MIGRATION – Migration Review Tribunal – whether onus or burden of proof lies on Tribunal – absence of express statutory burden – whether peculiar features of its jurisdiction warrant implying such an onus
ADMINISTRATIVE LAW – onus of proof – inapplicability of adversarial rules of evidence to administrative proceedings
PRACTICE AND PROCEDURE – burden of proof – non-applicability to procedure of administrative Tribunal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Case
[2016] FCAFC 52
Decision Date
CaseChat Overview and Summary
In the case of Sun v MIBP, the appellants sought to amend their grounds of appeal to argue that the Migration Review Tribunal (the Tribunal) had an onus of proof under Public Interest Criterion 4020 (PIC 4020) to determine if there was evidence that the appellants had provided false or misleading documents. The respondents opposed the amendment, and the court considered whether the Tribunal had an onus of proof under PIC 4020. The court examined the statutory scheme, including sections 65 and 349 of the Migration Act 1958 (Cth), and found that the Tribunal was not bound by technicalities or rules of evidence. The court concluded that the Tribunal's role was to reasonably suspect that a document was "bogus" rather than to prove it. The court rejected the appellants' arguments and dismissed the appeal with costs.
The central legal issue in this case was whether the Migration Review Tribunal had an onus of proof under PIC 4020 to determine if there was evidence that the appellants had provided false or misleading documents. The court examined the statutory scheme, including the Migration Act 1958 (Cth) and the Migration Regulations, and found that the Tribunal was not bound by technicalities or rules of evidence. The court concluded that the Tribunal's role was to reasonably suspect that a document was "bogus" rather than to prove it. The court found that the appellants' arguments were misconceived and dismissed the appeal with costs.
The court found that the Migration Review Tribunal was not required to prove that the appellants had provided false or misleading documents under PIC 4020. Instead, the Tribunal's role was to reasonably suspect that a document was "bogus" based on the evidence presented. The court found that the appellants' arguments were misconceived and dismissed the appeal with costs. The court also refused the appellants' application to amend their grounds of appeal to include a new argument that was not raised before the Federal Circuit Court.
The final orders of the court were as follows: (1) the application for leave to amend the Notice of Appeal was refused; (2) the appeal was dismissed; and (3) the appellants were to pay the costs of the First Respondent. The court's decision highlights the unique role of the Migration Review Tribunal in reviewing visa applications and the importance of understanding the statutory scheme when interpreting the Tribunal's powers and obligations.
Orders
Orders of the court
1. The application for leave to amend the Notice of Appeal is refused.
2. The appeal is dismissed.
3. The Appellants are to pay the costs of the First Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
A Notice of Appeal was filed in this Court in October 2015. The Appellants shortly before the hearing foreshadowed that they wished to amend their Grounds of Appeal such that the Grounds of Appeal were to be expressed as follows, with the proposed amendment underlined (without alteration):1.The Court Below erred in holding that it is inappropriate to consider that there is a legal onus or burden of proof on the Migration Review Tribunal arising from PIC 4020 (Cl. 4020 of Schedule 4 to the Migration Regulations).2.The Court should have found that:(a)PIC 4020 imposed an onus of proof on, in this case, the Tribunal to ascertain whether there was evidence, in the sense of sufficiently probative information, that the appellant had given, or caused to be given to the Migration Review Tribunal, a bogus document or information that is false or misleading in a material particular; and(b)that that onus had not been discharged.3.…4.The Court erred in failing to find that the Migration Review Tribunal had impermissibly imposed an onus of proof on the appellant to adduce corroborative evidence to rebut its findings of fact.Ground 3 was formally abandoned. Proposed Ground 4 was not an argument advanced before the Federal Circuit Court. It was a new argument sought to be raised for the first time before this Court on appeal. The Respondent Minister opposed leave being granted to amend. Without resiling from the Grounds of Appeal as formulated, Counsel for the Appellants acceded to the proposition canvassed during his oral submissions that in one way or another his principal contention was that: Upon the materials before the Tribunal there was no evidence or no probative evidence upon which the Tribunal could reasonably suspect that the documents were “bogus documents”. For the reasons expressed below, it is concluded that:·the existing Grounds 1 and 2 are misconceived and are to be rejected; ·leave to amend to raise the new Ground 4 should be refused; and·the appeal should be dismissed with costs.THE STATUTORY SCHEME, BOGUS DOCUMENTS & PIC 4020 The decision-making tasks under consideration require attention primarily to be given to s 65 of the Migration Act1958 (Cth) (the “Migration Act”) and Public Interest Criterion 4020. But other statutory provisions also assume relevance. Section 65 provides in relevant part as follows: … after considering a valid application for a visa, the Minister: (a) if satisfied that: …(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and …is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. One of the criteria in respect to which the Minister was required to be “satisfied” for the purposes of s 65(1)(a)(ii) was cl 892.223 of Sch 2 to the Migration Regulations. That criterion provided in relevant part as follows:The applicant:(a) Satisfies public interest criteria … 4020 …; and… Public Interest Criterion 4020, found within Sch 4 to the Migration Regulations, provided at the relevant time as follows: 4020(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)… (3)To avoid doubt, subclauses (1) and (2) apply whether the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:Information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
Decision
Reasons for decision
Finally, and when considering a criterion that “no evidence has become available since the time of application that the information given or used … is false or misleading”, Edmonds J in Talukder v Minister for Immigration and Citizenship [2009] FCA 916, (2009) 111 ALD 405 at 411 observed:[20] In my view, the word “evidence” is used, in contradistinction to the word “information”, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Sch 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion.THE TRIBUNAL DECISION On the facts of the present case, the Migration Review Tribunal was “satisfied” that there were eleven documents which it “reasonably suspected” fell within the definition in s 97. Albeit not in a manner which comfortably fell within the ambit of Grounds 1 or 2, or proposed Ground 4, Counsel for the Appellants contended that for the purposes of Public Interest Criterion 4020 there was “no evidence” – being no evidence of a sufficiently reliable or “probative” nature (Talukder [2009] FCA 916 at [20], (2009) 111 ALD at 411) – that any of the documents were “bogus documents”. The case for the Respondent Minister was that, rather than there being “no evidence” that “bogus documents” had not been given to the Minister, there was an abundance of “evidence” upon which the Tribunal could reach its “reasonable suspicion” that the eleven documents were indeed “bogus”. The case for the Minister was that unlike the statutory provisions in Jasbeer Singh, there was no requirement to establish that one or other of the documents was a “bogus document”; the requirement that was imposed was the much lower standard of simply requiring the Minister (or the Tribunal) to “reasonably suspect” that a document was “bogus”, the factual foundation for that state of “reasonable suspicion” being a standard less than that required “to ground a belief” (George v Rockett (1990) 170 CLR at 115 to 116). To unravel these competing submissions, it is prudent briefly to set forth at least part of the reasoning of the Tribunal. In applying these provisions, the Tribunal relevantly concluded that there were eleven documents which fell within the description of “bogus documents” (without alteration):109. The Tribunal has considered the 11 documents submitted by the applicants to the Tribunal and the matching document that was submitted by either Mr Wenxing Ma and/or Mr Wenwei Ma in their respective applications for Class DF visas lodged with the Department in February 2009. The Tribunal has considered the applicants’ submission that there is no evidence that any of the documents have been altered. The Tribunal has considered his evidence that the documents may have been signed by Mr Wenxing Ma, Mr Wenwei Ma and/or Mr Sun depending on their location, whether in Australia or China and this meant there may be multiple versions of the same document containing different signatures. The Tribunal has considered Mr Sun’s evidence that if he was not in Australia, it would be signed by either Mr Wenxing Ma or Mr Wenwei Ma and then sent by facsimile or email to him in China for his signature. The Tribunal has considered the evidence of Mr Zhou, who was employed at the Cherrabah Resort since January 2008, that this was the practice he adopted. The Tribunal has considered the evidence of Mr Wenxing Ma, Mr Wenwei Ma, Mr Cheng Zhou and Mr Zhan Su about Mr Sun’s role in the businesses. The Tribunal had considered the submission that the documents are insignificant and that the Tribunal should consider all of the evidence and not just focus on a small number of documents.The references to Mr Wenxing Ma and Mr Wenwei Ma are references to the two persons whom Mr Sun claimed were co-owners in a resort business. The reasons for decision of the Tribunal thereafter go on to address each of the eleven documents. By way of example, in respect to the first document it concluded as follows:110. The Tribunal has considered the document marked “1” which was given to the Department in the case of Mr Wenxing Ma (CLF2009/12890), Mr Wenwei Ma (CLF2009/14571) and the same document given to the Tribunal by Mr Sun. In the case of Mr Wenxing Ma, his signature appears above the handwritten date of 22 December 2005; in the application of Mr Wenwei Ma, his signature and that of Mr Wenxing Ma appear above the date 22 December 2005; and in the document given to the Tribunal, the signature of Mr Wenxing Ma appears and in the place where Mr Wenwei Ma had signed, the signature of Mr Sun appears.111. The Tribunal does not accept the applicants’ explanations for the appearance of his signature on the document which was submitted to the Tribunal for the following reasons. The Tribunal does not accept that either of the documents submitted in the cases of Mr Wenxing Ma or Mr Wenwei Ma were sent by fax or scanned and sent by email because there is no indication on the face of those documents as to any facsimile record or that they have been scanned because all of the writing on both documents is very clear. The Tribunal finds that there is insufficient evidence to corroborate the explanation offered, which could include evidence of any of the relevant documents containing original signatures or all the versions of the same document containing all or any of the original signatures.It is unnecessary to extract the manner in which the Tribunal proceeded to conclude that the remaining documents were also “bogus documents” and that the explanations provided by the claimants were to be rejected.
Ratio Decidendi
Legal Principle Established
As at the date of the decision of the Tribunal in the present proceeding, s 349 of the Migration Act provided as follows: Powers of the Migration Tribunal(1)The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2)The Tribunal may:(a)affirm the decision; or(b)vary the decision; or(c)if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or(d)set the decision aside and substitute a new decision.(3)If the Tribunal:(a)varies the decision; or (b)sets aside the decision and substitutes a new decision;the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.This section mirrored s 426 which previously set out the powers of the Refugee Review Tribunal. Section 353 then provided as follows:353 Tribunal’s way of operating(1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.(2) The Tribunal, in reviewing a decision:(a)is not bound by technicalities, legal forms or rules of evidence; and(b)shall act according to substantial justice and the merits of the case.Section 353, it may be noted, was in much the same terms as s 420 which set forth the “way of operating” of the Refugee Review Tribunal. Such statutory provisions were unique neither to the former Migration Review Tribunal nor the Refugee Review Tribunal. Even prior to its incorporation into the Administrative Appeals Tribunal, ss 353 and 420 (for example) had their counterpart in s 33 of the Administrative Appeals Tribunal Act1975 (Cth) (the “Administrative Appeals Tribunal Act”). Section 33(1) now provides as follows: In a proceeding before the Tribunal: (a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.And, following a statutory amendment in 2015, s 2A of the Administrative Appeals Tribunal Act now provides as follows:Tribunal's objective In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal.The comparability between the provisions of the Migration Act and those of the Administrative Appeals Tribunal Act is not surprising.