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MIGRATION - Migration Review Tribunal - spouse visa - whether genuine and continuing married relationship - whether jurisdictional error - domestic violence provisions.

Ejueyitsi v Minister for Immigration [2004] FMCA 935 (3 December 2004)

Ejueyitsi v Minister for Immigration [2004] FMCA 935 (3 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EJUEYITSI v MINISTER FOR IMMIGRATION
[2004] FMCA 935




MIGRATION - Migration Review Tribunal - spouse visa - whether genuine and continuing married relationship - whether jurisdictional error - domestic violence provisions.




VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Minister for Immigration and Multicultural Affairs v Hughes (1999) FCA 325

Briginshaw v Briginshaw (1938) 60 CLR 336

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) HCA 6

McDonald v Director-General of Social Security (1984) 6 ALD 6

Jani Pepaj v Minister for Immigration and Multicultural Affairs (1998) 1528 FCA (25 November 1998)

Applicant:
VINCENT EJUEYITSI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


PEG85 of 2004




Delivered on:


3 December 2004




Delivered at:


Melbourne




Hearing Date:


23 November 2004




Judgment of:


McInnis FM




REPRESENTATION

Counsel for the Applicant:


Mr R Hamilton




Solicitors for the Applicant:


Goz Chambers Lawyers




Counsel for the Respondent:


Ms H Riley




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The Application be dismissed.

(2) The Applicant pay the Respondent's costs fixed in the sum of $7,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH



PEG85 of 2004

VINCENT EJUEYITSI



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. In this application the applicant seeks to review a decision of the Migration Review Tribunal dated 16 June 2004. The MRT had affirmed a decision of the delegate of the respondent that the applicant is not entitled to the grant of a subclass 820 spouse visa.

2. The applicant is a male national of Nigeria who was born on 7 January 1961. He arrived in Australia on 13 April 1997 on a student visa valid until 15 March 1998. He was granted a further student visa valid until 7 May 2000. On 28 February 1999 the applicant married Nola Khan, an Australian citizen ("the nominator").

3. On 12 April 1999 the applicant applied for a spouse visa. The applicant and the nominator were interviewed by a department officer on 22 June 1999. On 29 June 1999 the nominator withdrew her support for the application on the basis that the relationship had ended. The applicant then sought to rely on the domestic violence exception to the requirement that an applicant for a spouse visa be in a continuing spousal relationship at the time of decision, and provided two statutory declarations from competent persons for that purpose.

4. On 30 April 2002 the delegate refused the application on the basis that the statutory declarations lodged by the applicant did not satisfy the legislative requirements. More particularly, the delegate noted that the declarations of the competent persons did not express the requisite opinion. On 27 May 2002 the applicant applied to the MRT for review of the delegate's decision and, as indicated earlier, the MRT affirmed the delegate's decision by its decision dated 16 June 2004.

5. An application was filed in this court on 5 July 2004 and reliance was placed upon an amended application dated 23 September 2004, together with the applicant's contentions of fact and law dated 9 November 2004. The relevant legislation has been referred to by both parties, and in particular is included in the respondent's contentions of fact and law filed 16 November 2004. The MRT itself set out the relevant legislation and in particular Division 1 of the Migration Regulations 1984 (the regulations). It is noted, and I accept, in the submissions of the respondent that the relevant criteria for a spouse visa have been properly referred to in the decision of the tribunal where it appears at pages 186 to 189 of the court book.

6. Essentially, as submitted by the respondent, the applicant and nominator need to be at the time of application in a genuine and continuing spousal relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others (see regulation 1.15A(1A) of the regulations). In determining whether the applicant and nominator are in such a relationship the decision-maker is required to have regard to certain factors including the financial and social aspects of the relationship (see regulation 1.15A(3)). At the time of the decision the applicant and nominator need to continue to have a genuine spousal relationship and the mutual commitment to a shared life as husband and wife to the exclusion of all others, unless, relevantly, the applicant has suffered domestic violence committed by the nominator.

7. In relation to the issue of domestic violence and how it is to be proved, reference was made, appropriately, as indicated earlier, to Division 1.5 of the regulations. I incorporate in this decision the relevant provisions as they appear in paragraph 42 of the MRT's decision as follows:-

"Interpretation

121(1) In this Division:

"competent person" means:

(a) in relation to domestic violence committed against an adult:

(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or

(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or

(iii) a person who:

(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and

(B) is performing the duties of a registered nurse; or

(iv) a person who:

(A) is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and

(B) is performing the duties of a social worker; or

(v) a person who is a court counsellor under the Family Law Act 1975 ; or

(vi) a person holding a position of a kind described in subregulation (2); or

(b) in relation to domestic violence committed against a child:

(i) a person referred to in paragraph (a); or

(ii) an officer of the child welfare or child protection authorities of a State or Territory.

"statutory declaration" means a statutory declaration under the Statutory Declarations Act 195 .

"violence" includes a threat of violence.

(2) The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:

(a) manager or coordinator of:

(i) a women's refuge; or

(ii) a crisis and counselling service that specialises in domestic violence; or

(b) a position with:

(i) decision-making responsibility for:

(A) a women's refuge; or

(B) a crisis and counselling service that specialises in domestic violence;

that has a collective decision-making structure; and

(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.

References to person having suffered or committed domestic violence

1.22(1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.

(2) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.

When is a person taken to have suffered or committed domestic violence?

1.23(1) For the purposes of these Regulations:

(a) a person ( the alleged victim ) is taken to have suffered domestic violence; and

(b) another person ( the alleged perpetrator ) is taken to have committed domestic violence in relation to the alleged victim;

if:

(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or

(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or

(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or

(j) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or

(g) if the alleged victim is a person referred to in subregulation (2) -- the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:

(i) the alleged victim has suffered relevant domestic violence; and

(ii) the alleged perpetrator has committed that relevant domestic violence.

(2) In paragraph (1) (g):

(a) the persons referred to are the following:

(i) a spouse of the alleged perpetrator;

(ii) a dependent of:

(A) the alleged perpetrator; or

(B) the spouse of the alleged perpetrator; or

(C) both the alleged perpetrator and his or her spouse; or

(D) a person in an interdependent relationship with the alleged perpetrator;

(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);

(iv) a person who is in an interdependent relationship with the alleged perpetrator; and

(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.

Evidence

1.24(1) The evidence referred to in paragraph 1.23 (1) (g) is:

(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or

(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.

(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:

(a) the same subparagraph of paragraph (a) of the definition of competent person ; or

(b) subparagraph (b) (ii) of that definition.

Statutory declaration by alleged victim etc

1.25(1) A statutory declaration under this regulation must be made by:

(a) the spouse of the alleged perpetrator; or

(b) if the alleged perpetrator is in an interdependent relationship with a person -- that person.

(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:

(a) set out the allegation; and

(b) name the person alleged to have committed the relevant domestic violence.

(3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:

(a) name that other person; and

(b) set out the allegation; and

(c) identify the relationship of the maker of the statutory declaration to that other person; and

(d) name the person alleged to have committed the relevant domestic violence; and

(e) set out the evidence on which the allegation is based.

Statutory declaration by competent person

1.26 A statutory declaration under this regulation:

(a) must be made by a competent person; and

(b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and

(c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and

(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and

(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and

(f) must set out the evidence on which the competent person's opinion is based.

Statutory declaration not admissible in evidence

1.27 A statutory declaration made under regulation 1.25 or 1.26 is not admissible in evidence before a court or tribunal other than in a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959 ."

8. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-

"16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57."

9. In the applicant's contentions of fact and law and submissions to this court significant reliance was placed upon what was described in those submissions, and indeed which arose out of the amended application, to be jurisdictional error on the basis that in the circumstances the MRT had in fact imposed a test, or at least burden, upon the applicant rather than deciding whether it was satisfied in relation to the issue of whether there was a genuine and continuing married relationship. This was a key issue argued strongly for and on behalf of the applicant. It was conceded that in the event that this basis upon which jurisdictional error has been suggested is not found to have occurred, then other arguments advanced for and on behalf of the applicant would not need to be considered by the court, or at least it would be unnecessary for the court to then pursue the other issue, the other issue primarily being the manner in which the MRT had considered the question of whether or not the applicant had suffered domestic violence of a kind contemplated in the regulations.

10. In support of the substantive submission that the MRT had wrongly imposed a burden upon the applicant, reference was made specifically to the following extracts from the MRT decision:

"36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant's move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations.

37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal (AAT) and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not `seek to determine matters ... by strict application of the rules related to onus of proof', Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that `regard must be had to the application of those rules ... in determining which party has the responsibility of satisfying the Tribunal as to any given fact'. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that,

`the term `onus of proof' (or `burden of proof') ... was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result'

38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that,

`as a matter of common sense', to use His Honour's words, he who asserts, or he seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.' (emphasis added)

39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court's dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory req uirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power.

40. The Tribunal finds that the Applicant has not discharged the `common sense' burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application.

41. That stated, for reasons discussed earlier, it is not necessary to consider whether the domestic violence provisions applied. However in the event that the Tribunal is wrong in its finding that the Applicant was not in a spouse relationship with an Australian citizen or an Australian permanent resident at the of lodgement of the primary application and given that it is uncontroversial evidence that the relationship once shared between the Applicant and Ms Khan had ended the Tribunal will assess whether the Applicant had suffered domestic violence committed by Ms Khan pursuant to clause 820.221(3)(b) of the Regulations."

11. It was argued for and on behalf of the applicant that by imposing on the applicant what might be described as a "commonsense burden of establishing the facts" necessary to enable the tribunal to reach a finding on the critical issue, it may be concluded that the applicant therefore had to discharge that burden of proof. During the course of submissions both parties referred to the Full Court of the Federal Court decision in the matter of Minister for Immigration and Multicultural Affairs v Hughes (1999) FCA 325. It is relevant to note that in that case the presiding justice had agreed with the reasons for judgment of Merkel J with whom Carr J agreed, save and except where Nicholson J decided to refer to other matters. It is useful to set out the relevant extracts from the decision of Merkel J and a further relevant extract from Nicholson J relating to this key issue of burden of proof and the extent to which the MRT needs to be "satisfied" in relation to the issue then before it, namely the genuineness of the relationship.

12. I further note that in paragraph 38 of his decision Merkel J in referring to the learned trial judge decision recites as part of that quotation the often-quoted passage from Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 where the court states:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

13. It is appropriate to also set out the paragraph 7 of the decision of Nicholson J in the Hughes case where his Honour states the following:

"7 In citing Vines in Cam Mansfield J was not addressing any issue of burden of proof. He expressly disavowed the application of any concept of onus of proof, regarding it as not appropriate to administrative inquiries and citing McDonald v Director-General of Social Security (19984) 1 FCR 354 at 358-359 per Woodward J and at 368-369 per Jenkinson J; Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291 at 297; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191."

14. It was argued on behalf of the applicant that in the present case the MRT had imposed an improper burden of proof upon the applicant and that such a burden of proof has no role to play in its deliberations. Instead, the MRT, it was submitted, should have considered whether it was satisfied of the requirements of regulation 1.15A of the regulations, and whether it reached a state of satisfaction relevant to the grant of a visa under s.65 (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) HCA 6). It was submitted that the MRT should not have considered, as it did, whether the applicant met a "commonsense" burden of establishing the necessary facts.

15. Quite properly, the applicant in the outline of contentions of fact and law noted that prior to reference to the burden of proof in paragraphs 37 and 39, which I have set out earlier in this judgment, the MRT did refer to a state of satisfaction that the applicant and Ms Khan may have shared some "form of relationship". It was argued that it did not repeat that language when it came to making its final decision and as a consequence it was submitted the MRT fell into error.

16. By way of response the respondent contended that whilst conceding that the use of the words "commonsense burden of establishing the facts" may have been inappropriate, it was further submitted that in any event the court in an application of this kind needs to be mindful not to analyse too closely the reasons for decision of the MRT. Reliance was placed upon the decision of Merkel J in Jani Pepaj v Minister for Immigration and Multicultural Affairs (1998) 1528 FCA (25 November 1998) and in particular the following passages:

"There was however one matter of concern that I raised with the parties at the hearing. The RRT in the present case, relying upon a passage of Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596, said:

`It is for the Applicant to persuade the Tribunal that all of the statutory elements are made out.'

It is well established that concepts such as onus of proof and burden of proof have no role to play before the RRT: see Immigration and Refugee Law in Australia, Mary Crock (1998) at 138 and 262 and the authorities there cited."

17. The respondent submitted that in the present case the court should have regard to the decision of Merkel J which I note was referred to by his Honour in Hughes case. For present purposes it is sufficient for me to note that whether I am bound by a single justice decision of the Federal Court or not, I am prepared to accept that in this case I should follow the reasoning of Merkel J both in the Hughes decision and in the Pepaj matter.

18. I note further that the respondent during the course of submissions otherwise relied upon the decision referred to earlier of Wu Shan Liang. In particular, it is noted that arising from that decision this court should not look at the reasons of an administrative decision-maker in a way which might be described as being overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

19. In my view, applying the authorities to which I have referred, it is clear that the court does need to be mindful of not undertaking its task in a manner which could offend the principles set out in the Liang decision and should not therefore be overzealous in the process of judicial review. However, it is also necessary to consider carefully the reasons for the decision of the MRT and in particular to consider the reasoning in total. In this case it is appropriate, in my view, to consider paragraphs 36 to 41 (both inclusive) to determine what the tribunal had found and the basis upon which it made its finding. In my view and on a proper reading of paragraph 36 of its reasons for decision, and to a lesser extent the second sentence in paragraph 40 which I shall refer to presently, the MRT had simply embarked upon a fact-finding mission where ultimately it was not satisfied that the relationship was one which could properly be described as a genuine and continuing married relationship as required by law.

20. It had made that finding after considering relevant material. It was not bound to necessarily embark upon the task of seeking to determine whether a burden of proof does or does not arise. It had correctly referred to the fact that it is not appropriate for a tribunal of this kind to strictly apply rules relating to onus of proof. It had not in reciting the principles necessarily, in my view, departed from the principles to which reference has been made in the Hughes decision. However, by referring to its finding in paragraph 40 "that the applicant has not discharged the 'commonsense' burden of establishing the facts necessary to enable the tribunal to reach a finding on the critical issue", the MRT has raised, perhaps unfortunately, a perception that it had imposed upon the applicant a burden which as a matter of law it was not entitled to impose.

21. Reading its reasons carefully, however, and noting that it should avoid the "onus" terminology (see McDonald v Director-General of Social Security (1984) 6 ALD 6), I am prepared to conclude in the present case that the MRT has indeed simply embarked upon its task in a way which led it to a conclusion that it was not satisfied that the evidence before it would allow it to conclude that the relationship in this instance was one of a genuine and continuing married relationship as required by law. Although in paragraph 40 of its decision the MRT states it is "unable to reach a finding that the applicant was the spouse of Ms Khan at the time of lodgement of the primary application", it did so, unfortunately, in the context of that same paragraph where it referred to the "commonsense burden of establishing the facts". Although that is an unfortunate occurrence in terms of the reasoning and the manner in which the MRT has expressed its findings, I am not prepared to conclude that it has in reality done anything more than indicate that it was not satisfied that the appropriate relationship existed as required by law.

22. It seems to me that that principal finding in paragraph 36 of the MRT's decision is not tainted or indeed rendered fatal by the subsequent discussion of the law in relation to a burden of proof. Indeed, it may simply be that the MRT was grappling with the concept of burden of proof against the backdrop of correctly reciting appropriate authorities where it is clear that the application of the rules related to onus of proof are not appropriate for the tribunal and where it is clear that in all the circumstances the MRT had after reciting the arguments advanced on behalf of the applicant who was represented simply made appropriate findings that it was not satisfied in relation to the key issue to be resolved, namely whether or not the applicant and the nominator were in a relationship of a kind required by law for the purposes of the visa application. It had after all considered the statutory declarations and other material before it and did so in the course of its reasoning as required.

23. Clearly, therefore, having found that, in my view, there is no jurisdictional error arising out of the use of the expression "commonsense burden of establishing the facts", it would follow therefore that there is no error of a kind which would attract judicial review. For that reason, having once made a finding of fact of a kind which was fatal to the application, namely that the relationship "falls short of a genuine and continuing married relationship as required by law", it is unnecessary for this court to consider further the arguments advanced for and on behalf of the applicant which were the subject of a response by the respondent relating to the issue of domestic violence.

24. For those reasons it follows the application should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 3 December 2004
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