Ortiz v Minister for Immigration
[2011] FMCA 432
•9 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ORTIZ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 432 |
| MIGRATION – Review of Migration Review Tribunal decision – presumption of paternity arising under section 69Q of the Family Law Act 1975 (Cth) – Tribunal not governed by strict rules of evidence – no jurisdictional error. |
| Family Law Act 1975 (Cth), ss.69Q, 69V, 69W Migration Act1958 (Cth), ss.65, 65(1)(a)(i) to (iv), 353(2)(a), 427(1)(d) Migration Regulations 1994 (Cth) |
| A & Ors v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v A (1998) 156 ALR 489 Yazbeck v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 458; [2002] FCA 980 |
| Applicant: | SANTIAGO ORTIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1194 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 9 May 2011 |
| Date of Last Submission: | 9 May 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 9 June 2011 |
REPRESENTATION
| The applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms Kidson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
Subject to any application for other orders being made within seven (7) days of this date, the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 1194 of 2010
| SANTIAGO ORTIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 25 October 2010 the Migration Review Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Partner (Temporary) (Class UK) Visa because the Tribunal was not satisfied that the applicant met the requirements of cl.820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The applicant seeks review of that decision.
Background
The applicant is a citizen of Spain. On 21 November 2006 he lodged an application for a Class UK (Partner – Temporary) Sub Class 820 visa. The sponsoring spouse for the application was Heidi Christine Andrews, an Australian citizen. In order to lodge his application he successfully obtained a waiver from the Department of a condition on his visitor’s visa which prevented him from making any further visa applications in Australia on the basis that the sponsoring spouse was pregnant (due 3 January 2007) and that her pregnancy was high risk.
On 12 February 2007 the Department advised the applicant in writing that it had received information that he was no longer living with the sponsoring spouse and that the relationship had ended. It informed him of the circumstances in which a permanent visa could still be granted and invited him to submit appropriate evidence if one of those circumstances applied. In particular, one of the circumstances identified to him was that he and his nominating spouse have certain shared rights and obligations in respect of the child.
In the meantime on 23 September 2008 the applicant informed the Department that he had taken up with a new spouse, Lisa Jane de Boer and on 18 November 2008 provided evidence to the Department of a certified copy of a birth certificate for Aurora de Boer Ortiz born
22 July 2008 which certificate named him as the father.
In a conversation had between he and an officer of the Department on 16 February 2009 he advised that his relationship with Ms de Boer had broken down. He also advised he did not know if he was the father of the sponsor’s child. From that note the applicant’s dilemma was apparent. The woman with whom he had had a relationship and fathered a child was by then estranged from him and one can infer not likely to sponsor a visa application on his behalf and the woman who was his original sponsor had bore a child in respect of whom there was uncertainty concerning the applicant’s parentage.
On 17 February 2009 the Department informed the applicant in writing that since Aurora de Boer was not a child of the relationship between he and the sponsoring spouse (Ms Andrews) that child’s birth certificate was not relevant to the application. It requested he provide a copy of a birth certificate for the child of the relationship between he and Ms Andrews, the sponsoring spouse. Their written request was followed up by a telephone call where it was explained to him that he was required to provide a birth certificate to establish his paternity and that in the event that he failed to do so his visa application would be refused.
On 25 February 2009 the applicant advised the Department in writing that the infant Santana Andrews was a child of the relationship between he and Ms Andrews but that he could not get a copy of her birth certificate as he was not named as the father in it. He stated that Ms Andrews did not want him to contact her and had not allowed him to see the child and that he was involved in court proceedings in relation to the other infant, Aurora de Boer Ortiz.
In the circumstances the delegate made a decision refusing to grant the applicant a Sub Class 820 visa on 30 March 2009.
On 19 April 2009 the applicant applied to the Tribunal for a review of the delegate’s decision. Between that time and the hearing of the application on 31 August 2010 the Tribunal’s disposition of the matter was delayed because of the applicant’s involvement in proceedings in the Family Court. Those proceedings concerned the applicant’s pursuit for relevant orders in respect of the infant Santana Andrews.
In particular the applicant informed the Tribunal that he and the mother of the infant had applied to amend the birth certificate to include his name as her father. However, when spoken to by an officer of the Department on 20 October 2009 he advised that the matter had been referred for a DNA test because the mother had stated on the birth certificate that she did not know who the father of the child was.
On 16 November 2009 the applicant informed an officer of the Tribunal that he could not afford to pay for a DNA test; he did not want to spend the money in the event that the child was not his; the mother, the Family Court or the Tribunal should pay if they want the evidence; and, that the court case concerning the child was being heard in “two weeks” and the Tribunal would have to await the outcome of that.
The Tribunal conducted a hearing on 10 December 2009 where the matter of paternity was discussed. It was suggested the applicant undertake a DNA test to prove his paternity. The applicant did not avail himself of that opportunity.
On 30 December 2009 the Tribunal wrote to the applicant inviting him to comment on information that it considered would be the reason or part of the reasons for affirming the Department’s decision.
It effectively summarised the information contained in the letter from the Registry of Births Deaths and Marriages of 21 December 2009 and informed the applicant that the information was relevant because the Tribunal required proof that the applicant was the father of the relevant child if he was to meet the requirements for a spouse visa. The letter indicated that before the Registry of Births Deaths and Marriages could consider amending the birth record it would be necessary for a forensic report (DNA test result) to be submitted which would establish paternity. Any parentage testing procedure had to comply with the provisions of the Family Law Act1975 (Cth) (FLA).
Notwithstanding the Tribunal’s letter of 30 December 2009 the applicant continued in his failure to produce DNA evidence to it.
Ultimately on 31 August 2010 the Tribunal proceeded to hear the matter. During the hearing the applicant confirmed he was relying upon the birth of the child Santana Andrews to meet the requirements for the grant of the visa. He was informed by the Tribunal that he needed to satisfy it that he was either the biological father of the child or had orders under the FLA. At that time no orders had issued from the Family Court and the applicant did not produce any evidence to confirm his assertion that he was the biological father of the child. When asked if he would be willing to undertake a DNA test he indicated that the Tribunal ought do it on his behalf.
In the meantime the Tribunal was cognizant of the proceedings in the Family Court and afforded some time between the hearing of the application on 31 August 2010 and the delivery of its decision on
25 October 2010 to allow for proceedings then on foot in the Family Court. However, by that time proceedings continued to be inconclusive and in the result the Tribunal determined to make its decision and publish its reasons as it did on 25 October 2010 wherein it refused to grant the applicant a Partner (Temporary) (Class UK) visa.
Grounds of Review
In his application the applicant sought orders for a “grant of permanent residency”. The grounds of his application were as follows:
“a) Failure to realise the onus responsibilities and obligations that I had, have and will have to and for the children;
b) Failure to realise and acknowledge the timeframe of the Federal Magistrates Court and now the Honourable Family Law Court of the Commonwealth Australia by issuing a decision conflicting with the complex matters in progress, orders and direction provided to them by the applicant;
c) Failure to take into account the rules and objectives of the Honourable Courts of the Commonwealth of Australia.”
In addition a late ground was advanced on the first day of the hearing of the application that the Tribunal failed to take into account a relevant consideration when considering the issue of his paternity of Santana Andrews being the legal presumption of paternity available on the evidence before the Tribunal pursuant to s.69Q of the FLA.
Statutory Framework
Section 65 of the Migration Act1958 (Cth) (the Act) provides that if after considering a valid application for a visa the Minister is satisfied of the matters provided for in s.65(1)(a)(i) to (iv) he must grant the visa. If he is not so satisfied he must refuse to grant the visa. Section 65(1)(a)(ii) of the Act requires that the Minister consider criteria prescribed by the Regulations and that they have been satisfied. Relevantly, Schedule 2 of the Regulations which provides provisions with respect to the grant of sub classes of visas provides for the Sub Class 820 – Partner visa. In particular it provides that at the time of lodgement of an application for a Sub Class 820 Partner visa the visa applicant must be “the spouse or defacto partner of an Australian citizen…and sponsored by the spouse or defacto partner.” The criteria to be satisfied at the time of decision include that the applicant remains the spouse or defacto spouse of the sponsor. That requirement is subject to certain exceptions provided for in cl.820.221(3)(b)(ii) which provide as follows:
“(ii)
(A)
(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 1 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 obligation.”
It is plain from the clause that it is not sufficient that the circumstances in (A) or (B) exist in relation to the visa applicant and any child but rather that they must exist as between the visa applicant and a child in respect of whom the sponsor has at least one of the obligations set out in (C) to (E). Clause 820.221(3)(b)(ii) has identical counterparts in the statutory criteria for visa Sub Classes 801 and 100.
Those provisions have been the subject of consideration by the Federal Court in three decisions being Yazbeck v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 458 at [9] – [10]; Fitch v Migration Review Tribunal [2004] FCA 1673; and Srour v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 441.
In summary those decisions are authorities for the propositions that:
a)Access is not established simply because a person happens to have seen a child in the absence of a court order granting access;
b)Sub Clause (A) contemplates some form of continuing access rather than one previous incident of contact and was intended to deal with custody arrangements not arising under the FLA (that is in contrast to Sub Clause (B);
c)A party has a right to custody as an incident of the statutory imposition for parental responsibility by operation of the FLA and accordingly an applicant may satisfy the clause even where there is no court ordered custody or maintenance arrangement.
Ground 1 – Failure to realise the applicant’s onus, responsibilities and obligations toward his children
The applicant complained in his affidavit filed 26 November 2010 at paragraph [8]:
“It is maybe more than probable that those in the handling of my/our visa have not realised and/or acknowledged my/our lawful, proper and natural onus obligations and responsibilities to and for the said children, the family laws, acts, legislations and signatories, their spirit and intent and the authority and jurisdictions, rules and objectives of the Honourable Family Law Courts.”
It was submitted on behalf of the respondents the applicant’s complaint raised in ground 1 misconceives the Tribunal’s function. The Tribunal was empowered only to decide whether it was satisfied that the applicant met the statutory criteria for granting a visa. From its decision it correctly identified that for reasons relevant to the construction of cl.820.221(3)(b)(ii) the applicant could not rely upon his relationship to the child Aurora de Boer Ortiz for the purposes of satisfying that clause. The only question for the Tribunal was whether it was satisfied that the applicant had met the statutory criteria for the grant of the visa. If it was not so satisfied then s.65 of the Act compelled the Tribunal to affirm the Department’s decision. The Tribunal simply had no discretion to consider “the rights of the children and the length of time (the applicant) has spent in this country”.[1] There was no evidence before the Tribunal that the applicant had in fact any contact with or access to the child Santana Andrews or that there were any court orders made under the FLA in relation to the applicant and that child. That matter aside, the FLA would only operate to impose a statutory obligation of parental responsibility if the applicant was in fact the biological father of the child. The Tribunal was not satisfied that the applicant was indeed the biological father of Santana Andrews.
[1] BRD at 16 (Tribunal’s reasons at [35]).
Notwithstanding the absence of evidence the applicant contended that the Tribunal erred in failing to take into account a relevant consideration when considering the issue of paternity of Santana Andrews. That consideration was said to be the legal presumption of paternity available to the Tribunal under s.69Q of the FLA.
A failure to take into account a relevant consideration can amount to a jurisdictional error; Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 335. However, the ground of review is only made out if the decision-maker is bound to take the consideration into account. Factors that a decision-maker is bound to consider when making a decision are ascertained by construing the statute that confers the power; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.
In Srour v the Minister for Immigration and Multicultural Affairs (supra) the court held that a visa applicant had a right to custody as an incident of the statutory imposition of parental responsibility by operation of s.61B and s.61C of the FLA. The respondent contended that notwithstanding the determination of the Court that even if such a matter was a relevant consideration for the purposes of determining whether cl.820.221(3)(b)(ii) of the Regulations was satisfied, it does not necessarily follow that the Tribunal was similarly bound to consider a presumption of parentage contained in the FLA. It was contended that for the applicant to succeed the court must find:
a)The Tribunal did not in fact take s.69Q of the FLA into account when deciding whether the applicant met the requirements for the grant of a Sub Class 820 visa; and
b)The Act properly construed required the Tribunal to do so.
In summary the respondent contended that the applicant’s ground could not succeed because as a matter of law legal presumptions do not apply to the Tribunal’s decision making processes which are administrative in nature but instead are confined to judicial and/or adversarial proceedings. Accordingly, the Tribunal was not required to consider that section.
Section 69Q of the FLA provides:
“Presumption of paternity arising from cohabitation
If:
(a) a child is born to a woman; and
(b) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;
the child is presumed to be a child of the man.”
It is not challenged that there was material before the Tribunal indicating that the child was born on 3 January 2007 thereby determining the relevant period of cohabitation for the purposes of s.69Q FLA is between 1 March 2006 and 16 August 2006. There was some material before the Tribunal suggesting cohabitation during this period. For present purposes I proceed on that premise.
It is also not in contention that the Tribunal did not make reference either to s.69Q FLA or to any presumption of paternity. As the respondents noted in their submissions this omission is unsurprising given that the applicant never raised the issue before either the Department or the Tribunal. The respondent contends that even if the Tribunal was entitled to take s.69Q FLA into account it was not bound to do so.
The respondent contended that s.65 of the Act imposes upon the Minister an obligation to grant or refuse to grant a visa rather than a power to be exercised as a discretion. Accordingly, the satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or to refuse to grant the visa and is a jurisdictional fact or criterion upon which the exercise of that authority is conditioned. In that regard the Tribunal exercises all the powers and discretions conferred upon the decision-maker; s.349 of the Act – Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [37]. It is well settled that the nature of the decision-making process carried out by the Tribunal being administrative in character is not analogous to the conduct and determination of civil litigation. Accordingly, terms such as “balance of probabilities” and even “evidence” as used to describe the material before a Tribunal and which derived from the world of civil litigation provide little assistance in the context of administrative decision-making; Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at [282].
Furthermore it is also well settled that proceedings before the Tribunal are not adversarial; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [17] – [40]. As the High Court noted in that case:
“This court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. This is so, even though, pursuant to section 91V of the Act, the Minister may require an applicant to make or verify a statement on oath or affirmation, and may draw an adverse inference against an applicant if the Minister has reason to believe that “that applicant was not sincere” in complying with the request”.
Notwithstanding the proceedings being described as “inquisitorial” the Tribunal is under no duty to enquire. It merely has a discretion but not an obligation to pursue such other enquiries, if any, as it sees fit; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (supra) at [124]. The nature of the Tribunal’s functions were well explained in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 where in a case involving complaints by a visa applicant of the Tribunal’s failure to make certain enquiries eventually rendering its decision “manifestly unreasonable” the High Court explained:
“[18]It has been said in this court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word ‘inquisitorial’ has been used to indicate that the tribunal, which can exercise all powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of ‘inquisitorial’ is ‘having or exercising the function of an inquisitor’, that is to say ‘one whose official duty it is to inquire, examine or investigate’. As applied to the tribunal ‘inquisitorial’ does not carry that full ordinary meaning. It merely delimits the nature of the tribunal’s functions…
…
[25]Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. It so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected on some other way that manifests itself as jurisdictional error... (Emphasis added)”
In a similar vein observations were made in Minister for Immigration and Citizenship v SZGUR (2011) 273 ALR 223. In that case the court was considering whether the Tribunal had failed to constructively exercise its jurisdiction or have regard to a relevant consideration insofar as the Tribunal did not apparently consider whether to exercise its power under s.427(1)(d) of the Migration Act to get information. The majority observed:
“[19]The power conferred by s 427(1)(d) is to be exercised having regard to the requirement imposed on the tribunal, in the discharge of its core function of reviewing tribunal decisions, ‘to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’ and to act ‘according to substantial justice and the merits of the case’. In so doing it is not to be bound by ‘technicalities, legal forms or rules of evidence’. Section 424 provides that in conducting a review the tribunal ‘may get any information that it considers relevant’. It is required to have regard to any information so obtained in making the decision on the review.
[20]Section 427(1)(d) is ancillary to s 424. those two provisions and s 14, which confers upon the tribunal all the powers and discretions of the person who made the decision under review, give the tribunal wide discretionary powers to investigate an applicant’s claims. But they do not impose upon the tribunal a general duty to make such inquiries…
…
[41]In any event the tribunal was under no obligation to obtain an independent medical report. It was under no obligation derived from s 427(1)(d) to consider whether to obtain such a report. It was entitled to decide the case on the material before it and if the material were insufficient to satisfy it that SZGUR was entitled to the grant of a protection visa, it was required to affirm the delegate’s decision. (Emphasis added)”[2]
[2] Sl427(1)(d) provides that for the purposes of review of a decision the Tribunal may require the secretary to arrange for the making of investigation or any medical examination that the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that investigation for examination.
In summary it follows that the Tribunal’s processes are administrative and neither party before it bears a strict onus. The Tribunal itself has no duty to enquire although it does enjoy the power to obtain a medical report although the Act itself does not impose a duty or obligation upon it to do so. Jurisdictional error may only be demonstrated by a failure to make an obvious enquiry about a critical fact the existence of which is easily ascertained.
Generally presumptions are a matter of evidence. Such as a presumption that a conclusion of fact (the presumed fact) exists which must be drawn if some other fact (the basic fact) is proved or omitted.[3] In the case of a rebuttable presumption of law once the basic fact is established the conclusion as to the existence of the presumed fact must be drawn in the absence of the evidence to the contrary.[4] The effect of a legal presumption is to shift the burden of proof such that if the proponent adduces sufficient evidence to invoke the presumption the Tribunal of fact is bound to decide the issue in the proponent’s favour if the opponent calls no evidence. That is, the latter must adduce evidence on the issue or lose.
[3] Cross on Evidence, Loose Leaf Service, Butterworths at 7240 and 7260.
[4] Cross on Evidence, Ibid at 7270.
The relevant presumption in this instance under s.69Q FLA is a presumption as to a conclusion of fact, that is of paternity arising from cohabitation during the prescribed period. As the respondent noted in its submissions the presumption provided for under the FLA is evidentiary in its nature and capable of being rebutted by proof on the balance of probabilities; s.69Q FLA. In addition it was contended the provision is located in the Subdivision of Division 12 of the FLA which is titled “Proceedings and Jurisdiction” which by sub division D of the Division apply to proceedings under the FLA. Additionally, the respondent noted that sub-division E provides the Family Court with coercive powers in circumstances where the parentage of a child is in dispute in such proceedings permitting the Family Court to make orders requiring a person to give evidence that is material to the question of parentage (s.69V) and requiring a parentage testing procedure such as DNA testing to be carried out on a child or the putative parents of the child (s.69W).
The respondent’s primary submission is the presumption of paternity in s.69Q of the FLA is not and cannot be a relevant consideration for the Tribunal because the operation of such a presumption is entirely inconsistent with the Tribunal’s decision making functions under the Migration Act. For reasons which follow I agree with the first respondent’s contention on this point.
As earlier noted rules concerning presumptions are rules of evidence. The primary role of presumptions is to allocate the burden of proof as between parties to contested proceedings. That is to be contrasted to a review conducted by Tribunal where neither party bears a strict onus of proof, there is no contradictor and the Tribunal has no general duty to make enquiries. As the respondents contended the inappropriateness of applying legal presumptions to Tribunal proceedings are highlighted by the limitations on the Tribunal’s powers. For instance, in contrast to the Family Court, the Tribunal does not have the coercive powers enabling it to compel a person to submit to a DNA test. The Tribunal’s powers are limited under s.4271(1)(d) of the Act to require the secretary to arrange for a medical examination if the Tribunal thinks necessary with respect to the review and to give a report of that investigation or examination. Such a power falls well short of a proscriptive power compelling a person to submit to medical assessment. Furthermore in the context of a DNA test requiring a testing of the putative child nothing in the Migration Act permits the Tribunal to require any person including the sponsor or putative child to submit to or cooperate with such a procedure. Submission by those third parties is required for the testing to be efficacious.
The respondent submitted the Tribunal is not bound by any presumption. In support of that proposition it relied upon the observations of the Full Court in A & Ors v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 per French, Merkel, and Finkelstein JJ. Although in that appeal the court allowed the appeal against Nicholson J’s decision at first instance, the Full Court did not disturb his Honour’s remarks on this point and indeed affirmed his Honour’s approach.
At first instance[5] Nicholson J had rejected a submission by the Minister that one of the ways in which the Tribunal had fallen into error was by failing to recognise that there is a presumption in the Refugees Convention that national protection is effective. In making that submission the Minister had relied upon a decision of the Supreme Court of Canada in Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1. Nicholson J framed the submission in the following terms:
“On behalf of the applicant it is contended this court should recognise the existence in law of Australia of a presumption in the same terms as that recognised by the Supreme Court of Canada in Ward – namely, that in the absence of any evidence of approach to the State by the claimant, the State in which nationality is held is to be presumed capable of providing protection in the absence of any evidence directed to showing the character of the State is non democratic.
I understand this to be a contention for a rebuttal presumption of law being one in which the conclusion of the existence of the presumed fact must be drawn in the absence of evidence to the contrary.”[6]
[5] Minister for Immigration & Multicultural Affairs v A (1998) 156 ALR 489
[6] At 495.
His Honour proceeded then to examine a number of authorities presented to him in support of the contrary position. After consideration of those decisions his Honour proceeded:
“In my opinion there is no foundation in authority or principle which should lead this court to accept the applicant’s submission for the existence of a presumption in terms of Ward.”[7]
[7] At 497.
As his Honour noted, the existence of any such presumption would be inconsistent with the function of the Tribunal to adopt an inquisitorial approach to its review function and that generally it was inappropriate to speak of an onus of proof in hearings by the Tribunal.[8] His Honour’s approach was reviewed on appeal where confirming his Honour’s approach the Full Court observed:
“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. In Re Attorney-General (Canada) v Ward it was said, in relation to an application for convention protection that: ‘…nations should be presumed capable of protecting their citizens.’ But 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. Accordingly, the trial judge’s conclusion that ‘there is no foundation in authority or principle which should lead this court to accept the ‘minister’s] submissions for the existence of a presumption in terms of Ward; is plainly correct…” (Emphasis added)”
[8] At 497.
Although the presumption in Minister for Immigration and Multicultural Affairs v A (supra) was of a kind that a conclusion must be drawn until the contrary is proved the respondent submitted that the Court’s approach applied with equal force to presumptions of fact existing where some other or basic fact is proved. Its submission on this point is plainly correct; Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 760 at [49].
The approach of the Full Court is entirely consistent with s.353(2)(a) of the Migration Act which provides that the Tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence.
It follows in my view that the presumption of paternity in s.69Q of the FLA has no role to play in the Tribunal’s decision making processes and the Tribunal is not bound to take it into account in deciding whether it was satisfied that the applicant met the requirements for the grant of a visa. The applicant contended that it should be unnecessary for him to undergo a DNA test to establish his paternity given the cost of such a test and “the unlikelihood that the cooperation required from the other parties involved will be forthcoming to achieve any meaningful result”. That submission on the part of the applicant highlights the role of s.353(2)(a) in the Tribunal’s proceedings and the inherent difficulties associated with the application of any presumption arising under s.69Q FLA in the context of the Tribunal’s deliberations.
Notwithstanding that matter and the fact that the matter of the presumption itself was never raised before the Tribunal the Tribunal’s approach to the issue demonstrates it was appropriately considered.
In its decision at paragraphs [12] and [13] the Tribunal detailed the matters canvassed between it and the applicant concerning the applicant’s need to undertake DNA testing to prove his paternity.
In particular at paragraph [20] of its decision the Tribunal noted that it asked the applicant if he was willing to undertake a DNA test. It noted he appeared to be unwilling to undertake a DNA test before ultimately concluding that it was not satisfied that the applicant had met the requirements for the grant of a visa.
Consistent with the principles explained above the paternity of the child was a relevant consideration. The Tribunal sought to explore that matter within the bounds of its duties, role and obligations and ultimately concluded as a matter of fact that the applicant did not satisfy the paternity criteria. Although it made no express finding, that is the clear inference available to be drawn from its conclusion.
As was submitted by the respondents the question that the Tribunal was required to address was whether it was satisfied that the applicant met the requirements of cl.820.221 of the Migration Regulations. In doing so it had to consider whether it was satisfied on the basis of the material before it that the applicant was the biological father of the child of the sponsor. It did not have to decide that the applicant was not the father.
In this case it was simply not satisfied that he was. That finding was open to the Tribunal based upon the absence of a birth certificate naming the applicant as the father and in circumstances where on the applicant’s own statements there was a real question concerning his paternity of the subject child. In my view it was open to the Tribunal to reach the conclusion that it did and in doing so it considered all matters relevant to that issue and did not omit the consideration of any relevant matters. This ground of review is dismissed.
Ground 2 – Failure to realise and acknowledge the timeframe of the Federal Magistrates Court and the Family Court by issuing a decision conflicting with the progress and orders of those courts
The applicant complained that the Tribunal failed to take into account either adequately or at all the advanced stage of his proceedings in the Family Court. He contended they were “vitally relevant” to the issue of whether he met the requirements of cl.820.221(3)(b)(ii) of the Regulations and that a decision of the Family Court granting or denying him contact with the children would determine that issue.
The respondents noted that the Tribunal dealt at length with the Family Court proceedings. In particular it noted the Tribunal’s reservations about awaiting the outcome of those proceedings before making a decision and the Tribunal’s deliberations before determining to proceed.
I accept the Tribunal correctly observed that it was under no obligation to defer its consideration of the applicant’s application until the determination of the Family Court proceedings. A failure by it to do so could not disclose any error or jurisdictional error. Indeed as the respondents submitted s.353(1) of the Migration Act requires the Tribunal to pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”. This application has been on foot since 2009 and the applicant had enjoyed many indulgences on account of those parallel proceedings. Ultimately however his rights were not limited to the production of a relevant court order. It was always open to the applicant to prove paternity of the child by undergoing a DNA test. He did not choose to pursue that avenue which was always available to him.
This ground of review is dismissed.
Ground 3 – Failure to take into account the rules and objectives of the Honourable Courts of the Commonwealth of Australia
This ground lacks particulars and insofar as it concerns any substantive matter has been addressed above. It is dismissed.
Summary
In summary the applicant complains that the Tribunal proceeded to determine the application against him without regard to a consideration of a presumption of paternity which arises undes.69Q of the FLA. The applicant’s contentions misapprehend the processes of the Tribunal. The Tribunal’s processes are not governed by strict rules of evidence and the Tribunal is required to assess applications based upon the material placed before it subject to an overriding duty to inquire. In this case the Tribunal made appropriate enquiries and afforded the applicant appropriate opportunities to produce further material before it determining paternity. In the result there was insufficient material placed before the Tribunal to satisfy it that the applicant was in fact the father of the subject child and accordingly it determined the application against the applicant. The matter was one of fact within the jurisdiction of the Tribunal to determine. In reaching its conclusion the Tribunal considered all relevant matters and did not fail to consider any relevant matters.
No jurisdictional error has been demonstrated and accordingly as the Tribunal’s decision is a privative clause decision there is no power for this Court to interfere with it. The application is dismissed.
Orders
The application is dismissed.
Subject to any application for other orders being made within seven (7) days of this date, the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 9 June 2011
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