLR 370 (“Gajjar”)] for my client says the airspace above Australia – if she’s in Australian airspace, that’s not good enough. She has to be at the airport to come within the … [migration] zone, but we would say the plane has to be actually just landed. I’d refer you to section 43 of the act. So if the plane has landed and he hadn’t been pronounced dead, we think she would come within – but if the plane was still in the air at the time of death then she wouldn’t. I think it’s really that clear.
MS MOSS: Well, I mean, all of the – I’ve got a great deal of evidence over the Easter weekend provided by you. I’ve got no death certificate with the time on it from the doctor.
MR RAFTOS: No.
MS MOSS: I’ve got nothing confirming the time of arrival. All that I have – and this has been a matter before the delegate. It’s very clearly set out in the delegate’s decision. This is the nub of the issue.
MR RAFTOS: Yes.
MS MOSS: This is the nub of it.
MR RAFTOS: Yes.
MS MOSS: Photographs of them together, evidence, anything like that is really – does not get to the issue before me.
MR RAFTOS: No. I think that’s been – no. I think that’s been put forward, really going to – if you’re not satisfied, and referring to the minister, I think that’s why those matters have been put forward to you, but the two key issues are: what time did that flight land and what was the actual time of death. They don’t put the actual time of death on death certificates.
MS MOSS: No, it’s not on the death certificate.
MR RAFTOS: No. And I’ve looked at the state act and that doesn’t indicate when someone is deemed dead. So I think we need to get perhaps the doctor’s notes or testimony from the doctor.
MS MOSS: Any why hasn’t that been done?
MR RAFTOS: I cannot tell you why, ma’am, that hasn’t been done. I would request if we could have an extra week or two to supply that.
MS MOSS: All right. I’m prepared to give you an extra 14 days from today.
MR RAFTOS: Thank you.
MS MOSS: So if you want to provide me with anything from the doctor, any details of the landing time of the plane, if you want to make any submissions to me in relation to Gajjar’s case and any other submissions. I mean, all I have before me at the moment is, you know, the notice of change in circumstances which say he passed away at 7.40 and that she arrived – your client arrived at 11.30 pm.
MR RAFTOS: Yes.
MS MOSS: And there’s been no further evidence from your client ---
MR RAFTOS: No.
MS MOSS: --- confirming those times or otherwise. I mean, I haven’t had presented to me the sister-in-law to ---
MR RAFTOS: No. And, ma’am, you’re probably aware that there is a probate proceeding on foot.
MS MOSS: Yes, I’ve seen the papers.
MR RAFTOS: And that doesn’t necessarily mean what the time the sister-in-law said isn’t correct, but it does need to be considered with caution and I’d submit the best source is the doctor (indistinct) the doctor.
MS MOSS: All right. If you can provide me with some evidence from him. I mean, I don’t think we can take the matter any further today.
MR RAFTOS: No.
Tribunal Transcript, pages 13-14.
On 7 May 2014 Ms Isanan’s lawyers wrote to the Tribunal and made submissions in relation to the Tribunal hearing and the matters raised therein. The submission was relatively lengthy, running to over five and a half pages. In summary, however, it was said on Ms Isanan’s behalf that:
a)information had been submitted to the Tribunal from Air Services Australia indicating that the flight on which Ms Isanan travelled to Australia and landed in Perth landed at 11.00pm on 19 January 2013: CB 270, although later there was a further assertion that the actual time at which the flight landed was 11.10pm: CB 273;
b)the relevant test for the grant of the Permanent Partner Visa was dependent upon Ms Isanan having entered Australia’s migration zone before Mr Treeby died, and that she was physically present in the migration zone: CB 270-271;
c)the decision of this Court in Gajjar determined that the migration zone did not include the airspace above Australia’s land and sea: CB 271;
d)the Delegate’s Decision did not point to any evidence that showed that Mr Treeby’s time of death was before 11.00pm: CB 271;
e)the Tribunal was not bound by the rules of evidence, and that there was no particular onus on Ms Isanan, and cited well established principles, including the following:
i)the onus of proof is not an appropriate concept for administrative enquires and decision-making;
ii)the relevant facts of individual cases have to be supplied by the applicant in as much detail as is necessary to enable an examiner to establish the relevant facts;
iii)the decision-maker is not required to make the applicant’s case for the applicant, and is not required to accept uncritically any or all of the allegations made by an applicant,
see CB 271, citing Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 278 per Foster J; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J (“Prasad”) and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J;
f)there is no general duty on the Tribunal to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the Migration Act: Minister for Immigration & Citizenshipv SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15: CB 272 (“SZIAI”);
g)there can be no doubt that the relationship between Ms Isanan and Mr Treeby was genuine and would have continued but for Mr Treeby’s death: CB 272;
h)there was no evidence which showed that Mr Treeby died before Ms Isanan arrived in the migration zone, except Ms Isanan’s statement to that effect: CB 273;
i)Ms Isanan had been frank in telling the Tribunal that she had been told that Mr Treeby had died before she arrived, but said that there was no evidence of that apart from what Ms Isanan had been told by Mr Treeby’s relatives, and that any statements attributable to Mr Treeby’s relatives should be treated with caution, as there was no independent evidence of the time of Mr Treeby’s death: CB 273;
j)it would be prohibitive in terms of cost to obtain evidence of the time of death of Mr Treeby: CB 273-274;
k)Ms Isanan was not aware of the name of the doctor who attended on Mr Treeby at the time of his death and did not now know the doctor’s name because her relationship with Mr Treeby’s relatives had become fractious over inheritance issues: CB 273;
l)there was evidence of an inheritance dispute between Ms Isanan and Mr Treeby’s relatives: CB 273-274;
m)there were difficulties in forensically establishing Mr Treeby’s time of death, and referred to different manners of establishing the time of death including when a person was brain dead and when a person was dead in a cardio-pulmonary sense: CB 274-275;
n)the Tribunal was not bound by technicalities, legal forms or the rules of evidence: CB 275;
o)the Tribunal must operate on the basis of rationally probative evidence, citing Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 31 ALR 666 at 685 per Deane J, and submitted that:
… it would not be open for the Tribunal to find that the sponsor had died prior to 11.10pm and indeed it would also not be open for the Tribunal to make such finding by inference because there would be no evidential basis for such inference.
CB 275; and
p)the Tribunal’s role was to make the correct and preferable decision: citing De Brett Investments Pty Ltd v Australian Fisheries Management Authority [2004] AATA 704; (2004) 82 ALD 163 at 194 per Forgie DP, Member McLean.
The Tribunal found that Ms Isanan and Mr Treeby were validly married for the purposes of s.5F(2)(a) of the Migration Act. Relevantly, the Tribunal Decision then provides as follows:
Are the other requirements for a spousal relationship met?
12. After their marriage Ms Isanan lodged her application for a partner visa on 18 June 2012. She was granted a provisional partner visa (subclass 309) on 11 January 2013, following which she arrived in Australia on 19 January 2013. Ms Isanan subsequently provided to the Department a Notification of Change of Circumstances that her partner passed away at 7.40pm on 19 January 2013 prior to her arrival in Australia at 11.30pm that day. His death certificate confirms his death on 19 January 2013 although it makes no mention of the time of his death. In her evidence before the Tribunal she confirmed that the information she provided in the Notification of Change of Circumstances which was signed and dated by her on 25 January 2013 was true and correct. She indicated that the information regarding the timing of her husband's death had been given to her by her sister-in-law. She indicated that on arrival at her sister in law's house her sister-in-law told her that her husband had already passed when she arrived and that he passed away at their house. She indicated that later on she found out from her sister in law that her husband had passed away around 7 or 7.30pm that same evening. Ms Isanan provided submissions following the hearing which stated that according to Air Services Australia her flight landed at Perth airport at 11.10pm on 19 January 2013 and the Tribunal so finds.
13. On the basis of the applicant's written notification to the Department, which evidence she confirmed was true and correct at the Tribunal hearing, the Tribunal finds that Ms Isanan’s husband passed away at 7.40 pm on 19 January 2013. The Tribunal prefers this evidence in relation to the timing of her husband's death as it was the evidence provided closest in time to his death.
14. In the circumstances where the sponsoring partner has died the relevant subclause is 100.221(3)(b) which provides that the applicant meets the subclause if the applicant would meet the requirements of subclause (2) or (2A) except that, after the applicant first entered Australia as the holder of the visa first mentioned in paragraph (a), namely the subclass 309 visa, the sponsoring partner has died.
15. Section 5 of the Act provides the following relevant definitions:
“enter Australia”, in relation to a person means enter the migration zone
“migration zone” means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes;
(a) land that is part of the state or territory at mean low water; and
(b) sea ·within the limits of both a State or Territory at mean low water; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a state or territory but not in a port.
16. Given that Ms Isanan was on a flight to Australia when her partner died she had not yet entered the migration zone for the purposes of the Act. She therefore does not meet cl.100.221(3)(b).
17. The Tribunal is not satisfied that Ms Isanan satisfies any of the alternative subclauses (2), (2A), (4), or (4A).
18. Accordingly the applicant does not meet cl.100.221.
CONCLUSION
19. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
20. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
CB 284-285.
“What judgment shall I dread doing no wrong?”: Shakespeare, The Merchant of Venice, Act 4, Scene 1
On 11 June 2014 Ms Isanan applied to this Court for judicial review of the Tribunal Decision (“Judicial Review Application”). The Judicial Review Application contains a single ground of review as follows:
1. The second respondent erred in making a finding that the applicant’s husband had passed away at 740pm by relying on unverified hearsay evidence.
(Transcribed from the Judicial Review Application without amendment).
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ms Isanan had to make out the factual basis of her application: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J. The Tribunal was not obliged to make Ms Isanan’s case for her: Prasad at 169-170 per Wilcox J.
There is no dispute, and was none before the Tribunal either, that Ms Isanan was required to be in the migration zone at the time of her husband’s death, and that on the basis of Gajjar, that required the plane on which she was flying to Australia to have landed in Australia, and, relevantly, for present purposes, landed at Perth International Airport before the time of Mr Treeby’s death.
The Court noted that the Notification of Changes contained a declaration, completed by Ms Isanan that it was “true and correct in every detail”. Ms Isanan having confirmed at the Tribunal hearing that the Notification of Changes was true and correct, the Tribunal accepted the Notification of Changes and its content as to the time of Mr Treeby’s death, and found that this was the evidence closest in time to the actual time of Mr Treeby’s death. Ms Isanan now complains that the Tribunal relied on hearsay evidence and that there was no rationally probative evidence before the Tribunal in relation to the time of death of Mr Treeby. That argument runs into insuperable hurdles: firstly, that the only evidence before the Tribunal as to the actual time of Mr Treeby’s death put it at between 7.00pm and 7.30pm, or at 7.40pm, and secondly, the evidence which was before the Tribunal in the form of the Notification of Changes was, for reasons which follow, rationally probative evidence able to be considered by the Tribunal.
Section 353 of the Migration Act provides as follows:
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
In Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307; (2013) 133 ALD 39; (2013) 59 AAR 221 (“Rawson Finances”) the Full Court of the Federal Court of Australia dealt with the concept of rationally probative evidence in the context of a tribunal which was not a court and which was not bound by the rules of evidence. Helpful passages from Rawson Finances are extracted in Nguyen & Anor v Minister for Immigration & Anor [2013] FCCA 1441 at [62]-[64] per Judge Barnes (“Nguyen”) as follows:
62. In Rawson Finances what was in issue was whether a particular finding of the AAT was or was not open on the evidence or whether there was no evidence capable of supporting that finding. Before considering that issue Jessup J concluded (at [62]) that having regard to the legal framework within which the AAT’s fact-finding function was set, while it was not a court and was not bound by rules of evidence, “[i]t must, however, proceed by reference to “rationally probative evidence” rather than on mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685; 4 ALD 139 at 156; 1A IPR 708 at 724.’” However his Honour suggested that if the particular finding in issue had been made by inference, no error of law would be established as long as there was some basis for the inference. Jessup J pointed out at [66] that:
In hard cases, it is often the function of a tribunal of fact to resolve controversies as between relatively “evenly balanced” evidentiary material. Once a finding is made one way or the other, it resolves the issue of even balance. It is for the Tribunal of fact to make that finding, and no error of law is disclosed merely by reason that the finding was made upon primary materials which appeared to be evenly balanced. It is, of course, another matter altogether if it appears that the finding was the result of guesswork or conjecture, but such a conclusion is not to be reached merely because the Tribunal had evenly balanced material before it.
63. In the same case Jagot J (with whose reasons Nicholas J agreed) stated (at [83] – [84]):
… if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal.
The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction, which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Australian Broadcasting Tribunal v Bond at 359/360) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be ‘completely arbitrary’ (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at 16, Minister for Immigration & Multicultural Affairs v Eshetu [1999] 197 CLR 611; [1999] HCA Q1 at 145 and Minister for Immigration & Multicultural Affairs v SGLB [2004] 78 ALD 224; [2004] HCA 32 at 38), the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of fact and no logical grounds to support the fact, the finding of that fact will involve an error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.
64. Her Honour explained that, as Buchanan J had noted in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 at [125], there is “a difference between a finding not reasonably open on the evidence and a finding reached on other than logical grounds” and suggested that while the former involved findings not supported by some evidence and was always an error of law, the latter merely involved faulty reasoning and generally would not be characterised as an error of law. Jagot J stated that where what was suggested was illogicality or faulty inferential reasoning, the test was not whether there was an error in logic or reasoning, but whether there was no foundation for the conclusion reached (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [130], [131] and [135]).
The Court notes that under s.353(1) of the Migration Act the Tribunal was required to provide a review mechanism which was “informal”, and under s.353(2) of the Migration Act the Tribunal was not bound by technicalities, legal forms or rules of evidence and was directed to act according to substantial justice and the merits of the case. In Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 297 ALR 225; (2013) 87 ALJR 618; (2013) 139 ALD 181 at [14] (“Li”) the Chief Justice of the High Court of Australia referred to what was said by the majority in the New South Wales Court of Appeal (“Court of Appeal”) in Qantas Airways Ltd v Gubbins & Ors (1992) 28 NSWLR 26; (1992) 28 ALD 538; (1992) 45 IR 292 (“Gubbins”) to the effect that words such as those in s.353(2) of the Migration Act have no fixed legal meaning independent of the statutory context in which they are found, and therefore, as was observed in Li, any tribunal acting in accordance with them is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”: Li at [14] per French CJ; see also Gubbins at 30 per Gleeson CJ and Handley JA.
Of the nature of the discretion imported by a statutory provision that a tribunal not be bound by the rules of evidence and be required to consider the substantial merits of a case without regard to legal technicality or form, and with particular reference to s.353 of the Migration Act, the following observations were made in Li:
12 Section 420 of the Act gives the same legislative directions to the RRT as s 353 gives to the MRT. The direction in subs (1) of each provision is, as was said in SZGUR, a “requirement imposed on the Tribunal, in the discharge of its core function”. … That requirement is formulated in terms of broad legislative objectives which are, to some degree, “inconsistent as between themselves.” … They are not expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them. That view is well supported by observations about s 420 in the judgments of this Court in Minister for Immigration and Multicultural Affairs v Eshetu. … There was a focus in that case on the interaction between s 420 and the limited grounds for judicial review of Migration Act decisions in the Federal Court which were enumerated in s 476 as it then stood. Nevertheless, it was the broad facultative language of s 420 that supported the conclusion that it did not give rise to grounds for judicial review based on a failure to comply with its exhortations. Gleeson CJ and McHugh J described its function as “intended to be facultative, not restrictive” and “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.”… Gaudron and Kirby JJ described s 420 as determining the general nature of review proceedings and held that there was no basis for concluding that it operated to mandate specific procedures to be observed by the RRT or the method by which it was to reach its decision. … Gummow J agreed with what Lindgren J had said, particularly about s 420(1), in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. … Lindgren J pointed to the difficulty of invoking a failure to comply with s 420(1) as a ground of non-performance of a requisite procedure for the purposes of s 476 of the Act. Although his analysis was based upon the interaction with s 476, it threw up the general difficulty of invoking s 420(1) and similarly s 353(1) as giving rise to grounds for judicial review. A complaint about alleged non-compliance with s 420(1) might require consideration of the RRT's staff and financial resources and its internal organisations and practices. His Honour said: …
“A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in [s] 420(1), would not necessarily establish that the [Tribunal] had not been pursuing the specified objective.”
13 The requirements of s 353(2) are in the same terms as those applied to the RRT by s 420(2) of the Act. The language is familiar. Its ancestry dates back to statutory directions to Courts of Requests in the 17th century to make such orders “as they shall find to stand with equity and good conscience”. … That statutory formula evolved and was applied to tribunals in Australia both before and after Federation. An early example was the statute re-establishing the Court of Requests in the Colony of New South Wales in 1842, … which became the Small Debts Court, and was required to decide matters “in a summary way, and according to equity and good conscience”. …
14 The rolled-up direction to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins. … As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found. … So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
15 Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. … The two paragraphs of s 353(2)“describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals.”… Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. … Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error. …
Li at [12]-[15] per French CJ (footnotes omitted).
In Gubbins the majority of the Court of Appeal discerned no error in an equal opportunity tribunal acting on circumstantial evidence of complainants relying upon representations made by an employer which were not made directly to the complainants, but to solicitors and union officials acting for other complainants in a similar interest, the Court of Appeal assuming (but not being convinced) that it would not have sufficed as evidence in the ordinary courts, and observing that a tribunal did not err in law merely because it acts on evidence which would not be admissible in a court or because there is no legally admissible evidence to support any of its findings: Gubbins at 32 per Gleeson CJ and Handley JA.
Of not dissimilar statutory provisions to those in s.353 of the Migration Act setting out the performance and functions of the then Fair Work Australia (“FWA”), the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler & Ors [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 77 (“Lawler”) observed that the members of FWA:
a)were bound to act judicially in that they were obliged to respect and apply traditional notions of procedural fairness and impartiality;
b)were to proceed without unnecessary technicality and as informally as the circumstances permit; and
c)had a statutory mandate to get to the heart of matters as directly and effectively as possible.
Lawler at [25] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
In WZANF v Minister for Immigration and Citizenship [2010] FMCA 110 (“WZANF”) the Federal Magistrates Court stated “[i]ssues which would trouble a federal court, such as the hearsay nature of a newspaper article, and whether the discretion in s.190(3) of the Evidence Act 1995 (Cth) (“Evidence Act”) ought to be exercised, do not arise before the Tribunal” and cited s.420(2)(a) of the Migration Act, being, for claims before the Refugee Review Tribunal, the equivalent provision to s.353(2)(a) of the Migration Act: WZANF at fn.74 per Lucev FM.
It is evident from the foregoing authorities that the Tribunal was:
a)not obliged to act only upon evidence which would have been legally admissible in a court; and
b)able to act on hearsay evidence, including evidence such as the Notification of Changes.
The Notification of Changes was therefore probative evidence of the time of Mr Treeby’s death. The Tribunal accepted the Notification of Changes as evidence of the time of death, and was able to do so even if it was hearsay evidence. The Tribunal was entitled to accept the Notification of Changes as evidence of Mr Treeby’s death, and to find that the time of his death based upon that evidence was 7.40pm on 19 January 2013.
The submission by Ms Isanan that she was not aware of the name of the doctor who attended on Mr Treeby at the time of his death cannot be sustained. The name of the doctor “Dr N Dormer” appears on the Death Certificate: CB 209 and Ms Isanan’s June 2014 Affidavit, Annexure EI-3. The Court observes that in the case of a person’s death a doctor who was responsible for the person’s medical care immediately before the death, or who examined the person’s deceased body, is required within 48 hours after the person’s death to certify in an approved form the cause of death and to give the certificate to the person responsible for notifying the Registrar of Births, Deaths and Marriages in Western Australia of the death: Births, Deaths and Marriages Registration Act 1998 (WA), s.44(1) (and see s.42 for persons responsible for so notifying the Registrar of Births, Deaths and Marriage of a death). No evidence was put before the Tribunal of any endeavours to contact Dr Dormer or to have him provide evidence to the Tribunal. Ms Isanan had the opportunity to do so. She was represented both by Counsel and a firm of solicitors at the hearing before the Tribunal. The Tribunal allowed time for evidence of this specific type to be provided to the Tribunal, the Tribunal having identified (and Ms Isanan’s Counsel having agreed) that the time of Mr Treeby’s death, and the evidence of it, was the key issue in the Tribunal’s determination as to whether Ms Isanan qualified for a Permanent Partner Visa. There was no evidence of the actual or estimated cost to obtain evidence of the time of death of Mr Treeby, or whether or not it would be prohibitive. Furthermore, none of the lawyers representing Ms Isanan requested, or even appear to have suggested, Dr Dormer be required to attend the Tribunal hearing. In the Response to Hearing Invitation at CB 178-179 the lawyers for Ms Isanan indicated that they did want oral evidence taken from another person (that is, other than Ms Isanan), but that person was “TBA”, that is, to be advised, and there is no evidence that such advice was given. Furthermore, as the Tribunal noted, much evidence in relation to other matters was placed before the Tribunal. But no evidence from Dr Dormer was submitted, or, on the evidence, even apparently sought by Ms Isanan’s lawyers, and there was no request to the Tribunal to seek to have him appear as a witness before the Tribunal at the Tribunal hearing, either before or after Ms Isanan was given additional time by the Tribunal in order to produce “medical evidence” of the time of Mr Treeby’s death.
The Court notes that the Tribunal was aware of the inheritance proceedings involving Ms Isanan and members of Mr Treeby’s family, and there is no evidence that the Tribunal did not have appropriate regard to the fact of those proceedings in arriving at a factual conclusion on the evidence before it as to the time of Mr Treeby’s death. In any event there is no evidence that, on the day of Mr Treeby’s death or in the lead up to the completion of the Notification of Changes, the issue of inheritance affected the information given to Ms Isanan as to the time of Mr Treeby’s death.
Absent the Notification of Changes the Tribunal would have been entitled to find that there was no evidence capable of satisfying it as to the time of Mr Treeby’s death, and in the absence of such satisfaction it could still have dismissed Ms Isanan’s claim on the basis that she had not satisfied the Tribunal that she was in Australia’s migration zone at the time of Mr Treeby’s death: Migration Act, s.65(1).
Ms Isanan did not put before the Tribunal any evidence that Mr Treeby died at any time on 19 January 2013 after Ms Isanan arrived in Australia. There was evidence before the Tribunal that Ms Isanan landed in Australia at 11.00pm at the earliest and 11.30pm at the latest, on 19 January 2013, and, surprisingly to her, was met at the airport by the boyfriend of Mr Treeby’s daughter when she had expected to be met by Mr Treeby. There was evidence that Mr Treeby died suddenly, within an hour, of hepatic failure. Even without the evidence of the Notification of Changes it would seem it would have been open on the evidence for the Tribunal to conclude that it was more likely than not that Mr Treeby had died prior to Ms Isanan arriving in Australia.
The Tribunal invited Ms Isanan, who was represented at the Tribunal hearing by Counsel and who had solicitors acting for her, to file post-hearing submissions and provide any medical evidence in relation to the time of death of Mr Treeby. Ms Isanan filed post-hearing submissions but did not provide any evidence (medical or otherwise) of the actual time of death of Mr Treeby. As noted above, there was no evidence from Dr Dormer, and no request to the Tribunal to request that he give evidence. The latter, if provided, might have required the hearing to be re-opened, and if capable of establishing the actual time of Mr Treeby’s death, a re-opening of the Tribunal hearing would have been entirely reasonable. But there was no indication from Ms Isanan’s legal representatives that evidence as to the actual time of Mr Treeby’s death might be available, and no request for a re-opening of the Tribunal hearing. In those circumstances, there was no obligation on the Tribunal to make enquiries about information which Ms Isanan could herself have provided, and in respect of which she was afforded a proper and adequate opportunity to do so: SZIAI; Minister for Immigration & Border Protection v SZRTF [2013] FCA 1377 at [48] per Katzmann J; Hinton v Minister for Immigration & Border Protection [2015] FCA 408 at [73] per McKerracher J; Nguyen at [88] per Judge Barnes, or to seek to make Ms Isanan’s case for her: Prasad.
The Tribunal was required to make a decision on the evidence before it as to whether Mr Treeby had died before or after Ms Isanan had entered Australia’s migration zone. There was evidence that Mr Treeby had died before Ms Isanan had entered Australia’s migration zone, and that Ms Isanan had initially accepted that Mr Treeby had died before Ms Isanan had entered Australia’s migration zone. On the evidence the Tribunal was entitled to conclude, and could in any event infer, that it was likely that Mr Treeby died before Ms Isanan entered Australia’s migration zone, and Ms Isanan can point to no evidence that Mr Treeby did not die until after she entered Australia’s migration zone. In all of those circumstances, the finding made by the Tribunal was reasonably open to it. The Tribunal Decision was not illogical, did not take into account irrelevant considerations or ignore relevant considerations, and Ms Isanan was clearly afforded procedural fairness by being offered an opportunity to provide whatever evidence she could of the time of Mr Treeby’s death, and other than evidence which indicated that Mr Treeby died at 7.40pm on 19 January 2013, she was not able to provide any other, or any contradictory, evidence of the time of Mr Treeby’s death, and certainly no evidence that Mr Treeby was alive at the time Ms Isanan entered the Australia’s migration zone zone.
It appears that Ms Isanan’s real complaint is that the Tribunal placed too much weight on the Notification of Changes. That was a matter for the Tribunal. It is well-established that the weight to be given to evidence and material before the Tribunal is a matter for the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZGNJ v Minister for Immigration& Multicultural & Indigenous Affairs [2006] FMCA 91 at [85] per Lloyd-Jones FM.
“Not from the stars do I my judgment pluck”: Shakespeare, Sonnet 14
On the basis of the matters set out above the Court has concluded that the Tribunal Decision did not involve jurisdictional error. The Judicial Review Application must therefore be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 May 2015
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