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Minister for Immigration and Multicultural Affairs v Hughes

Publisher Australia: Federal Court
Publication Date 31 March 1999
Citation / Document Symbol FCA 325
Cite as Minister for Immigration and Multicultural Affairs v Hughes , FCA 325 , Australia: Federal Court, 31 March 1999, available at: http://www.refworld.org/docid/3ae6b7484.html [accessed 11 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Application for remaining relative visa - whether applicant disqualified by reason of not establishing that he or she usually reside in the same country as overseas near relative - whether Immigration Review Tribunal's reasons for decision adequately referred to the evidence or material on which the findings of fact were based.

Migration Act 1958 (Cth) ss 368(1), 476(1)(a)

Migration Regulations 1994 regs 1.15, 1.15(2)(a)(i)

Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 - considered

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 - cited

Wasfi v Commonwealth of Australia (1998) 155 ALR 310 - considered

Santa Sabina College v Minister for Education (1985) 58 ALR 527 - cited

Vines v Djordjevitch (1955) 91 CLR 512 - distinguished

Cam Mui Chi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Mansfield J, 16 June 1998) - not followed

Minister of State for the Army v Dalziel (1944) 68 CLR 261 - distinguished

Commissioner of Stamp Duties v Attwell [1973] AC 558 - distinguished

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v HUGHES

WAG 153 of 1998

CARR, RD NICHOLSON & MERKEL JJ

31 MARCH 1999

PERTH

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

 

REASONS FOR JUDGMENT

CARR J:

1. I have read in draft the judgment of Merkel J. I agree with his Honour's reasons and the orders which he proposes.

REASONS FOR JUDGMENT

R D NICHOLSON J:

2. I have had the advantage of receiving in draft the reasons for judgment of Merkel J and the concurrence of Carr J. I rely on the former reasons for its statement of facts and issues relevant to this appeal save as it is necessary to refer to them for the purposes of these reasons.

3 The central issue raised by the appeal is whether the primary Judge was correct in the construction which he gave to reg 1.15 of the Migration Regulations 1994 ("the regulations"). At the core of the reasoning of the primary Judge is the relevance of decisions exemplified by Vines v Djordjevitch (1955) 91 CLR 512 at 519. It was Vines which was relied upon in Cam Mui Chi v The Minister for Immigration & Multicultural Affairs and Anor (Mansfield J, Federal Court of Australia, 16 June 1998, unreported) to reach a different view of the proper construction to be given a prior version of the regulation than that reached by the primary Judge.

4 I do not have the confidence of my brother judges in this appeal that the principles of construction reflected in Vines and other decisions relating to provisos and exceptions are not relevant to the interpretation of reg 9. In saying that, however, I agree with them that there is no place for the importation of the concept of an onus or burden of proof before the Immigration Review Tribunal ("the Tribunal").

5 In Vines at 519-520 (in a passage relied upon by Mansfield J in Cam) it was said:

"When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally."

On the other hand:

"[I]t may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v Babcock & Wilcox Ltd (1929) 43 C.L.R. 163; Pye v Metropolitan Coal Co Ltd. (1934) 50 CLR 5614; (1936) 55 C.L.R. 138; Darling Island Stevedoring & Lighterage Co Ltd. v. Jacobsen (1944) 70 C.L.R. 635; Barritt v Baker (1948) V.L.R. 491, at p. 495;Dowling v Bowie (1952) 86 C.L.R. 136."

It will be observed that what was there said by the High Court is not dependent upon characterisation of the relevant statutory provision as a proviso or exception. Rather, the matter is laid down as an issue of broad general principle applicable where conditions of general application give rise to a right but "additional facts of a special nature may be made a ground for defeating or excluding the right". As the High Court there made clear, whatever the form of enactment the denial of the right by reason of the additional or special facts raises conditions of substance for placing a burden of proof on the party seeking to rely upon the additional or special matter.

6 The party seeking to rely upon the disqualification is the party seeking to resist the enforcement of the right which has arisen pursuant to subreg 9(1).

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.

8 What Mansfield J was addressing was the question whether the Tribunal had fallen into error in requiring the applicant to satisfy it that the spouse applicant had no overseas near relatives. He concluded the Tribunal had not purported to impose a legal onus of proof upon the applicant when it found itself unable to reach a conclusion favourable to him in terms of reg 9(2). He rejected the applicant's contention that, in the absence of a positive finding of disqualifying facts under reg 9(2), the eligibility for the visa should have been found to exist.

9 Having adverted to Vines in the passage previously cited, Mansfield J said:

"Although reg 9 is structured firstly with the positive matters required to be found, and then with the disqualifying matters if they are found, in my view they reflect a compendious set of matters of which the respondent, or on review the Tribunal, must be satisfied. They relate to two understandably relevant matters to serve the purpose of the class of visa in question: the presence of close family in Australia, and the absence of close family in the country of citizenship or of residence of the visa applicant. The disqualification as expressed is, in my view, but one of the two relevant states of affairs which reg 9 recognises as significant. In a case where an issue as to whether there is an `overseas near relative' arises, it is my conclusion that the respondent or, on review, the Tribunal is directed by reg 9 that the visa applicant is not entitled to be granted the visa sought unless the respondent or the Tribunal is satisfied, amongst other matters, that there are no overseas near relatives. If it is not so satisfied, reg 9 will operate so as to disqualify the visa applicant from eligibility for that visa."

10 That conclusion is consistent with the requirements of subs 65(1) of the Act that the Minister or the Tribunal be satisfied that the criterion are met. There is no question of the burden of proof being wrongly put on one party or the other. It should be acknowledged that the categorisation of reg 1.15 as within the first category in Vines (the step preferred by Mansfield J) sits comfortably with the requirement in s 65(1) that the Tribunal be satisfied. It does so because it is more probable than not that the circumstances relevant to the application of the disqualifying circumstances are within the knowledge of the applicant.

11 The primary judge concluded the matters referred to in reg 1.15(2) lead to the conclusion that those matters are not to be treated as if recited in reg 1.15(1) as defining circumstances. That is, he disagreed with Mansfield J that reg 1.15 was to be interpreted as if it fell into the first category of provisions described in Vines at 519. His Honour's reasons for so concluding were:

"First, the draftsman has chosen to express sub-reg 1.15(2) as a proviso which describes disqualifying circumstances. The ordinary meaning of the word `disqualified' relates to termination or defeasance of a right or entitlement and that meaning is reinforced when used in conjunction with the word `unless'.

Second, it is the purpose of reg 1.15, as drawn, to provide general or primary definition of a `remaining relative' from which an entitlement will flow subject to defeat in any of the circumstances specified in sub-reg 1.15(2). That is, there is a general statement of who is a `remaining relative' but there is a proviso that a person will cease to be a `remaining relative' on special grounds which depend upon new or additional facts. (Vines v Djordjevitch (1955) 91 CLR 512 at 519)."

12 It is uncontrovertible these factors fall squarely within the second category of provisions described in Vines at 519-520.

13 I consider the features of the regulation referred to by the primary judge make it inevitable that the regulation be categorised in the second category referred to in Vines at 519-520, with the issue of burden of proof adjusted to accommodate the requirements of s 65(1) of the Act.

14 I otherwise agree with the reasons for judgment of Merkel J. Accordingly for these reasons I agree that the primary judge was not in error.

15 It follows I also agree the appeal should be dismissed with costs.

REASONS FOR JUDGMENT

MERKEL J:

Background

16 The respondent ("Mrs Hughes") is the mother of Keith John McFadyen ("McFadyen"). She married and resided with McFadyen's father in Scotland. In 1984 Mrs Hughes divorced McFadyen's father and subsequently migrated to Australia in 1992. McFadyen remained in Scotland.

17 On 4 September 1995 Mrs Hughes signed an undertaking to sponsor the migration of her son to Australia. McFadyen's application to migrate, on a Class AY Subclass 104 Preferential Relative (Migrant) visa ("the remaining relative visa") was lodged in June 1996 but was refused the following month. In August 1996 Mrs Hughes applied for departmental review of the decision to refuse the grant of a visa to her son. In April 1997 McFadyen's application for a remaining relative visa was again refused. In May 1997 Mrs Hughes applied to the Immigration Review Tribunal ("the IRT") for a review of that decision. On 14 January 1998 the IRT affirmed the decision refusing to grant a remaining relative visa to McFadyen.

18 Mrs Hughes made application to the Court under s 46 of the Migration Act 1958 (Cth) ("the Act") for the review of the decision of the IRT refusing the remaining relative visa. On the review the trial judge, Lee J, concluded that the written statement of the IRT's reasons for decision did not comply with the requirements of s 368(1) of the Act with the consequence that the procedures required by the Act to be observed had not been observed: see s 476(1)(a). Section 368(1) provides:

"368(1) Where the Tribunal makes its decision on a review, the Tribunal must,...prepare a written statement that:

(a) sets out the decision of the Tribunal on the review;

(b) sets out the reasons for the decision;

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

Lee J did not regard the omission of the RRT to comply with s 368(1) as "insignificant" and determined to exercise his discretion under s 481 of the Act to set aside the decision of the IRT and remit the matter back to the IRT for determination according to law.

Legislative framework

19 Section 65 of the Act provides that after considering a valid application for a visa the appellant ("the Minister") is to grant the visa if satisfied that, inter alia, the criteria prescribed for it by the Act, or the Migration Regulations 1994 ("the Regulations"), have been satisfied. If not so satisfied, the Minister is to refuse to grant the visa.

20 Save for one matter it was common ground that McFadyen's application for a remaining relative visa met the requirements of the Act and the Regulations. The matter in issue was whether McFadyen was a "remaining relative" as defined in reg 1.15 of the Regulations. The regulation provides as follows:

"1.15(1) An applicant for a visa is a remaining relative if the applicant has a relative who:

(a) is:

(i) a brother, sister or parent; or

(ii) a step-brother, step-sister or step-parent;

of the applicant; and

(b) is:

(i) an Australian citizen; or

(ii) an Australian permanent resident; or

(iii) an eligible New Zealand citizen; and

(c) is usually resident in Australia;

unless the applicant is disqualified under subregulation (2).

(2) An applicant is disqualified if:

(a) the applicant or the spouse (if any) of the applicant:

(i) usually resides in the same country, not being Australia, as an overseas near relative; or

(ii) has had contact with an overseas near relative during a reasonable period preceding the application; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(c) the applicant is a child who:

(i) has not turned 18; and

(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (in this paragraph called `the adoptive parent') while overseas;

but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months.

(3) In this regulation,

`overseas near relative' means a person who is:

(a) a parent, brother, sister or non-dependant child; or

(b) a step-parent, step-brother, step-sister or non-dependent step-child;

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1)."

21 As McFadyen's mother, Mrs Hughes, was a parent who was an Australian citizen McFadyen met the requirements in reg 1.15(1) unless he was disqualified under reg 1.15(2). To be "disqualified" under reg 1.15(2)(a)(i) McFadyen must be a person who usually resides in the same country as an overseas near relative. Regulation 1.15(3) defines "overseas near relative" as, inter alia, a parent of the applicant. The critical issue in the present matter was whether McFadyen was a person who "usually resides in the same country, not being Australia" as his father.

The IRT decision

22 The material before the IRT as to the whereabouts of McFadyen's father was sparse. Lee J summarised the relevant evidence and material before the IRT as follows:

"The relevant evidence or material in this matter may be shortly stated. McFadyen's father was born in Greenock in 1953. He married McFadyen's mother in 1972 at which time both parties were residents of Greenock. They lived in Greenock thereafter until they separated in 1981. From May 1981 McFadyen's father was in contempt of the order of the Scottish court which required him to pay maintenance. He has had no contact with his family since that order. His last known address in 1984 appeared to be care of lodgings at Greenock."

23 His Honour observed, correctly in my view:

"If an inference may be drawn from that material that McFadyen's father resides in Scotland today, the period of time that has elapsed since his whereabouts were last known (14-17 years) and the apparent intention, formed in 1981, to avoid complying with the court order made against him, do not make that inference overwhelming. A tribunal, properly instructed, may regard that material as insufficient for it to find as a fact, on the preponderance of probabilities, where McFadyen's father now resides. (See: Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 per Finkelstein J at 400). If a tribunal were not persuaded by the material that such a finding of fact could be made then the ultimate finding of fact, that McFadyen usually resides in the same country as his father, could not be made."

24 After setting out details of the remaining relative visa application by McFadyen and reg 1.15, the IRT described "the evidence" before it as follows:

"Full particulars of the original application together with all supporting documents may be found in the Department's file F96/105143 which has been submitted to the Tribunal pursuant to section 352(2) of the Act. In coming to its decision the Tribunal has had regard to the contents of the file as well as to the various submissions lodged in support of this application for review. The Applicant and her brother give oral evidence under oath at a hearing before the Tribunal."

25 The IRT accepted that McFadyen's application was founded on the premise that he is the "remaining relative" of an Australian citizen, namely his mother, Mrs Hughes. The IRT then set out the crux of its decision in two paragraphs:

"The Applicant and the Principal's father were divorced in 1984. The Applicant had custody of the two children from that marriage. The evidence suggests that the Principal's father continues to reside in Scotland. In 1986 the Applicant married John Hughes and has one son from that union. When the Applicant and her family migrated to Australia in 1992 the Principal was supposed to come as well as part of the family unit. However he did not get on with his step-father and made a last minute decision to remain in Scotland.

The Tribunal finds on the evidence that the Principal does not meet the definition of a `remaining relative' as set out under regulation 1.15 of the Regulations. He is `disqualified' under subparagraph (2) of that provision because he has an `overseas near relative' usually residing in the same country. Both the Principal and his father reside in Scotland. The term `overseas near relative' is defined in subparagraph (3) as including a parent."

26 In these paragraphs the IRT made a finding "on the evidence" that McFadyen usually resides in the same country, being Scotland, as his father. The written statement of the IRT's reasons for decision complies with ss 368(1)(a), (b) and (c). However, s 368(1)(d) required the IRT to refer to the evidence or any other material on which its finding, that McFadyen usually resides in the same country as his father, was based.

27 Compliance with s 368(1)(d) is to be determined from the IRT's written statement of its reasons for decision. Save for the general reference to all of "the evidence" before the IRT, no other reference was made by the IRT to evidence or other material on which its "same residence" finding of fact was based.

28 Counsel for the Minister contended that there was sufficient compliance with s 368(1)(d) as the IRT had referred to all of the evidence and material before it. I cannot accept that submission; to do so would negate s 368(1)(d). In the alternative, counsel contended that any breach of s 368(1) was insignificant as the evidence as to the whereabouts of McFadyen's father was not in issue and was readily ascertainable from the material before the IRT. In my view the submission does not assist in determining whether there has been compliance with s 368(1)(d) of the Act; rather, it is in truth directed to the different question of whether the Court should exercise its discretion to decline to grant relief in the particular circumstances of the present case.

29 Lee J was correct in concluding that s 368(1)(d) had not been complied with and that, as a consequence, the ground of review under s 476(1)(a) had been established.

Should Lee J have exercised his discretion to decline to grant relief?

30 In Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 at 647 I considered the Court's discretion to decline to grant relief under s 481(1) of the Act. Section 481(1) of the Act confers discretionary power on the Federal Court, inter alia, to set aside the decision the subject of the application for review and refer the matter back to the tribunal for further consideration.

31 Although the discretion to grant relief under s 481(1) is conferred in general terms, it must be exercised judicially. Prima facie, upon an applicant establishing that the ground for review under Part 8 has been made out, the applicant is entitled to appropriate relief unless a valid reason exists for refusing it. As was pointed out by Sackville J in Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238, it is a proper exercise of the discretion conferred by s 481(1) to decline to grant relief and to affirm a decision of the IRT, notwithstanding that it has erred in law, if the IRT's findings of fact preclude the applicant from satisfying the criteria upon which the fate of the application depends. Sackville J states that remittal of the matter in those circumstances "would be futile". See also Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609 at 616; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-561 and Ranatora v Minister for Immigration and Multicultural Affairs 154 ALR 693 at 697-698.

32 The discretion to refuse relief where there had been a denial of natural justice was considered in Wasfi v Commonwealth of Australia (1998) 155 ALR 310 at 323-324. In Wasfi, I concluded that even without a provision such as s 481(1), there is a discretion in the Court to decline to grant relief if the administrative body on the remitter would be "bound in law" to arrive at the same decision as the case that could be put for any other decision was "hopeless". See for example Mobil Oil Canada Ltd v Canada-New Foundland Offshore Petroleum Board (1994) 111 DLR (4th) 1 at 18-19. However, as Beaumont J pointed out in Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540, the Court ought not to exercise the discretion to refuse relief if it is "possible" that the end result might not be the same at a further hearing.

33 The Minister contended that on the proper construction of reg 1.15(2)(a)(i) McFadyen's case for a remaining relative visa could not succeed. The Minister argued that:

* the sub-regulation requires that an applicant for a remaining relative visa establish that he or she does not usually reside in the same country, not being Australia, as an overseas near relative;

* accordingly, McFadyen was required to establish that his father does not usually reside in Scotland (or the United Kingdom);

* on any view of the evidence and material on that issue McFadyen could not, and did not, establish that his father no longer resided in Scotland (or the United Kingdom);

* Lee J should not have granted relief as the IRT, on the evidence and material before it, was obliged to refuse McFadyen's application for review.

34 In my view there are a number of difficulties confronting the Minister's submission. Firstly, it requires the Court to read into the criterion in reg 1.15(2)(a)(i) a negative that is not there. The ordinary and natural meaning of the language used in regs 1.15(1) and (2) requires that two elements be established - qualification (reg 1.15(1)) and disqualification (reg 1.15(2)(a)). Once the qualifying elements are satisfied the criterion will be met "unless" the disqualifying element is satisfied, that is, that the applicant "usually resides in the same country, not being Australia, as an overseas near relative". The disqualifying element requires a positive finding that the IRT is satisfied that the applicant usually resides in the same country, not being Australia, as the overseas near relative: see s 65(1)(a)(ii) of the Act. I cannot discern any proper basis for reading the sub-regulation as requiring disqualification if the applicant has not established to the satisfaction of the Minister or the IRT that he or she does not usually reside in the same foreign country as an overseas near relative

35 The context in which reg 1.15 is to operate supports my construction. Section 65(1) requires the Minister to grant the visa if he is "satisfied" the criterion is met and to refuse it if "satisfied" that the criterion is not met. It is well established that in determining whether the requisite state of satisfaction is met for the purpose of s 65(1) concepts such as onus and burden of proof have no role to play before the IRT: see Immigration and Refugee Law in Australia, Mary Crock (1998) at 138 and 262 and the authorities there cited. The question is not one of onus but one of satisfaction: see Pepaj v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, 25 November 1998) at 7.

36 The Minister's construction imports, quite wrongly in my view, the concept of an onus or burden of proof in respect of the "same residence" criterion which is not warranted by the language of the criteria for disqualification. If an onus or burden was intended the relevant disqualifying element would have been expressed as applying unless the applicant has established that he or she does not usually reside in the same foreign country as the overseas near relative. In my view decisions in relation to the onus or burden of proof in respect of exceptions or provisos (see for example Vines v Djordjevitch (1955) 91 CLR 512 at 519) are not of assistance in the construction of reg 1.15. Thus, the Minister's reliance on Vines and Cam Mui Chi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Mansfield J, 16 June 1998), as importing into reg 1.15 some kind of onus or burden of proof on an applicant to prove absence of the same foreign residence is in my view erroneous. I also do not consider that cases such as Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 274-275 and Commissioner of Stamp Duties v Attwell [1973] AC 558 at 561, which consider whether a proviso adds to or merely qualifies that which precedes it, are of assistance.

37 I would add that if, contrary to my view, the Vines approach to construction was applicable I would not accept that it produces the result contended for by the Minister. In that regard I agree with the reasons given by Lee J at 11-13 for not applying Vines or following Mansfield J in Cam Mui Chi.

38 Finally, as pointed out above, the Minister also submitted that as there was no dispute about the evidence as to the whereabouts of McFadyen's father, the failure to comply with s 368(1)(d) was "insubstantial" and, as a consequence, Lee J ought to have been declined to grant relief. In response to that submission below Lee J said (at 9-10):

"What is required is that there be a failure to observe procedures required by the Act to be observed in connection with the making of a decision and that the failure be more than insubstantial. Having regard to the principles expressed by the High Court in Wu, to meet the requirements of par 476(1)(a) a failure to comply with s 368 of the Act would need to be a default that is not an oversight of slight consequence when read in the context of the reasons as a whole. In the instant case the positive finding of fact that McFadyen's father resides in Scotland determined the fate of the application. Failure to observe the requirements of s 368 in respect of that finding would make that default more than insubstantial unless the material before the Tribunal made the finding of fact so obvious that it was unnecessary to identify the material relied upon to be able to inform an affected party of the reasoning process applied by the Tribunal. (See: Mohamed (supra) at 14.) As set out above the material before the Tribunal was not of that class and failure to refer to the material relied upon for the finding became a failure to explain how the decision was made.

The fault in a failure to identify evidence or material relied upon for a finding on a material question of fact is that it may disguise a flaw in the reasoning process and, therefore, a ground for judicial review. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-367.) In cases where the evidence relevant to a finding on a material question of fact is minimal, or lacking probative force, and the evidence or material on which the finding is based is not referred to, it is not possible to ascertain how that evidence or material has been dealt with or how the decision is explained. In the present case the terms of the relevant regulations made the explanation important.

As set out above, under the Act a visa is to be granted to an applicant who satisfies the criteria and circumstances of Subclass 104 of Schedule 2 of the Regulations. In this case the only question as to whether McFadyen met the requirements of Subclass 104 turned on whether McFadyen was a "remaining relative" as defined in reg 1.15. Under sub-reg 1.15(1) a person is a "remaining relative" if that person meets the requirements of that sub-regulation unless "disqualified" under sub-reg 1.15(2)."

and at 13-14:

"It follows from the foregoing that the failure to refer to evidence or material relied upon for the finding of fact that McFadyen usually resides in the same country as his father is not an insignificant omission. McFadyen was entitled to the grant of a visa if the Tribunal was unable to be persuaded by the evidence or material that a finding of fact could be made that McFadyen did so reside. The reasons of the Tribunal record that the Tribunal found that both McFadyen and his father resided in Scotland at the time the Tribunal made its decision. The reasons do not set out how the Tribunal was persuaded that the preponderance of probabilities supported such a conclusion. The only statement made by the Tribunal was that "(the) evidence suggests that (McFadyen's) father continues to reside in Scotland". That falls short of explaining how the Tribunal found as a fact that he did, and does not refer to the evidence or material on which the finding was based. As was stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361:

"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."

As noted earlier, failure to comply with requirements of s 368 may disguise application to the evidence of an incorrect interpretation of relevant provisions of an act or regulation. In this case such an error may have occurred. The Tribunal may have understood that criteria for entitlement to the grant of a visa would not be satisfied if it were not established as a fact that McFadyen did not usually reside in the same country as his father. Such a misinterpretation of reg 1.15 may have produced the assumption that he did so reside if the contrary were not established which then became translated as a finding of fact in the reasons of the Tribunal."

I respectfully agree with, and cannot usefully add to, his Honour's reasons for rejecting the Minister's "insubstantiality" argument.

Conclusion

39 For the above reasons in my view the appeal is to be dismissed with costs.

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