Massey v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1045
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Massey v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1045
File number: SYG 5 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 18 October 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – partner (temporary) (class UK) visa – where the applicant’s spouse withdrew sponsorship of his application due to domestic violence – Tribunal consideration of whether the applicant met the exceptions contained in clause 820.221(2) or (3) of the Migration Regulations 1994 (Cth) in those circumstances – where the applicant alleges to have met the the exception contained in clause 820.221(3) by application of the presumption of parentage in section 69P(1) of the Family Law Act 1975 (Cth) – finding that the Tribunal did not err in its application of the presumption as it related to the exceptions – no jurisdictional error established – application dismissed with costs. Legislation: Family Law Act 1975 (Cth), ss 69P(1) and 69Q
Migration Regulations 1994 (Cth), cls 820.211, 820.211(3), 820.221(2)-(3)
Cases cited: Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498
Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 2 October 2024 Date of hearing: 2 October 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 5 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP MASSEY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 3 January 2019 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
This is an application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 December 2018 which affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant a Partner (temporary) (class UK) visa (‘partner visa’) to the applicant.
BACKGROUND
The applicant applied for a partner visa on 20 April 2017.[1] The applicant and his sponsor had married on 11 March 2017.[2]
[1] Court book at pages 1 and following.
[2] Court book at page 13.
Shortly thereafter, the sponsor became pregnant.[3]
[3] Court book at page 15.
On or about 12 May 2017, the applicant and the sponsor separated. The applicant’s sponsor says that this followed a family violence incident.[4]
[4] Court book at pages 122 to 123.
On or about 18 May 2017, the applicant’s wife withdrew her sponsorship and advised the Department of Immigration and Border Protection (‘Department’) that she had been subjected to family violence at the hands of the applicant.[5] Also at about this time, the sponsor reported the family violence to police who sought and obtained an Interim Intervention Order against the applicant for the protection of the sponsor.[6]
[5] Court book at pages 117 and following.
[6] Court book at pages 134 to 139.
On 31 May 2017, the Department wrote to the applicant inviting him to comment on information received that suggested that his relationship with the sponsor had ceased.[7] In that letter, the Department said:
Information provided to the Department indicates that spousal or de facto relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your Subclass 820 visa application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
[7] See Court book at pages 143 to 145.
The applicant was asked to provide any response and relevant documentation within 28 days.
On 28 July 2017, a Final Intervention Order (‘IVO’) was made against the applicant for the protection of the sponsor.[8] The notations to that order reflect that that the applicant was present at court when the order was made and consented to the order without admissions.[9] The IVO was varied slightly at the sponsor’s request on 18 August 2017.[10] The IVO was operative until 28 July 2018 unless extended or varied prior to that date.[11]
[8] See Court book at pages 208 to 214.
[9] Court book at page 210.
[10] Tribunal decision record dated 3 December 2018 at paragraph [20].
[11] Court book at page 208.
On 21 September 2017, a delegate of the Minister made a decision refusing the applicant a partner visa.[12]
[12] See Court book at pages 215 to 241.
The delegate noted that as at the date of their decision, the applicant had not yet replied to the letter sent to him on 31 May 2017 containing information about the criteria that must be met to obtain a visa and seeking confirmation as to whether he wished to proceed with his application, notwithstanding the breakdown of his relationship.[13] The applicant was also, in that correspondence, given the opportunity to withdraw his application.
[13] Court book at page 219.
In the delegate’s decision, the delegate also noted that as the applicant was no longer the spouse of his sponsor, he did not meet regulation 820.211(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The delegate then went on to say:[14]
In situations where the relationship has ceased and/or sponsorship has been withdrawn, legislation also provides for the grant of a permanent visa in certain limited circumstances. Those circumstances are
•the death of the sponsor (subclause 820.221(2)), or
•where it is assessed that the applicant and/or a dependent child of the sponsoring partner or of the applicant or of both of them has suffered family violence committed by the sponsoring partner; (subclause 820.221(3)(b)(i)), and/or
•the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (subclause 820.221(3)(b)(ii).
[14] Court book at page 219.
The delegate then concluded that the applicant met none of these criteria and therefore did not meet the criteria for the visa.[15]
[15] Court book at page 220.
Relevantly, the delegate found that there was no evidence before them of:
•family violence; or
•that there was a child of the parties – i.e. there was no evidence before the delegate of a birth certificate or that the requirements of subclause 820.221(3)(b)(ii) were met.[16]
[16] Court book at page 219.
Application for review at Tribunal on 6 October 2017
On 6 October 2017, the applicant filed a review application with the Tribunal and subsequently appointed a migration agent.[17]
[17] Court book at pages 242 and following.
On 19 April 2018, the Tribunal wrote to the applicant and provided him with an opportunity to respond to information which the Tribunal considered could be a reason to affirm the decision under review.[18]
[18] Court book at pages 251 to 253.
Relevantly, the Tribunal advised that information on the Department’s file indicated that the applicant’s relationship with his sponsor had ended and that the sponsor had withdrawn her sponsorship. Relevantly, in that letter, the Tribunal went on to say:
… If the Tribunal is not satisfied that you are the spouse or de facto partner of the sponsor, and if you do not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that you do not meet the requirements for the grant of the visa for which you have applied. The Tribunal may then affirm the decision under review.
The applicant was invited to provide comments or respond to this information in writing. In addition, in that letter, the Tribunal also went on to say:
If you are no longer in a relationship with your sponsoring partner, there are exceptions under which you can be granted the Partner visa. These include:
•The death of the sponsoring partner
•Family violence
•Certain court orders or responsibilities in relation to children.
The Tribunal invites you to provide information that you believe may be relevant to these exceptions.
The applicant was asked to provide this information or any response by 3 May 2018. The Tribunal’s letter also set out the consequences of the applicant not responding in the following terms.
If we do not receive either your comments or response or the information within the period allowed or as extended, we may make a decision on the review without taking any further action or obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
The applicant sought an extension of time within which to respond by email dated 2 May 2018.[19] In that email, the applicant said that he had been a victim of family violence/emotional abuse and also that he has parenting responsibilities with respect to his ‘Australian child’. The applicant also indicated that he had sought DNA testing to prove that the child of his relationship with the sponsor was in fact his but had not yet done so.
[19] Court book a page 254.
By letter dated 3 May 2018, the Tribunal advised the applicant that his request for an extension of time was agreed to and that he now had until 17 May 2018 to provide a response.[20] The same statement about the consequences of a failure to provide a response was included in the 3 May letter.
[20] See Court book at pages 270 to 271.
On 4 May 2018, the applicant sent a further email to the Tribunal in the following terms:
Hi Sir/Madam
It’s a request if you guys send me a letter-stating you need -DNA test/Parental test for immigration purpose and I can send it to my wife in Melbourne to get DNA test done as I’m in Sydney.
Thanking you …
On 10 May 2018, the Tribunal responded in the following terms:
Thank you for email of 4 May 2018.
The Presiding Member advises that at this stage the Tribunal is not requesting DNA evidence.
We have received your response and also provide an extension of time until 17 May 2018 for any further comment or information you wish to provide.
The Tribunal will be in contact at a later date with details regarding a Tribunal hearing.
On 16 May 2018, the applicant provided a further email attaching certain information.[21]
[21] See Court book at pages 274 and following.
On 5 June 2018, the applicant provided a further email in which he explained why he has not been able to see his child since they were born and why he does not know the child’s name.[22]
[22] See Court book at page 292.
By letter dated 6 November 2018, the applicant was invited to a hearing before the Tribunal which was scheduled to take place on 23 November 2018.[23]
[23] See Court book at pages 295 to 301.
On 14 November 2018, the applicant wrote to the Tribunal advising that:
I have filed parental order in Federal Court of Australia for my child so that I could share parental responsibilities where I (Sandeep Massey) is the Applicant and my wife (Yogaluxmi Gounden) is the respondent.
The annexure to this email suggests that the applicant filed his application on 13 November 2018.
The applicant attended the Tribunal hearing on 23 November 2018. His representative also appeared (by telephone).[24]
[24] See Court book at page 311.
On 4 December 2018, the Tribunal handed down its decision in this matter.
TRIBUNAL DECISION
In its decision, the Tribunal identified the issue before it, namely to determine whether, at the time of decision, the applicant continued to be sponsored by the sponsoring party or whether one of the exceptions applied.[25]
[25] Tribunal decision record dated 3 December 2018 at paragraph [7].
The Tribunal noted that the applicant confirmed that he was no longer in a relationship with the sponsor.[26]
[26] Tribunal decision record dated 3 December 2018 at paragraph [8].
In those circumstances, the Tribunal turned to consider whether one of the exceptions applied.
The Tribunal noted that the sponsor was not deceased.[27]
[27] Tribunal decision record dated 3 December 2018 at paragraph [10].
The Tribunal further noted that the applicant had advised that there was one child of the relationship.[28]
[28] Tribunal decision record dated 3 December 2018 at paragraph [11].
In relation to family violence, the Tribunal inquired of the applicant as to whether he claimed to have had any family violence perpetrated against him by the sponsor. The Tribunal noted the applicant’s response and relevantly that he felt he had been subjected to emotional abuse by the sponsor in her denial of access to the child.[29]
[29] Tribunal decision record dated 3 December 2018 at paragraph [12].
The Tribunal summarised the applicant’s evidence in relation to the exceptions contained in sub clauses (2) and (3) of clause 820.221 of the Regulations.[30] It noted that he the applicant had provided a statutory declaration to the Department of Human Services stating that he was the parent of the subject child. The applicant gave further evidence that as he was not able to provide the child’s name to the Department of Human Services it was not able to proceed with his claim. The Tribunal noted this evidence but went on to say that ‘given the evidence before it, [it was] not convinced that this application was not made for the purposes of strengthening the applicant’s review rather than to establish a formal financial child support relationship.’
[30] See Tribunal decision record dated 3 December 2018 at paragraphs [8] to [12].
The Tribunal noted that the applicant had commenced parenting proceedings in the Federal Circuit Court. [31] It also noted the orders sought by the applicant in those proceedings and that the matter had been listed in the Duty List on 29 January 2019.
[31] Tribunal decision record dated 3 December 2018 at paragraph [22].
Relevantly, at paragraph [24], the Tribunal said:
24.The Tribunal asked the applicant as to any evidence he wished to submit that he was the biological parent of the sponsor’s child. The applicant did not have any corroborative evidence to submit as to being the biological parent. The Tribunal notes that the applicant on 2 May 2018 wrote to the Tribunal requesting it send correspondence to him stating that the Tribunal needed DNA testing for immigration purposes and he would then pass on this direction to the sponsor. The Tribunal declined to make such a direction in its response. In his oral evidence to the Tribunal he said he had been advised that at that stage the Tribunal was not requesting DNA evidence. He said that he had been advised by the Tribunal that once the Tribunal required the DNA evidence it would let him know. The Tribunal rejects this claim. The intimation of the applicant appears to be that he would have been able to provide the Tribunal with DNA evidence if it had subsequently made a formal request to him to provide such evidence. The Tribunal notes that it responded to the applicant’s request it make a formal written request for DNA evidence on 10 May 2018 stating that it was not requesting DNA evidence at this stage (T1, Folio.60). The Tribunal made no further commentary to the applicant on the matter since that time and no further request was made by the applicant to the Tribunal that it makes any further request for DNA evidence. The Tribunal notes that submission of DNA evidence pertaining to the paternity of the sponsor’s child is a matter for the applicant. It is not the role of the Tribunal to manage the advocacy and the acquisition of evidence of an applicant with representation. The Tribunal notes that in the applicant’s proceedings in the Federal Circuit Court he initiated less than a fortnight ago (which he supplied to the Tribunal) he did not seek orders relating to DNA testing. The Tribunal nevertheless notes that the exception relating to children is not solely based upon the single issue of proof of paternity. As the applicant’s representative stated in his own oral submissions to the hearing, the child does not necessarily need to be the biological child of the applicant in claiming the exception pertaining to children.
The Tribunal then explored with the applicant whether he had ‘custody, joint custody or access’ to the sponsor’s child.
At paragraph [28] the Tribunal noted and adversely commented upon the fact that the applicant had only filed proceedings in the Federal Circuit Court seeking parenting orders in the days leading up to the Tribunal hearing notwithstanding that he and the sponsor had ceased living together over a year and a half earlier. The Tribunal ‘questioned the applicant in relation to this delay. The applicant in oral evidence said it was because he had attempted mediation in February and March and then waited for the Intervention order to expire in July’.
The Tribunal went on to note that it was ‘perplexed as to the extent of this delay given the poor state of the relationship between the applicant and sponsor and his claims concerning the sponsor’s child. The Tribunal notes that the child is now almost one year of age’.
The Tribunal then concluded that ‘on the evidence before it is not satisfied the applicant is the father of the sponsor’s child’.
Having made this finding, the Tribunal then went on to consider whether the applicant nonetheless met the exception in relation to children by having in place orders which provided for custody/access arrangements in respect of the child. In this context, the Tribunal noted again that the applicant had only very recently initiated proceedings in the Federal Circuit court seeking parenting orders. In this context, the Tribunal said:
29.… The Tribunal notes the applicant’s application in the Federal Circuit Court seeking access or shared responsibility in the days leading up to the Tribunal’s hearing and as discussed in paragraph 28 considers the applicant has had adequate time to make such an application previously. The Tribunal is not prepared to now delay making a decision on the applicant’s claim to the exception pertaining to children as a result of this application lodged in the days prior to the Tribunal’s hearing.
Ultimately, the Tribunal concluded at paragraph [31] that the applicant did not meet the alternative criteria in relation to children at clause 820.221(3)(b)(ii).
In considering whether the applicant satisfied the ‘family violence’ criterion, the Tribunal at paragraph [33] noted that Division 1.5 of the Regulations contains the substantive provisions relating to family violence and the evidentiary requirements for such a claim. The Tribunal explained to the applicant the type of evidence that he had to submit to support a claim of family violence and asked him whether he had any such evidence that he wished to submit to the Tribunal.
In circumstances where the applicant was provided with over seven months prior to the hearing to provide any such evidence and had not done so, the Tribunal found at [40] that the applicant had not made a formal claim of family violence which the Tribunal could properly consider. As such, the Tribunal found that the applicant did not meet the alternative criteria in clause 820.221(3).
As such the Tribunal set out its dispositive findings at paragraphs [41] to [44] and at paragraph [45] found that the applicant did not satisfy the criteria for the grant of the visa.
At paragraph [46] the Tribunal said:
46.The applicant’s representative requested further time to provide evidence to the Tribunal prior to it making a decision. The applicant’s representative said the applicant had not told him that he had seen a psychologist and had gone through a hard time and therefore asked for time to submit further evidence. He did not specify what the evidence was. He asked the Tribunal to allow the applicant to continue to provide evidence until after the applicant’s List Hearing at the Federal Circuit Court at the end of January 2019. The Tribunal considered his request but declined to do so. The Tribunal pointed out that it had written to the applicant over seven months ago requesting any information the applicant wished to submit in relation to the exceptions. The Tribunal provided the applicant an extension for providing evidence when he requested it in May 2018. The Tribunal has continued to consider any evidence the applicant wished to provide in support of his claim since that time and, the Tribunal said at the hearing, it would consider any further evidence up submitted until the time of decision.
For each of these reasons, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa.
PROCEEDINGS IN THIS COURT
The applicant filed an application for judicial review on 3 January 2019. That application was supported by an affidavit also filed that day. The applicant then filed affidavits on 6 September 2019, 21 December 2021 and 16 March 2022 respectively. The Minister objected to the material filed by the applicant to the extent that it contained information not before the Tribunal on the basis that the Tribunal’s decision was to be assessed on the basis of information before it at the time of decision. I upheld the Minister’s objection and therefore excluded any material filed by the applicant which sought to adduce evidence not before the Tribunal.
On 20 March 2024, orders were made permitting the applicant to file and serve any amended application with proper particulars of the grounds of review, any written submission and any further evidence upon which the applicant sought to rely.[32]
[32] Orders of Registrar Cummings dated 20 March 2024.
The applicant filed a further two affidavits, one on 24 July 2024 and one on 1 August 2024. They appear to be identical in their terms. The Minister objected to Annexure D to each of these affidavits on the basis that it too contained information not before the Tribunal. As to the remaining Annexures, whilst no formal objection was taken, the Minister did submit that the material annexed by the applicant was already in the court book.
For similar reasons given above, I upheld the Minister’s objection to Annexure D and excluded that annexure from the evidence before the court.
At the start of the hearing, I confirmed with the applicant that he had not filed any amended application. I also confirmed that he had received the Minister’s submission and the court book. I explained to the applicant the role of the court on a judicial review application and simply put that the court’s role is to determine whether the Tribunal’s decision was affected by jurisdictional error, namely whether the Tribunal had made a mistake in the way in which it understood or applied the relevant law or in the way in which it conducted its assessment of his visa application. I also explained that it was not the role of the court to consider the merits of his visa application and in particular that the court does not have the power to grant a visa.
When invited to make submissions, the applicant understood that the Tribunal made its decision on the basis of the information available to it at the time. The applicant seemed to concede that if one considered the Tribunal’s reasons by reference only to the information available at the time that “…there is nothing to be debated” about the Tribunal’s decision.
However, the applicant maintained that the Tribunal decision was made in December 2018, almost six years ago. Since that decision was made, the applicant said that the parenting application he filed had progressed and that orders had been made for him to spend time with the child and that these orders have now been in place for some time. The applicant said that this is a not a static case and that effectively the court should consider what has happened since the Tribunal decision which should be taken into account in determining whether the applicant meets the criteria for a partner visa.
Whilst I have sympathy for the applicant and understand why as a lay person, he may feel that the court should have regard to the facts as they actually transpired rather than the facts as found by the Tribunal at a particular point in time, that is not within the remit of this court on this application. To do so would involve the court in straying into impermissible merits review.
I now turn to consider the grounds of review raised by the applicant in his application.
The applicant raises one ground in the following terms:[33]
I should be granted visa to stay as I am the father of Lemuel Gounden (date of birth - 3.12.17 and I am still married but separated to Yogaluxmi Gounden who is the mother of my son. Family Law Act 1975 subdivision sub clause 69 (presumption of parentage) (please see attached leaflet). I met my son on 24th December 2018. Pictures attached.
[33] Application filed 3 January 2019.
CONSIDERATION
The applicant’s visa application required him to meet the criteria in clause 820.221(3) of the Regulations:
3. An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both the following circumstances applies
…
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least one child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975 or any other formal maintenance obligations.
Section 69P(1) of the Family Law Act 1975 (Cth) (‘the Family Law Act’), to which the applicant refers relevantly provides for a presumption of parentage in the following terms:
(1)If a child is born to a woman while she is married, the child is presumed to be a child of the woman and the husband.
As I understand the applicant’s submission, he argues that it was open to the Tribunal to accept that he was the child’s father by applying the presumption in section 69P and therefore the Tribunal erred in finding that he was in fact not the child’s father.
The Minister submits that this ground ought be rejected on the basis that a similar argument was raised and rejected by Justice Logan in Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 (‘Ortiz’). In Ortiz, the issue before the Tribunal was whether the applicant satisfied the same criteria the subject of this application, namely clause 820.221(3)(b)(ii) of Schedule 2 of the Regulations.
By reference to the reasoning in Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228 and the cases referred to in that decision, for the purposes of the migration criteria, a person has ‘custody’ of a child if they have parental responsibility. By operation of law, section 61C of the Family Law Act, those cases accepted that it is an incidence of being a child’s parent that one has parental responsibility and therefore by reference to the migration criteria, will be taken to have ‘custody’ of a child. So in Ortiz, Logan J said at [3]:
3.… Thus, so far as his visa application is concerned, if the Minister or, sitting in his place, the Migration Review Tribunal (the Tribunal) were satisfied that Mr Ortiz was the father of the relevant child … he would fall within the exception mentioned above.
In Ortiz the applicant relied on section 69Q, rather than section 69P. The effect of section 69Q is similar to section 69P although the presumption in section 69Q arises where a child is born to a woman who was, during the relevant time period, cohabiting with a man. In Ortiz the issue of the statutory presumption was dealt with in the following way:
12.In the court below, Mr Ortiz principally argued that the Tribunal had failed to take a relevant consideration into account namely, the presumption of paternity for which s 69Q of the Family Law Act provides where there has been prior cohabitation as between the man and the mother of the child over a period prior to the child’s birth specified in that section. In this case, there was evidence that Mr Ortiz and Ms Andrews had cohabited over this period. Most of the reasons for judgement below are directed to the resolution of this issue.
13.The learned federal magistrate concluded that the statutory presumption was not relevant to the administrative review proceeding conducted by the Tribunal. In doing so, his Honour referred to the inapplicability of the rules of evidence (of which the statutory presumption was one) and to the absence of any formal onus of proof in such proceedings. His Honour applied by analogy a statement made by RD Nicholson J with respect to the Refugee Review Tribunal in Minister for Immigration and Multicultural Affairs v A … which was that “the existence of any presumption would be inconsistent with the function of the Tribunal to act in an inquisitorial fashion”. Though the decision in that case was overturned on later appeal to the Full Court … the correctness of the statement was, as the learned federal magistrate accurately recorded accepted by the Full Court. In that Court, French Merkel and Finklestein JJ stated at (at [41]) that:
“41.The fact finding and evaluation to be undertaken by decision-makers in relation to applications for protection visas and by the Refugee Review Tribunal on review of their decisions is administrative in character. In consequence it is not appropriate for those decision-makers to draw too closely upon the rules of evidence applied in civil-proceedings: see Minister for Immigration and Ethnic Affairs v Liang … where the High Court drew attention to the confusion likely to occur if the Refugee Review Tribunal was to decide questions of fact by adopting the civil standard of proof. It is equally inappropriate for the Tribunal to apply curial devices such as presumptions of law or fact … such a presumption, that is a presumption without a basic fact, is a rule of law relating to the existence of a burden of proof and such a rule has no part to play in administrative proceedings which are inquisitorial in their nature.”
14.Though the statements in A v Minister for Immigration and Multicultural Affairs concerned the Refugee Review Tribunal, the analogy which the learned federal magistrate drew with respect to the Tribunal was, with respect, a sound one. There is no material distinction to be drawn between the administrative review function consigned by the Act to that Tribunal and the administrative review function consigned by that same Act to the Refugee Review Tribunal. In each the rules of evidence are not applicable. The ground of the judicial review application which alleged error on the part of the Tribunal in failing to apply in Mr Ortiz’s favour, so far as paternity is concerned, the presumption arising from s 69Q of the Family Law Act was correctly dismissed.
15.The ground based on a presumption of paternity by reason of s 69Q of the Family Law Act was not resurrected on appeal. As will be seen, that is not to say that, s 69Q of the Family Law Act was completely irrelevant to the review proceeding.
Applying this reasoning to the present case, therefore, any suggestion that the Tribunal erred in this case by failing to apply the presumption of parentage under section 69P is not to be accepted.
The applicant’s ground of review therefore is not made out.
As a model litigant however, the Minister in his written and oral submissions addressed the court on another possible argument which the applicant might have raised on the face of the Tribunal’s reasons.
The Minister considered whether the Tribunal’s reference to joint custody or access pursuant to a court order at paragraph [27] and again at [31], reveals jurisdictional error. The court conceded that the weight of authority does not require that custody or joint custody can only arise under a court order.[34] To the extent that the comments by the Tribunal at paragraphs [27] and [31] could be read as suggesting that custody or joint custody could only arise pursuant to a court order, this would not be consistent with that authority.
[34] See Minister’s Outline of Submissions filed on 31 July 2024, paragraph [14].
However, it was submitted for the Minister that even if this is a proper characterisation of the Tribunal’s reasons, this does not evidence jurisdictional error because in this case, the Tribunal did not accept that the applicant was the child’s father. I agree with this submission. Had the Tribunal concluded that the applicant was the child’s father, that would have led to the conclusion that the applicant satisfied the visa criterion because being the biological father of a child is sufficient to satisfy the visa criterion. However, at [28], the Tribunal found that the applicant was not the child’s father. As such, and absent any family court orders at the time of decision, the Tribunal’s finding was not subject to jurisdictional error.
Moreover, a fair reading of the Tribunal’s reasons suggest that the Tribunal was, notwithstanding the comment at paragraphs [27] and [31], alert to the fact that custody or access could arise in more than one way, for example if the applicant were the child’s biological parent.
For each of these reasons, I agree that no jurisdictional error arises in this regard.
The Minister also addressed me in oral submissions in response to my query as to whether the failure to grant an adjournment could be said to give rise to a jurisdictional error. The Minister submitted that in circumstances where the applicant made a request for an adjournment to allow him to provide more evidence, the Tribunal considered that request, refused it and gave cogent and probative reasons for doing so. The Tribunal’s reasons do not otherwise disclose any jurisdictional error.
It was reasonably open to the Tribunal in circumstances where the applicant had been put on notice of the issues that he needed to address to satisfy the visa criterion some seven months prior to the Tribunal hearing, and the father failed to initiate proceedings in the Federal Circuit Court until a matter of days before the Tribunal hearing, that it ought not grant the adjournment. Whether a different decision maker may have exercised the discretion to grant an adjournment differently is not to the point.
CONCLUSION
For each of these reasons, no jurisdictional error arises.
The applicant’s application for judicial review is dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 18 October 2024
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