Manevski v Minister for Immigration
[2008] FMCA 1005
•28 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANEVSKI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1005 |
| MIGRATION – Review of Migration Review Tribunal decision – delegate refused to grant the applicant a Sub Class 801 Permanent visa – decision affirmed by the Tribunal but set aside upon judicial review – remitted to the Tribunal for reconsideration and upon reconsideration the Tribunal affirmed the earlier decision to refuse the visa – that decision was also subject to successful judicial review and remitted to the Tribunal for reconsideration – the reconsideration again concluded with the decision to affirm the delegate’s decision. |
| Migration Act1958 Migration Regulations 1994 |
| Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 31 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Power v Comcare (1998) 89 FCR 514 Craig v State of South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 El Mohamad v Minister for Immigration and Citizenship [2007] FMCA 345 Herft v Minister for Immigration and Citizenship [2007] FMCA 756 Ho v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1285 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Jackson v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 203 Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 887 Minister for Immigration and Citizenship v Zaouk (2007) 159 FCR 152 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 NAGV & NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 46 NACP v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 458 Ngaronoa v The Minister for Immigration and Citizenship [2007] FCAFC 196 Nouv v The Minister for Immigration and Multicultural Affairs [2006] FCA 1474 SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 SBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 161 SBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 528 SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121 Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 SDAV v Minister for Immigration and Multicultural and Indigenous Affairs; Minister for Immigration and Multicultural and Indigenous Affairs v SBBK [2003] FCAFC 129 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44 W228 v Minister for immigration and Multicultural Affairs [2001] FCA 860 WAGH V Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269 WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 24 |
| Applicant: | SLOBODAN MANEVSKI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1342 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 7 May 2008 |
| Date of Last Submission: | 7 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 28 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application be dismissed.
That unless application is made by the Applicant within seven (7) days for alternative costs, I order that the Applicant pay the Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1342 of 2007
| SLOBODAN MANEVSKI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By decision made 6 December 2007 the Migration Review Tribunal affirmed a decision made by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs that the Applicant was not entitled to the grant of a General (Residence) (Class AS) visa. In affirming the delegate’s decision the Tribunal found the Applicant was not at any time in a spousal relationship with his sponsor. The Tribunal determined that because of that finding it did not need to make a finding as to whether relevant domestic violence had occurred.
In his amended application filed by leave the Applicant recast his original application for review of the Tribunal’s decision.
The Amended Application contended the decision was made without justification or affected by an error of jurisdiction in that the Tribunal failed to ask itself the correct question or properly construe the terms of the Migration Act and Regulations. In particular it contended that “in applying the time of decision criteria of whether there had been a marital relationship between the visa applicant and the sponsor/nominator pursuant to clause 801.221(6)(b) it failed to apply the correct test and/or applied the wrong standard of proof in that it failed to appreciate in a situation where there has been a prior grant of a visa on the basis of satisfaction that the parties were in a marital relationship a finding that no spousal relationship had been established is the exception and/or not easily arrived at.”
From oral submissions it appeared that the contention, more simply put, was that as an earlier Tribunal had already determined the Applicant and his spouse were married for the purpose of the Act the subsequent Tribunal rehearing the Application would not easily reach a contrary conclusion. It was contended it would only do so if the circumstances were exceptional. It was contended that as the subsequent Tribunal had reached a contrary conclusion in this case it could only have done so by application of an incorrect standard of proof.
Background
The Applicant is a national of the former Yugoslav Republic of Macedonia. He was born there on 20 February 1957. He arrived in Australia on 2 March 1998 as a visitor. His visitor’s visa was extended to 2 March 1999. On 1 March 1999 he applied for a General (Residence) (Class AS) visa. Such a visa cannot normally be granted until two years have elapsed since the lodgement of the application.
He also made application at that time for a temporary visa, being an Extended Eligibility (Temporary) (Class TK) visa (which can be granted immediately) to permit an applicant to stay until a decision is made on the permanent visa.
The form of permanent visa applied for was a Sub Class 801(Spouse) visa. Relevantly the Migration Regulations provide in respect of such a visa that at the time of the decision the following criteria has to be established namely,
“801.22 Criteria to be established at time of decision
801.221(1)…
(2) An applicant meets the requirement subclause if:
(a) the applicant is the holder of a Sub Class 820 Visa; and
(b) the applicant continues to be sponsored for the grant of the Sub Class 820 (Spouse) Visa by
(i) the sponsoring spouse; or
…
(c) the applicant is the spouse of the sponsoring spouse; and
(d) …at least two years have passed since the application was made.
(6)An Applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Sub Class 820 Visa; and
(b) the applicant would meet the requirements of subclause (2)…except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c) either or both the following circumstances apply:
(i) either or both the following:
(A)the applicant:
(B)…
has suffered domestic violence committed by the sponsoring spouse.”
For the purposes of the Migration Regulations the term “spouse” is defined. Regulation 1.15A relevantly defines spouse to mean:
“Spouse
1.15A(1) For the purposes of these Regulations, a person is the spouse of another person if the two persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) …
1(A) Persons are in a married relationship if:
(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) They:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
…”
On 15 December 1999 the delegate refused to grant the Applicant a Sub Class 820 Provisional visa. Upon review that decision was reversed and set aside and upon subsequent consideration by a delegate the Application was allowed and the Applicant granted a Sub Class 820 Temporary Visa.
On 10 May 2002 the delegate refused to grant the Applicant a Sub Class 801 Permanent Visa. That decision was affirmed by the Tribunal but set aside upon judicial review. It was remitted to the Tribunal for reconsideration and upon reconsideration the Tribunal affirmed the earlier decision to refuse the visa. That decision was also subject to successful judicial review and remitted to the Tribunal for reconsideration. The reconsideration again concluded with the decision to affirm the delegate’s decision. That decision is now the subject of this Application.
Legal Principles
It is well established that the misconstruction or misapplication of prescribed visa criteria will result in jurisdictional error.[1] Further failure to consider the claims or a claim of an applicant is jurisdictional.[2] These types of error can be characterised as coming within the category of error identified in Craig v State of South Australia (1995) 184 CLR 163 and are not protected by a privative clause; Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 31. They are the kinds of error the Applicant submitted were present in this instance.
[1] Scargill v MIMIA [2003] FCAFC 116 at [36]-[37] (French, von Doussa and Marshall JJ.); special leave refused (Gummow and Hayne JJ. (13 February 2004); NAGV v MIMIA [2003] FCAFC 144 at [86] per Emmett J. [93]-[94] per Conti J.; SDAV v MIMIA; MIMIA v SBBK [2003] FCAFC 129 SDAV v MIMIA; MMIA v SBBK [2003] FCAFC 129 at [46]-[47] (Hill Branson and Stone JJ.); SBBG v MIMIA [2003] FCAFC 121 at [20] (Gray von Doussa and Selway JJ.); Lobo v MIMIA [2003] FCAFC 168 at [42]-[62] (French, Sackville and Hely JJ.) special leave refused (Gummow and Hayne JJ. (13 February 2004; WAGH v MIMIA [2003] FCAFC 194. (Lee, Hill and Carr); Jackson v MIMIA [2003] FCAFC 203 (Lee, Carr and Moore JJ.)
[2] Dranichnikov v MIMIA: Re Minister for Immigration [2003] HCA 26 (“Dranichnikov”); SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ.0; SCAT v MIMIA [2003] FCAFC 80) (Madgwick Gyles and Conti JJ); NACP v MIMIA [2003] FCA 499 (Hill J.); SBAS v MIMIA [2003] FCA 528 (“SBAS”) (Cooper J.); SDAV v MIMIA; MMIA v SBBK [2003] FCAFC 129 (Hill, Branson and Stone JJ.); SGBB v MIMIA [2003] FCA 709 (Selway J.); M51 of 2002 v MIMIA [2003] FCA 887 (Ryan J.); Applicant WAEE v MIMIA [2003] FCAFC 184 (French, Sackville and Hely JJ.) (all post-Plaintiff S157 judgments); Htun v MIMIA [2001] FCA 1802, (2001) 194 ALR 244 (Spender, Merkel and Allsop JJ.); SBAB v MIMIA [2003] FCAFC 103; W396/01 [2002] FCA 455 (Black CJ., Wilcox and Moore JJ.); (2003) 68 ALD 69; SGKB v MIMIA [2003] FCAFC 44 (Spender Dowsett and Selway JJ.) (all post Yusuf judgments).
Those principles were best summarised by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 where the majority observed from paragraph [51]:
“…in the light of the detailed specification of the criteria for the grant of the various classes of visa, including protection visas, it is impossible to treat the consideration by the Minister’s delegate (and hence the Tribunal) of what are the relevant criteria (the issue in Applicants S134), and the satisfaction thereof, as other than conditions precedent to the making of a valid decision to grant or refuse to grant a visa under s 65. Further, certain observations by Gaudron and Kirby JJ in Applicants S134 (not on an issue upon which the division in the Court turned) are, with respect, compelling. Their Honours said [29] (2003) 211 CLR 441 at 471 [85]:
“The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker’s actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.”
Applicant’s Contention
The Applicant advanced two arguments. First it contended the Tribunal erred in not accepting and acting upon the earlier determination before an earlier Tribunal that there existed a spousal relationship. Secondly it was contended the Tribunal afforded an incorrect standard of proof.
Due to his failure to act on an earlier determination the Applicant conceded in his written outline (at [24]) that it was open to the Tribunal to make a fresh determination on the issue of a spousal relationship. Clearly the Tribunal could do so in the proper exercise of its powers: Ho v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1285, Nouv v Minister for Immigration and Multicultural Affairs [2006] FCA 1474, El Mohamad v Minister for Immigration and Citizenship [2007] FMCA 345.
However, as noted above the Applicant’s contention was that an earlier Tribunal had already determined that the Applicant and his spouse were married for the purposes of the Act. Accordingly it was contended that the subsequent Tribunal, rehearing the Application, would not easily reach a contrary conclusion.
In particular the Applicant relied upon dicta in a decision of Minister for Immigration and Citizenship v Zaouk (2007) 159 FCR 152. It was contended that that decision was authority for the proposition that a finding in circumstances such as the present that there had been no spousal relationship was “exceptional”. It was submitted that such finding would be “an infrequent one and not easily arrived at” (at [17]); that was because the Tribunal’s finding was contrary to the earlier acceptance of a spousal relationship for the purpose of the temporary visa.
In his submission Counsel for the Applicant contended that there was no suggestion anywhere in the Tribunal’s reasons that it should give some evidentiary significance to the prior grant of a temporary visa and/or that it should impose a more stringent standard of proof if it was going to conclude that the parties had never been in a spousal relationship. As a statement of fact based upon the Tribunal’s reasons that proposition is correct.
It was submitted that this fact gave rise to the Tribunal’s error.
The basis of the applicant’s contentions were:
a)The Tribunal, in its assessment of events and in arriving at its conclusion that the parties were not ever in a spousal relationship, ignored the principle submitted to have been enunciated by the Full Court of the Federal Court in Minister for immigration and Citizenship v Zaouk (2007) 157 FCR 152 (Zaouk), namely that where there was a finding of a spousal relationship the purpose of the initial grant of a visa a later finding that there was no genuine marital relationship would be “an infrequent one not easily arrived at”;[3] and
b)Authority directs that a different and higher standard is imposed on a Tribunal in assessing whether there was a spousal relationship where a grant of a temporary/provisional marriage visa has been made and there are no time of application criteria for the substantive permanent visa, as in the Sub Class 801.[4]
Principle in Zaouk
[3] Applicant’s submissions at paragraph [16] and [18].
[4] Applicant’s submissions at [22].
Zaouk was a case which turned largely upon the proper construction of the Migration Regulations as they applied to that Respondent’s Application for a Spouse visa.
In making its submissions the Applicants here relied particularly upon the Court’s remarks at paragraph 17 that,
“…the factual findings made which led to the Tribunal’s conclusion that no spousal relationship had been established between the parties were in turn exceptional. In saying this we are not impugning the conclusion. Rather we are suggesting that it is likely to be an infrequent one not easily arrived at.”
However those remarks should be seen in context. First, the remarks are obiter.[5] Secondly and more significantly the factual context in which the observation was made requires consideration.
[5] The issue for resolution on Appeal was identified by the Court at page 153 paragraph (1) as:
·What was the proper construction of one of the criteria required to be satisfied at the time of application; and
·Construction of the requirement of a statutory declaration under Regulation 1.26.
That remark was addressed to neither issue but rather one made in passing and reflecting upon the facts of the case before the Court.
The Application in question was for a subclause 820 (Spouse) visa. (Some of the clauses in subclause 820 are similarly expressed in subclause 821. Each interrelates with the definition of “spouse” provided for in Regulation 1.15(A)).
The Respondent in Zaouk’s case entered into Australia on 12 April 2002. At about that time he was granted a Prospective Marriage (Temporary) (Class TO) visa. He was sponsored by his prospective spouse. He married his spouse on 25 October 2002 but separated on
30 November 2002. He applied for his Sub Class 820 (Spouse) visa on 2 January 2003.
The issue agitated before the Tribunal giving rise to review was its consideration of the word “relationship” in Sub Class 820.211 (A)(c). The Tribunal considered it should have the same meaning as in the Regulation 1.15A definition of a “married relationship”. The Tribunal was not satisfied the parties had been in a spousal relationship in the period between the marriage and separation as it was not satisfied the parties had a mutual commitment to a shared life to the exclusion of all others as required by Regulation 1.15A(1A)(b).
Having reviewed subclause 820 subparagraph (c) and Regulation 1.15A the Court stated:
“…It is in our view tolerably clear that the relationship it contemplates as having existed but then ceased is a Regulation 1.15A married relationship.”[6]
The Court continued,
“That relationship clearly enough provides an essential foundation for the criteria for this subclass of visa. Ordinarily that relationship is required to exist at the time of the application for this visa… Then there is the exceptional case where that relationship has ceased…that exception is tied to the domestic violence requirement.”
[6] Zaouk at 15.
Having made those observations the Court continued at paragraphs 16 and 17 to state,
“It is evident from the provisions of Subclass 820 that the underlying policy (evident in the title of the subclass itself) is to tie the award of this visa to persons who are, or, exceptionally, who have been, in spousal relationships having the qualities identified in reg 1.15.
While this conclusion may appear to bear hardly upon a person in the situation of the present respondent, the factual findings made which led to the Tribunal’s conclusion that no spousal relationship had been established between the parties were in turn exceptional. In saying this we are not impugning the conclusion. Rather we are suggesting that it is likely to be an infrequent one not easily arrived at.”
The Respondent contends the Full Court was not, as the Applicant contends, suggesting in this dicta that some higher or more stringent standard of proof was required as a matter of law in situations where an applicant had been assessed as being in a spousal relationship at an earlier time. As the Court makes clear, it uses the word ‘exceptional’ to differentiate a claim based on subclause (8), from the nine other different possible bases on which an application can be made for this class of visa, which themselves contemplate the continuing existence of a spousal relationship (see Zaouk at [11]-[14]). The Court states at [15]:
“Then there is the exceptional case where that relationship has ceased but where nonetheless application for this visa can be made. This is subclause (8). That exception is tied to the domestic violence requirement”.
At [17], the Court is stating only that, in that particular case, the findings which led to the Tribunal concluding that there was no spousal relationship, were exceptional. It added that such situations would not be frequent and not easily arrived at.
As the Court noted at paragraph [17] its remarks did not bear upon the Respondent to the appeal before it. However its subsequent remarks, which were relied upon by the Applicant, were passed in the context of a discussion of the peculiar factual findings supporting the conclusion contained in the decision under review. That conclusion was clearly the subject of the Court’s observation that it was “exceptional”. Likewise the remarks “…that it is likely to be an infrequent one not easily arrived at” was a reference to the decision under review.
Undoubtedly as a matter of observation these remarks were correct. Nothing that the Court said suggests or entails the application of some higher or different standard generally as a matter of law. The Applicant is seeking to read into the passage something which is patently not there. I do not consider they constitute any guiding principle nor bind me in my approach to a review of the Tribunal’s decision on this point. I agree with the Respondent’s submissions that the Applicant seeks to read into the Courts statement more than was there.
It follows in my view that the applicant’s submission at [18] of his submissions that the Tribunal “ignored the principle enunciated by the Full Court (in Zaouk)” is misconceived.
It was further submitted that I should in any event be guided by the observations of FM Smith in Herft v Minister for Immigration and Citizenship [2007] FMCA 756. I do not regard my view as inconsistent with the views of FM Smith in Herft (supra). It is clear from His Honour’s remarks and the facts before him that he too did not regard the Court’s remarks in Zaouk as binding. His Honour’s remarks at [10] and [11] do no more than highlight the fact that each case will depend upon its individual merits the assessment of which will largely vary from case to case. I too agree that, in areas of administration, decision makers addressing factual issues are entitled to rely upon findings in earlier decisions and will do so in the absence of some special reason for reconsidering the earlier finding (Power v Comcare (1998) 89 FCR 514 at 526 and Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390). However as is apparent in this instance the Tribunal did not rely upon earlier findings but proceeded to review these issues afresh.[7] It was open to it to do so.
[7] See courtbook pages 20 to 26 constituting the Tribunal’s summary of evidence taken on these matters.
It follows the Applicant’s submissions that the previous administrative decision in relation to a temporary visa provide prima facie proof of the alleged fact to a subsequent decision maker does not strictly follow.
In fact for reasons identified in the preceding paragraph they do not follow in this case at all. My views on that matter are fortified by the decision of Heerey J in Nouv v The Minister for Immigration [2006] FCA 1474. At [12] His Honour stated,
“[12] The appellant’s argument involved two interrelated points. One of the requirements for the permanent visa is that the applicant is the holder of a provisional visa. Therefore, it was said, although the Tribunal had to consider other criteria as at the time of its decision, it should not have “re-agitated” the issue whether at the time of the grant of the provisional visa the criteria for the grant of that visa were or were not satisfied. In effect, the Tribunal should have proceeded on the basis that when the provisional visa was granted the appellant was a “spouse” of the sponsoring spouse, that is to say they were in a “married relationship” as defined in reg 1.15A. The Tribunal failed to identify the point in time at which the married relationship had to exist.
[13] It seemed implicit in counsel’s argument that the grant of the provisional visa created some kind of presumption and that the Tribunal could only refuse the permanent visa if it was satisfied that what was a genuine married relationship had ceased by the time of the death of the sponsoring spouse.
[14] As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28], the Tribunal may have, and often will have, different and additional evidence bearing on the parties’ relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence.”
Indeed as submitted by the respondents the grant of the provisional visa was not a relevant consideration in an administrative law sense: Ho (supra) at [29]-[31].
It was open for the Tribunal to make a finding as to whether or not the Applicant was a spouse for the purpose of the visa Application.
It decided that matter against the Applicant as it was entitled to do. On so finding it was unnecessary to go on and consider claims in respect of domestic violence: MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 per Finkelstein J.
Standard of Proof
The applicant also contended a higher and different standard was imposed on the Tribunal in assessing whether there was a spousal relationship in circumstances where there had been the grant of a temporary/provisional marriage visa.
The premise underlying this submission was that a decision maker should be guided by earlier decisions. Accordingly those decisions should not be disturbed without satisfying a “more stringent standard of proof” if it proposed to reach a contrary conclusion.
For reasons expressed above I do not consider a decision maker is bound by earlier decisions. It is open to a decision maker to review earlier decisions.
However where a decision maker does so it does so in accordance with general principles. The principles are well established and were clearly recently restated in Ngaronoa v The Minister for Immigration and Citizenship [2007] FCAFC 196 where Buchanan and Bennett JJ with whom Moore J concurred stated at [12],
“…it was argued before the primary Judge that the Minister should not have applied a ‘standard of proof’ by reference to ‘the balance of probabilities’ but should have applied the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw)). Such an argument seems to postulate some third standard of proof between the criminal standard and the civil standard. The proposition has been decisively rejected (Briginshaw at 362-3; Rejfek v McElroy (1965) 112 CLR 517 at 521-2; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1). In any event, the proposition is misplaced. We agree with the primary Judge that it was a matter for the Minister what weight to attach to particular matters and how to evaluate them for the purpose of the exercise of his discretion. Provided the Minister does not act arbitrarily or capriciously, or outside the limits of jurisdiction established by the Act, the exercise of his discretion is not subject to judicial review.”
To similar effect are remarks made by Kenny J in Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 at [35].
Further neither the Act nor the regulations prescribe any particular standard of proof in the context of a non-adversarial administrative decision making process: W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860 at [47].
In my view it is clear that no “more stringent standard of proof” applies.
Conclusion
The Applicant contends the Tribunal erred by failing to give appropriate weight to a conclusion reached by an earlier Tribunal when rehearing the Application. It contended the later Tribunal could only have reached a differing conclusion;
a)if exceptional circumstances invited a differing conclusion: none were evident in the Application; and/or
b)by application of an incorrect standard of proof.
The authorities do not support either contention. The conclusion of the Tribunal was open to it and one properly reached.
Order
That the Application be dismissed.
That unless application is made by the Applicant within seven (7) days for alternative orders, I order that the Applicant pay the Respondent’s costs fixed in the sum of $5,000.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 28 July 2008
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