Jones v Minister of State for Immigration and Ethnic Affairs

[1996] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P37 of 1995

B e t w e e n -

ESTER JONES

Applicant

and

MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1996, AT 12.20 PM

Copyright in the High Court of Australia

MR R.E. LINDSAY:   May it please the Court, I appear with my learned friend, MR H.N.H. CHRISTIE, for the applicant.  (instructed by C.A. Bahemia, Legal Aid Commission of Western Australia)

MR W.S. MARTIN, QC:   May it please the Court I appear with my learned friend, MR P.J. CORBOULD, for the respondent department.  (instructed by the Australian Government Solicitor)

TOOHEY J:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, the primary question upon which special leave is sought is whether generalised findings that various witnesses called by the IRT were unreliable amounts to satisfaction of the requirements of section 135 of the Migration Act, and in particular, the requirements under section 135 that the decision maker make findings as to material questions of fact and that the decision maker set out the evidence upon which those findings are based.

TOOHEY J:   Is that really the question, Mr Lindsay, or is it whether ‑ ‑ ‑

MR LINDSAY:   Your Honour, in the applicant’s submission ‑ ‑ ‑

TOOHEY J:   Mr Lindsay, what I was asking you was whether in fact the question was as you have enunciated it or whether the question is simply whether the Tribunal, having found it impossible to rely upon the evidence of the witnesses, was unable to reach that state of satisfaction required for the regulations to operate.

MR LINDSAY:   Your Honour, I recognise that there may be circumstances in which a Tribunal may be left in a state of uncertainty, but it is our submission that that situation had not been reached here.  What I submit the Tribunal ought not to have done was to make, in effect, blanket indiscriminate findings that various witnesses are unreliable, and thereby conclude that the applicant could not succeed.

TOOHEY J:   That is one way of putting it, but you really need to direct that submission to the language of the regulations, do you not?  I mean, unless the Tribunal is able to be satisfied by the evidence in terms of the regulations, then how could your client succeed?

MR LINDSAY:   Certainly they would have to be satisfied, but one bears in mind that their role is as an adjudicative non‑adversarial tribunal.  Their, in effect, conclusion was that they were left in a state of uncertainty and they could easily have had recourse to the department file which was before them, and a couple of witnesses are referred to in that file:  the sister of the applicant, Angelina Fabila, and Mr Allan Lawrence, who had submitted statutory declarations to the effect that they considered the marriage of the applicant and Mr Jones to be genuine and continuing.

That was one thing which was not only open to them but, of course, being an inquisitorial investigative tribunal, in my submission, it was something which they should have done.  There is no reason to believe that that evidence was not available to them.  Secondly, the Tribunal, while referring to four witnesses as being unreliable, did not refer to two others - one being Melia Jones, the applicant’s daughter by an earlier liaison; and secondly, Mrs Mundy, the mother of Mr Mundy who testified, to the effect that Mrs Mundy’s evidence was that the couple were very genuine and very happy.

TOOHEY J:   Mr Lindsay, were those matters put to the Full Court?

MR LINDSAY:   They were, your Honour.  I only got a copy of the transcript of the argument yesterday, but counsel for the applicant in the Full Court, Mr Schoombee did put to the Full Court the matter that Melia Rose and Mrs Mundy had not been impugned.  He also put to the court that left in a state of uncertainty they could then have recourse to the evidence contained in the documents and the department’s file and should have done so.  He also alluded to the various provisions, pointing out the investigative nature of the IRT and, of course, that it holds responsibility and control for the call of witnesses, and of course, the applicant has no right to examine or cross‑examine.

Your Honour, in my submission, the authorities suggest that really, if one applies a rule of thumb as to what constitutes satisfaction of the requirements of section 135, it does see reasons demonstrate the underlying reasoning processes of the Tribunal and, in my submission, by making blanket assertions that certain witnesses - various witnesses - are not to be believed without any analysis of why that is so, they are not disclosing the underlying reasoning.  If it is regarded that a pure finding - blanket finding - that witnesses are unreliable is a finding on a material question of fact, then certainly there was not reference to evidence to support that conclusion.  That is a requirement of section 135.

So, your Honours, we say that this was a case where the responsibility rested with the Tribunal to attempt to resolve, if they could, uncertainties in the evidence.  Furthermore, with due respect to the views of the Full Court, it is a case where there was evidence, in my submission, which was not only common ground, but was not really dependent upon the assertions of the witnesses who the Tribunal chose to find unreliable.  For example, at the time of the IRT hearing it was more than two years after the applicant had made her application.  There had been cohabitation throughout that period, there were other factors such as Melia Rose, the daughter, who gave evidence, which was not impugned, to the effect that she referred to the spouse as Papa Harry, and there was evidence also from her that Mr Mundy slept apart from the applicant.

TOOHEY J:   In taking us to these matters you are really inviting us to review the decision below.  This is a special leave application.

MR LINDSAY:   Yes, indeed, your Honour, and I seek to link it to the question of the findings on material questions of fact that if one is asked a question, “Was it possible to make findings of fact which were not of an indiscriminate blanket nature?”,  I say, your Honour, they could have done so and they should have done so.  So, your Honour, I submit for those reasons that there were not only options open to them but, given their responsibilities to the Tribunal, options they should have taken, particularly as their ultimate conclusion is not that this is not a genuine continuing marriage, but they are not satisfied on the evidence that it was.  Your Honour, the IRT concluded at page 124, lines 29 to 37, that whatever the applicant’s motives for marrying Mr Jones, primarily for the sake of gaining permanent residency, is not on its own determinative of the issues. 

When considered in the light of the other circumstances, the evidence is clearly deficient in disclosing a mutual commitment to shared life to the exclusion of others.  There was no setting out in the reasons of the Immigration Review Tribunal of the evidence which failed to show mutual commitment, there was no indication of whether it was on that ground or whether it was on the ground that they were not satisfied as to exclusivity, that the applicant failed. 

Your Honours, so far as that was the primary ground, I submit that it is important because it is a matter of general importance and certainly in the interests of administration of justice, otherwise, it is open to tribunals to make, in effect, a blanket finding that witnesses are not credible and, in effect, to hide behind that kind of broad assertion or finding, and it is, therefore, impossible to detect error on the part of the applicant.  Secondly, it is relevant, of course, to section 137 which allows the Minister to overturn in favour of the applicant a decision of the Tribunal where he or she considers it in the public interest.  Obviously, the Minister cannot do that unless the Minister understands the underlying reasoning processes.

The second issue, your Honours, relates to the test applied.  My friend raises the point that the Dhillon test was not challenged.  On examination of the transcript, it would probably be correct to say that counsel did not say that the Dhillon test was wrong ‑ ‑ ‑

GUMMOW J:   Challenged in the Full Court of the Federal Court?

MR LINDSAY:   Yes, in the Full Court, your Honour, the position was ‑ ‑ ‑

GUMMOW J:   That is what we are dealing with.

MR LINDSAY:   The counsel for the applicant contended that whilst Dhillon was not wrong, the test was not all‑embracing and that it was relevant to the question of formation of the marriage but, as to the continuing and genuine ongoing nature of the marriage, wider criteria should be examined.  He referred to the case of Tang involving de factos where they held that exclusivity in the sense of not having other sexual partners was not determinative.

So there was not a direct frontal assault upon Dhillon but, at the same time, it was contended that the Dhillon test was not all‑embracing.  If your Honours were to regard that as really raising a fresh point of law, then I would invite your Honours to it is appropriate because it would not have altered the manner in which the respondents conducted their case.  It would not have made any difference to that.  In my submission, looking at ‑ ‑ ‑

GUMMOW J:   There is a reference - at page 200 of the record in the judgment of the Full Court, line 10 and following, in Justice Nicholson’s judgment.

MR LINDSAY:   Yes.  That is so, your Honour, that is what Justice Nicholson says and, as I say, my point is not that there was a direct assault upon the test but that counsel for the applicant did raise in the Full Court that the test was limited, and he mentioned the case of Tang in that context, and there was also a comment in the transcript - my friend has got copies of the transcript as well - from Justice Jenkinson that there was an issue what “genuine” and “continuing” meant.  But, certainly, it is true that it does not appear to have been in the centre of the applicant’s argument.

I would say, your Honour, in regard to the Dhillon test that, in my submission, it is not appropriate considering really the dynamic concept involved in a marital relationship which is genuine and continuing.  When one reads the actual criteria set out in the IRT reasons, your Honours will see that - it is at page 121, line 5, if one starts at the preceding page, where it talks about the “prescribed criteria”, and then it has to be shown:

that, at the time when the application for the permit is decided:
(a) the Applicant:
(i) is the spouse of:
(A) an Australian citizen -

and then over the page, “who” - that is, the spouse:

(E) has a marital relationship with the Applicant that is genuine and continuing -

So it would appear that the provision is concerned with whether there is a genuine and continuing marital relationship on the part of Mr Jones with the applicant, put in that form.  No doubt that involves looking at the applicant’s continuing genuineness as well, but it is significant that the reasons of the IRT do not really touch upon Mr Jones’ comments about his affection and devotion, and various objective facts such as the fact that they had lived together for over two years at the time of the hearing.

Your Honours, I say in conclusion to this that, in my submission, bearing in mind too that the notion of onus has been eschewed where investigative tribunals have to make determinations and where one has evidence that, in effect, they can live together for this length of time and where one considers too that they both express devotion to each other and the child, whose evidence was not impugned, expressed devotion to the applicant spouse, it would be, in my submission, unreasonable for a family to be really uprooted, which it would.  Of course, the applicant would return to the Philippines and the spouse would have to fend for himself or go with her to the Philippines, and as far as the child is concerned ‑ ‑ ‑

TOOHEY J:   Mr Lindsay, these matters are not really within the scope of your proposed ground of appeal, are they?

MR LINDSAY:   Well, your Honour, only in the sense that I submit that it is perhaps important to the interest of the administration of justice, bearing in mind that there was this other evidence to which the Tribunal could have had resort when considering this question and, indeed, in light of their responsibilities, and the control which they have on the process, should have referred to these other sources.  Those are my submissions.

TOOHEY J:   Yes, thank you, Mr Lindsay.  Mr Martin, we need not trouble you.

In so far as this application attacks the adequacy of the Tribunal’s reasons for decision, the evidence was such that the Tribunal found it impossible to rely upon the witnesses.  For that reason, the Tribunal was unable to reach the finding in regard to the relationship between the applicant and Mr Jones that was necessary for the purpose of the regulations in question.  In those circumstances, the question of the criteria to be applied in determining whether there is a genuine and continuing relationship does not truly arise.

The decision of the Full Court is not attended with sufficient doubt to warrant a grant of special leave to appeal.  The application is, therefore, refused.

MR MARTIN:   If the please the Court, I move for orders that the application for leave be refused, and a further order that the applicant pay the respondent’s costs of the application.

TOOHEY J:   Yes, Mr Martin.  Mr Lindsay, what do you say about the question of costs?

MR LINDSAY:   Your Honour, I have nothing to say on costs.

TOOHEY J:   The application is refused with costs.

AT 12.40 PM THE MATTER WAS CONCLUDED