FEDERAL COURT OF AUSTRALIA

 

MIGRATION - remaining relative visa - construction of reg 9 of the Migration Regulations (1989) - meaning of adoption - difficulty of translation of word “adoption” from Vietnamese - whether failure to consider all the evidence - whether Tribunal addressed material before it rationally.

MIGRATION - adequacy of Tribunal’s reasons - consideration of Tribunal’s failure to identify reason for refusal of application among one of several possible reasons.

MIGRATION - remaining relative visa - construction of reg 9 of the Migration Regulations (1989) - regulation contained proviso containing disqualification criteria - Tribunal expressed that it was not satisfied that applicant was “remaining relative” - whether regulation required a positive finding that disqualification criteria applied - effect of proviso.

PRACTICE AND PROCEDURE - High Court order nisi - remittal to Federal Court - whether Federal Court has jurisdiction to amend order nisi - whether Court can only consider matters as determined in Pt 8 of the Migration Act 1958 (Cth) - interpretation of s 485(3) of Migration Act 1958 (Cth).

Migration Act 1958 (Cth) (as amended to 1989) ss 24(3) and 135

Migration Act 1958 (Cth) ss 353, 368, 458(3), 476 and 485(3)

Migration Regulations (1989) regs 2, 2A, 9, 34A and 41(1), Sch 2

Judiciary Act 1903 (Cth) s 44(1) and (2A)

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, applied

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, applied

Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481, applied

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, applied

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, applied

Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, applied

McDonald v Director-General of Social Security (1984) 1 FCR 354, considered

Vines v Djordjevitch (1955) 91 CLR 512, considered

Dinnison v The Commonwealth (1997) 74 FCR 184, applied

Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 16,

152 ALR 177, considered

Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 10,

151 ALR 711, considered

Thambythurai v Minister for Immigration and Multicultural Affairs (Finkelstein J,

16 September 1997, unreported), considered

CAM MUI CHI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and JOSEPH ITALIANO

VG 406 of 1997

MANSFIELD J

MELBOURNE

16 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 406 of 1997

 

 

BETWEEN:	cam mui chi Applicant
AND:	the minister for immigration and multicultural affairs FIRST Respondent   JOSEPH ITALIANO SECOND RESPONDENT

 

 

JUDGE:	MANSFIELD J
DATE:	16 June 1998
PLACE:	melbourne

THE COURT ORDERS THAT:

1.         The order of the Immigration Review Tribunal made on 12 August 1996 be quashed.

2.         The application for review made on 25 July 1994 be remitted to the Immigration Review Tribunal for rehearing and that the Immigration Review Tribunal be differently constituted from that Tribunal as constituted when the application for review was heard and then determined on 12 August 1996.

3.         The first respondent pay to the applicant her costs of this application to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 406 of 1997

 

 

BETWEEN:	cam mui chi Applicant
AND:	the minister for immigration and multicultural affairs FIRST Respondent   JOSEPH ITALIANO SECOND RESPONDENT

 

 

JUDGE:	MANSFIELD J
DATE:	16 June 1998
PLACE:	melbourne

REASONS FOR JUDGMENT

NATURE OF APPLICATION

This matter involves an application to review a decision of the Immigration Review Tribunal (“the Tribunal”) given on 12 August 1996.

The application was not made, in the first instance, to this Court under s 475 of the Migration Act 1958 (Cth) (“the Act”).  Instead, on 18 June 1997, the applicant applied to the High Court for orders that the first and second respondents do show cause why writs of mandamus, prohibition and certiorari should not issue in respect of that decision of the Tribunal, and for the necessary extension of time so to do.  In those proceedings, the Tribunal member whose decision was challenged was named as the second respondent.  He did not participate in the hearing, and it is not necessary separately to refer to him hereinafter.  I shall hereinafter refer to the first respondent the Minister for Immigration and Multicultural Affairs as “the respondent”.  Dawson J on 18 June 1997 made orders extending the time for the application.  His Honour then made orders that the respondent do show cause why writs should not be issued directed to the respondent requiring him to cause the application for review by the Tribunal to be further determined according to law, and prohibiting the respondent from acting upon or giving effect to the decision of the Tribunal of 12 August 1996, and quashing the decision of the Tribunal made on that date.  There were four specified grounds, namely:

 

“(a)   The second respondent failed to determine the application for review in IRT Application V94/01060 according to law and the decision is thereby beyond his jurisdiction because the question of whether or not the spouse of the principal applicant was “adopted” for the purposes of Reg. 9(2)(a)(i) and (3)(a) was determined without reference to the definition of “adopted” contained in Reg 2A(1)(c), (2) of the Migration (1989) Regulations;

 

(b)   The second respondent failed to determine the application for review in IRT Application V94/01060 according to law and the decision is thereby beyond his jurisdiction because the second respondent failed to consider whether the principal applicant and his spouse satisfied the criterion laid down by the Migration (1989) Regulations for himself but considered only whether the applicants could obtain documentary “evidence” from Vietnam to determine the question for him;

 

(c)   The second respondent failed to determine the application for review in IRT Application V94/01060 according to law and the decision is thereby beyond his jurisdiction because the second respondent considered whether the principal applicant and his spouse had provided evidence to negate their exclusion from the preferential Family Visa class created by Migration (1989) Regulations Reg. 10 (and Schedule 2, Part 3, Item 2) when on the proper construction of the Regulations they were under no obligation to do so;

 

(d)   The second respondent failed to determine the application for review in IRT Application V94/01060 according to law and the decision is thereby beyond his jurisdiction because the second respondent determined that the principal applicant was disqualified by Reg. 9(2) of the Migration (1989) Regulations from the grant of a Remaining Relative Visa without determining whether the spouse of the principal applicant had in fact any overseas near relatives, but rather because he could not be satisfied she did not have any overseas near relatives as that term is defined in Reg. 9(3) of the Regulations.”

The further proceedings were then remitted to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and it was ordered that the applications for those orders proceed in this Court as if steps already taken in the proceeding had been taken in this Court.

BACKGROUND

On 26 January 1992 Va Sang Ly (“the principal applicant”) applied for migration to Australia in the preferential family category (Visa Class 104) at the Australian Embassy, Bangkok.  The application also included his spouse Thi Lien Trang (“the spouse applicant”) and a dependent male child.

The principal applicant was sponsored by his mother Cam Mui Chi (“the applicant”).  The basis of the application was that the principal applicant was a “remaining relative” as defined in the Migration Regulations (1989) (“the 1989 Regulations”).

The principal applicant was born on 15 February 1966.  He was twenty-five at the time of the application.  He is a citizen of Vietnam, and still lives in Vietnam.  On 1 February 1991, he married the spouse applicant, also a citizen of Vietnam, who was born on 1 September 1969.  Their son was born on 15 September 1991.

The principal applicant’s parents migrated to Australia in 1984 and the applicant became an Australian citizen on 23 July 1986.  There are two siblings both living in, and citizens of, Australia.  It is unnecessary to refer in any detail to the principal applicant’s family, as the issue on this application concerns really the spouse applicant and her family.

The spouse applicant’s parents were both born in 1950, and lived in Vietnam at least until 1975.  The spouse applicant has not seen them since 1975.  As one issue on this application appears to be what happened to them in 1975, it will be necessary to refer to those matters further in due course.  Similarly, one issue on this application appears to be whether the spouse applicant has any brothers or sisters, so it will also be necessary to refer in more detail to the material concerning that topic.  Finally, as it appears also to be an issue on this application whether since about 1975 the spouse applicant has an adoptive parent, it will also be necessary to refer to the material on that topic.

The reason those matters arise is because the critical issue on the application, decided adversely to the applicant, was whether the spouse applicant has an “overseas near relative” living in Vietnam at the time of the application and at the time of the hearing of the application.

THE LEGISLATION

It is common ground that, despite extensive amendment to the Act and despite amendment to the Migrations Regulations under the Act from time to time since the application was made, the Act as in force at the time of the application and the 1989 Regulations as in force at the time of the application, apply to this application.  However, subject to considerations arising from the fact that this matter was instituted in the High Court and has been remitted to this Court under the Judiciary Act, the right of review prescribed by Pt 8 of the Act, as introduced by the Migration Reform Act 1992, determines the available grounds of review by this Court of any decisions made with respect to the application after Pt 8 of the Act came into force:  Dai Zing Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583.  References to the Act and to the 1989 Regulations hereunder refer to the Act and to those Regulations as in force at the time of the application, other than when referring to Pt 8 of the Act.

Section 23 of the Act relevantly provided:

 

“(1)   Without limiting the generality of section 181, the regulations may make provision:

 

(a)        in relation to the granting and refusal of visas with respect to travel to Australia . . .

 

. . .

 

(2)   Regulations made under sub-section (1) may provide:

 

(a)        for different classes of visas; and

 

(b)        that, subject to section 28 and 28B a person is entitled to be granted a visa of a particular class if a person satisfies all the prescribed criteria in relation to that class.”

 

Section 24 obliged the Minister to grant a visa if it appeared to the Minister that an applicant for a visa was entitled to be granted a visa under the 1989 Regulations, and obliged the Minister to refuse to grant the visa if it appeared to the Minister that the applicant was not entitled to be granted a visa under the 1989 Regulations.  Regulation 10 of the 1989 Regulations provided relevantly that for the purposes of s 23(2) of the Act, the classes of visas are specified in Column 2 of Sch 2 to the 1989 Regulations.  Regulation 34A obliged an applicant for a visa to satisfy the prescribed criteria in relation to the relevant class of visa both at the time of the application and at the time at which the decision in relation to the application was made.  Regulation 41 effectively provided that a person is entitled to be granted a visa of a class specified if that person satisfied the prescribed criteria specified in Column 3 of Sch 2 to the 1989 Regulations in relation to the visa of that class.

Within Pt 3 of Sch 2 to the 1989 Regulations there was a class of visa identified as “preferential family”, and which identified the prescribed criteria relevantly as including “aged dependent relative, orphan relative, remaining relative, special need relative.”  There are other criteria which are not relevant for the purposes of this application.  It has been found in earlier decisions on the application that the principal applicant did not satisfy the criteria of “special need relative”, “orphan relative”, or “aged dependent relative” within Column 3 specifying the criteria for the preferential family class of visa.  No issue now arises in respect of those findings.  It is only under the “remaining relative” criterion that this matter comes to the Court.

Regulation 9 of the 1989 Regulations defined “remaining relative” in the following terms:

 

“(1)   An applicant for a visa or entry permit is a remaining relative for the purposes of these Regulations if the applicant has a relative who:

 

(a)        is:

 

(i)         a brother, sister or parent; or

 

(ii)        a step-relative, within 1 of those degrees of relationship;

 

of the applicant; and

 

 

(b)        is:

 

(i)         an Australian citizen; or

 

(ii)        an Australian permanent resident; 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 three overseas near relatives; or

 

(c)        the applicant is a child who:

 

(i)         has not turned 18;

 

(ii)        has been adopted by an Australian citizen or an Australian permanent resident (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-dependent child; or

 

(b)        a step-relative, within 1 of those degrees of relationship;

 

of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in sub-regulation (1).”

The term “parent” was defined to include an adoptive parent:  reg 2.  There was also a definition in reg 2 of the term “orphan” as follows:

 

“ ‘Orphan’ means a child where:

 

(a)     both parents are dead or their whereabouts are unknown; or

 

(b)     one parent is dead and the whereabouts of the other parent are unknown; or

 

(c)     one parent is dead and the other is permanently incapacitated and therefore incapable of caring for the child; or

 

(d)     both parents are alive but incapable of caring for the child;

 

and it is in the best interests of the child to settle with relatives or a guardian in Australia;”

and a definition of the term “Adopted” in reg 2A of the 1989 Regulations as follows:

 

“(1)   For the purposes of these Regulations, a person (in this regulation called “the adoptee”) is taken to have been adopted by a person or persons (in this regulation called “the adopter or adopters”) if, before the adoptee attained the age of 18 years, the adopter or adopters assumed a parental role in relation to the adoptee under:

 

(a)        formal adoption arrangements:

 

(i)         made in accordance with; or

 

(ii)        recognised under;

 

the law of a State or Territory of Australia relating to the adoption of children; or

 

(b)        formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter or adopters became so recognised; or

 

(c)        other arrangements entered into outside Australia that, under sub-regulation (2), are taken to be in the nature of adoption.

 

(2)     For the purposes of paragraph (1)(c) arrangements are taken to be in the nature of adoption if:

 

(a)        the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter or adopters; and

 

(b)        the child-parent relationship between the adoptee and the adopter or adopters is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangement; and

 

(c)        the Minister is satisfied that:

 

(i)         formal adoption of the kind referred to in paragraph (i)(b):

 

(A)        was not available under the law of the place where the arrangements were made; or

 

(B)        was not reasonably practicable in the circumstances; and

 

(ii)        the arrangements have not been contrived to circumvent Australian migration requirements.”

 

 

THE DECISIONS ON THE APPLICATION

As I have indicated, it is only in respect of the spouse applicant that the decision now under review is questioned.  Ultimately, the decision under review was decided adversely to the principal applicant only on the basis that he was disqualified by reason of reg 9(2) from being classed as a remaining relative, because the spouse applicant usually lived in the same country (Vietnam) as an overseas near relative.

The submissions identified three potential overseas near relatives of the spouse applicant namely:

1.         Her parents;

2.         A brother or sister, or brothers or sisters, or

3.         An adoptive parent.

On 7 May 1993 the respondent, by a delegate, refused the application.  A ground of that decision was that the spouse applicant:

 

“. . .  has her adoptive mother residing in Vietnam and is therefore disqualified from consideration as a remaining relative.”

An application for internal review of that decision was pursued.  On 7 July 1994 that decision was affirmed.  It is unclear precisely what relevant relationship then disqualified the spouse applicant because of her overseas near relatives.  It does not appear to be related to any adoptive parent.  That decision-maker said:

 

“Although Trang Thi Lien has claimed that her parents and siblings are missing, she has not provided any evidence of their death(s), nor has she provided any evidence that they are no longer resident in Vietnam.

 

Advice from the Attorney-General’s Department and from the Legal Opinion Section of the Department of Immigration and Ethnic Affairs, Canberra, indicates that when determining applications under the Regulations, it is not open to the administrative decision maker to find that a presumption of death has been established.  [Emphasis in decision]

 

In light of this advice, I am unable to presume that Trang Thi Lien’s near relatives are no longer alive.  Furthermore, there is not any evidence to indicate that they are not usually resident in Vietnam.

 

I note the comments made in the review submission relating to the relationship between Trang Thi Lien and Phu Thi Ta.  However, the primary decision made in this case has no bearing on the merit review of the case.

 

Merit review is based on a fresh consideration of all available facts.

 

As such I find that the applicant is disqualified from satisfying the prescribed criteria applicable to the “Remaining Relative” category as it has not been demonstrated that the applicant’s spouse does not usually reside in the same country, not being Australia, as an overseas near relative.”

Further application for review was made to the Tribunal.  On 12 August 1996, the Tribunal again affirmed the decision.  It is the Tribunal’s decision which is the subject of the present application.

The Tribunal, after referring to the history of the application and the relevant legislation, turned to consider the evidence.  It noted that the application described the spouse applicant’s parents as “missing”.  It referred to the evidence of the applicant that the spouse applicant did not have a mother or father nor any siblings.  It is apparent that that information was second-hand and not of any real probative significance.  It also referred to the evidence of Sang Ly, a brother of the principal applicant, who migrated to Australia shortly after the principal applicant’s marriage.  He did have some anecdotal evidence about the spouse applicant’s family circumstances, which he learnt in the few months prior to that marriage.  For what it was worth, he told the Tribunal (as it recorded) that on 30 April 1975, when the Communists took over, many people fled and the spouse applicant then last saw her parents.  He had no knowledge of whether she had brothers or sisters.  He also gave evidence that she lived with her neighbour Phu Thi Ta (“the neighbour”) until she got married, but that she had not been adopted by the neighbour but worked for her for payment.  The Tribunal then recorded in its reasons that Sang Ly had claimed that “my sister-in-law said she had siblings”.  That is not correct.  The transcript of the hearing before the Tribunal indicates that, at that point, the Tribunal asked Sang Ly to comment upon some information provided to the respondent’s officers on 18 January 1993 at which the principal applicant had said reportedly that the spouse applicant had siblings.  The transcript records Sang Ly then saying:

 

“May I explain about the difference between my sister and my brother-in-law giving evidence about . . .  the siblings of my sister-in-law.  When my sister-in-law was interviewed she said she had siblings, but my brother said he did not have any siblings.  I believe it was a - there was - it was a mistake, because he might think he himself have (sic) siblings in Australia.  He might be asked whether he had any siblings . . .”

It is apparent that the Tribunal has misunderstood the effect of his evidence.  He did not say that the spouse applicant had told him, nor did he claim that, “my sister-in-law said she had siblings.”  That passage refers to an interview of the spouse applicant of 18 January 1993 to which his attention was drawn.  It will be necessary to consider the significance of that misunderstanding of the evidence in due course.  There was no other oral evidence.

The Tribunal then referred only to two other pieces of information.  Firstly, it referred to a declaration from the neighbour that she “adopted (the spouse applicant) since she was 6 years of age”, that her parents also lived with the neighbour until 1975 and that the spouse applicant left her household when she married in 1990.  The other information to which the Tribunal referred was to the interviews by officers of the respondent of the principal applicant and the spouse applicant on 18 January 1993, conducted separately.  The interview with the principal applicant was recorded in the following terms:

 

“[The Principal Applicant] stated that first met spouse in a province of PHI QUOC where spouse lived with Aunt.  Stated that he never meet her parents.  Admitted that spouse does have siblings but they were missing, no other details known.”

It is recorded that the spouse applicant first said that she had no siblings, but

 

“. . . when told that her husband admitted that she does have sibling but they were missing, she then admitted that she knew that she was the eldest child, no details of siblings known.  Claimed they’re missing in 1975.  Claimed has been living with her aunt since she remembers (4 yrs old).  [Household register] provided has no date of registration to prove that when exactly did she actually moved-in and lived with her aunt.”

It is obvious that the Tribunal placed considerable weight on that interview.

Finally, the Tribunal referred to the absence of particular information.  It pointed out that the applicant’s representative at the Tribunal hearing had stated that she had asked for the spouse applicant’s “identity documents” in March 1995 and verbally on two other occasions.  That representative had “conceded” that the spouse applicant’s failure to produce relevant documents as requested at the primary decision and review stages damaged her credibility.  Later in its reasons, the Tribunal noted that requests made by letters of 19 November 1992 and 19 March 1993 for a further “So Yeu Ly Lich (Household Register)” for the spouse applicant to include details of her parents and siblings to be issued by a Police Authority, and so seeking details “of her family unit prior to her parents departure” had not been provided.  There was no information as to whether such a document existed, or whether it was capable of being obtained, presumably in relation to events of great turmoil in 1975.

The Tribunal did not refer to other material.

It then said by way of conclusion:

 

 

“On balance therefore I am unable to make a positive finding that she has no ‘overseas near relatives.’  Hence the Principal’s application must fail as he is unable to satisfy Regulation (9)(i) (sic) of the Regulations.  I also find that the Principal is not a ‘special need relative,’ ‘an orphan relative’ and an ‘aged dependent relative’ within the meaning of the Regulations.”

 

 

THE CONTENTIONS OF THE APPLICANT

The applicant’s contentions reflected the grounds upon which Dawson J made the order referred to above.  Ground (b) was treated as permitting an attack upon the Tribunal’s reasons for failing to provide a review in accordance with s 353 of the Act, in particular by failing to consider all the material available to the Tribunal.  Grounds (c) and (d) were treated as permitting an alternative attack upon the Tribunal’s reasons by failing to consider the nature and purpose of regs 34A(1) and 41(1) as well as s 24(3) of the Act.

In the course of the hearing, it also emerged that criticism was made of the Tribunal’s reasons, in particular its failure to comply with s 368 of the Act.  The applicant sought leave to amend the grounds of the order nisi by adding the following ground as ground 3(e):

 

“The second respondent failed to determine the application for review in IRT application V94/01060 according to law and the decision is thereby beyond its jurisdiction because the second respondent failed to give reasons for its decision as required by s 368(1) of the Migration Act 1958”.

It will be necessary to consider whether the Court has power to permit such an amendment in the present circumstances.

THE ADEQUACY OF THE REASONS OF THE TRIBUNAL

Under s 135 of the Act (following the Migration Reform Act 1992, s 166E and now s 368), the Tribunal when making a decision is obliged to provide a written statement setting out its decision, the reasons for its decision, the findings on any material questions of fact, and reference to the evidence or other material on which the findings of fact were based.

In my view it is unclear what were the reasons for the decision of the Tribunal or what were the findings on material questions of fact.  It is plain enough that the focus of the decision was whether the spouse applicant had overseas near relatives in Vietnam, but what is not clear is whether the applicant was disqualified under reg 9(2) of the 1989 Regulations because the spouse applicant had a parent or parents, or an adoptive parent (the neighbour), or a brother or sister, or brothers or sisters.  Even if it is correct to express its reasons in terms that the Tribunal was not satisfied that the spouse applicant had no overseas near relatives, it is unclear whether that lack of satisfaction related to one or more or all of those relationships.

The rationale underlying a statutory duty to give reasons was expressed by Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 where his Honour considered what might be the response of an unsuccessful party:

 

“Even though I may not agree with it, I now understand why the decision went against me.  I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”

The Full Court in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 adopted those observations at 444.

More recently, Sackville J (with whom Davies and Beazley JJ agreed) in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-416 reviewed and reaffirmed those considerations in the context of the Act.  I accept that the Court should not be concerned with looseness of language, or unhappy phraseology, and should not construe reasons for decision “minutely and finely with an eye attuned to the perception of error”:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ and Toohey, McHugh and Gummow JJ at 272.  Sometimes such considerations will lead to the conclusion that the reasons of an administrative decision-maker are adequate:  see eg. the differing views of the Full Court on such an issue in Baxter Health Care Pty Ltd v Comptroller General of Customs (1997) 72 FCR 467.

Here, there is a range of evidence, to which I shall shortly refer, identifying material relevant to each of those three issues.  It is unclear whether the Tribunal expressed itself as “unable to make a positive finding” because of one or other, or more than one, or all of those three considerations.  In my view that is a significant failure on the part of the Tribunal.  For example, if ultimately its decision was that the spouse applicant had an overseas near relative or that the Tribunal was not satisfied that the spouse applicant did not have an overseas near relative because she had been or may have been adopted and so had or may have had an adopted parent in Vietnam, that would be one thing upon which the principal applicant could identify the findings and the reasons with a view to determining whether to challenge the decision.  Similar comments could be made if the ground of the decision was upon one or more of the other possible findings.  It is simply not clear for what reason the Tribunal has reached its decision nor what findings on the material questions of fact relating to that reason have been made.  In my view it is insufficient for the Tribunal to have made the blanket observation which it did, given that it has in the immediately preceding section of its reasons referred, albeit very briefly and selectively, to material concerning each of those three matters or to the absence of material concerning each of those three matters.  It is my conclusion, therefore, that the reasons are inadequate.

In discussing the other contentions of the applicant below, there appear further observations which, in my view, reinforce the conclusion that the Tribunal’s reasons for its decision fail to comply with s 368 of the Act.

One consequence of not knowing the reason or reasons for the Tribunal reaching its decision is that, if the principal applicant can establish reviewable error in relation to one of those three matters, it would be unclear whether the proper order is for the Court to set aside the decision and to remit the matter for reconsideration, simply because the Court does not know whether the decision in fact was founded upon that matter.  For reasons which appear below, in my view the Tribunal has fallen into error in its consideration of the material before it, at least in respect of one of the three possible bases for its decision.  Those observations illustrate the force of the observations of Foster J in Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 485, that

 

“Unless the courts insist that reasons be expressed adequately enough to enable the basis of the reasoning to be inferred, there is a risk that errors will be disguised, and the legislative policy which underlies the obligation to give reasons will be thwarted.”

In my view, therefore, the Tribunal has fallen into error by failing to provide adequate reasons for its decision, and to record its findings on material questions of fact in relation to it.

As noted above, one difficulty which then arises is that this ground of review emerged only during the hearing.  It is not one of the grounds upon which the order for review was made by the High Court on 18 June 1997.  The applicant sought leave to amend the grounds of review to assert that the Tribunal had failed to comply with s 368 of the Act.  The respondent opposed that application, on the ground that this Court had no power to amend the order of the High Court in that way.  I refer to that question below.

THE MATERIAL BEFORE THE TRIBUNAL

The presentation to the Court of the material before the Tribunal which was relevant to the application was in the usual way, namely by an agreed case book.  In addition, the transcript of the Tribunal’s hearing was provided to the Court.  The case book records the material on the Tribunal’s file in a sequential way, the consequence being that enclosures with earlier material are also repeated when apparently enclosed with later material and sometimes with the translations not proximate to the original document.  As I had material presented in that way which did not fully identify the material before the Tribunal, I sought further clarification from the parties on certain documents in the case book.  As a result, the documentary material before the Tribunal, in its chronological sequence, and referring only to that containing apparently significant information to one of the three relationships of the spouse applicant under review, and without referring to duplicated or largely duplicated material, can be identified.  I do not repeat the information in the documents identified where it is already referred to above as part of the Tribunal’s reasons, but otherwise briefly identify the effect of those documents.  The material is as follows:

Date	Item
25 November 1991	Application.  There is no reference to siblings, nor to an adoptive parent.
3 June 1992	Two statements of the spouse applicant, with verifying certifications of local officials dated 4 June 1992, contained within “Application for Verification of Employment Status Prior to Marriage” and “Application for Verification of Loss of Contact with Parents and Siblings”.  She states that “Since prior to 1975, I have lost contact with my parents and brothers” and have relied on the sympathy of relatives and neighbours.  After 1975, she started to work for the neighbour.
8 December 1992	So Yeu Ly Lich document (“SYLL”) entitled Resume of Personal Background, also certified as correct by local officials.  It is a pro forma document completed by the spouse applicant.  She says she had ‘lost contact’ with her parents, and she left blank the section referring to siblings.  There is no reference to an adoptive parent.  There are two apparently original versions of this document both issued on the same date, only one of which has been translated but again there is nothing to indicate that there is any significant difference in the documents.
15 December 1992	Declaration of neighbour, certified as correct by local officials including one who certified the statement of the spouse applicant dated 3 June 1992, and including the Head of the Cha Duong police who also certified the document dated 28 January 1993 referred to below.  There is no reference to siblings.  This is one of the two documents expressly referred to by the Tribunal.
18 January 1993	Handwritten notes of officer of respondent (at Embassy) of interviews with the principal applicant and the spouse applicant.  This is the other of the two documents expressly referred to by the Tribunal.
28 January 1993	Certificate of People’s Committee of Cha Duong, and Head of Police of Cha Duong, that the spouse applicant lost contact with her parents since 1975 and no information about them has since been received, and that she then had been “living with” the neighbour.
12 April 1993	SYLL, untranslated.
24 June 1993 and 5 November 1993	Application for internal review.  It asserted, by solicitor’s letter, that the spouse applicant lost her parents in 1975, and then was taken in by the neighbour for whom she worked performing domestic duties for keep and for little wages until her marriage in 1990.  She believes her parents were killed in 1975.  The relationship with the neighbour is said to be a “foster” parent relationship, and that the word “adoption” had been used only loosely.  No reference is made to siblings.
21 July 1994	Application for review by Tribunal.
18 December 1995	Transcript of hearing before Tribunal including the evidence of the applicant and of Sang Ly, discussion between Tribunal and interpreter, and discussion between Tribunal and principal applicant’s representative.
19 December 1995	Letter from solicitors for principal applicant.  Following the hearing, further inquiries had been made.  It conveyed that the spouse applicant to the best of her knowledge had no siblings, and that she had described herself as the eldest child (interview, 18 January 1993) as she was the first born child and had separated from her parents at an early age.  She was only 6 in 1975.  It also sought to explain that the concession about failure to provide documents referred to by the Tribunal, noted above, was made through a misunderstanding of instructions.
20 December 1995	Declaration of neighbour verified by local officials.  The neighbour explains how she came to care for the spouse applicant, and confirms that after leaving school the spouse applicant worked for her as a home helper for wages.  She does not suggest an adoptive relationship.  That declaration is set out in full below.
20 December 1995	SYLL.  It asserts the parents of the spouse applicant had been missing since 30 April 1975.  It makes no reference to siblings or to the neighbour.

As the Tribunal also placed weight on the failure of the applicant to prove certain information as requested, I also note the communications on that topic.

On 7 May 1992 the respondent sought certain information from the applicant including:

 

“3.     Certify true copy of house registration of Ly Va Sang and house registration of Trang Thi Lien before her marriage

 

4.     Legal document stating that both parents of Trang Thi Lien was missing.”

There is a handwritten letter from the applicant dated 15 October 1992 to the respondent suggesting that those documents were sent on 22 June 1992.  Apparently they were not received.  A further copy of them was sent.  It is unclear whether all the material requested was provided.  By letter of 19 November 1992, the respondent sought the following documents:

 

“[x]  Refer to our request of 7/5/92 for certify true copy of your household registration of Tran Thi Lien before she married in 1991.  We are still awaiting for the document in order to process further.

 

 

[x]  So Yeu Ly Lich of Trang Thi Lien issued by Police Office.  All details regarding family members, spouse, children, parents and siblings must be declared.  All question must be stated not just cross-out with no declaration.  (Noted that SYLL issued by People’s committee is not acceptable)”.

There was a further request for information made on 3 December 1992, but it did not relate to the spouse applicant.  On 16 December 1992, the applicant responded asserting that the relevant information requested was enclosed, together with:

 

 

“a copy of the document concerning the applicant’s spouse’s loss of contact with her family”.

It is unclear from the case book what was then provided.  One might speculate by reference to the dates of documents referred to above.

The respondent, through the Australian Embassy, on 19 March 1993 wrote to the principal applicant requesting an SYLL for the spouse applicant issued by the police authority with details of her parents and siblings, and a certified copy of the original Vietnamese household certificate for the spouse applicant showing the date she moved in to the household.  There is no record of a response to that request, save that the untranslated SYLL dated 12 April 1993 is on the Tribunal’s file.  It is unclear what attention was given to that document.  It is also unclear whether that document was overlooked when the representative of the applicant at the hearing asserted that she had asked her clients to obtain certain documents and they had not been provided  The following exchange occurred:

 

 

 

 

“Chairman:         What makes you think they don’t want to provide them?

 

Ms Wood:          Well, I’m not entirely sure.

 

Chairman:         These damage the credibility, doesn’t it?

 

Ms Wood:          It does.  And I have explained that to them.”

As the submissions for the applicant make no point about that document, I assume that, despite its date, it was not provided in response to a request for information, or for some reason does not meet the request for such a document.

Later, shortly before the completion of the hearing, the Tribunal observed to the applicant’s representative, on the topic of how the Tribunal should attempt to resolve whether the spouse applicant had siblings,

 

“Well, I think you have got a very difficult task.  There seems to be a persistent refusal to accede to the advised request from authorities, and the request from the representative trying to mount a case on her behalf . . .  I think if you have actually had communication, and the point has been explained by the Vietnamese language, it is rather damaging to their credibility that they don’t want to pursue this matter and then I would have to give that some weight.   . . .   it says something about the credibility of the person.  If these people are in fact alive in Vietnam, then she may or may not have had contact with them, where initially she said she was a sole child, then she said she’s the eldest child.  . . .”

 

 

There was no question put to the applicant, or to Ly Sang at the hearing on the topic.

The only documents explicitly referred to by the Tribunal in its reasons appear to be the application dated 25 November 1991, the declaration by the neighbour dated 15 December 1992, and the handwritten notes of interview of 18 January 1993.  The use of the word “adoption” in that declaration was obviously significant to the Tribunal.  It does not note the use of the word “aunt” by the principal applicant and by the spouse applicant in the interview notes.

Significantly, in my view, during the course of the hearing before the Tribunal the difference between adoption and fostering came up.  There was a discussion between the Tribunal and the interpreter, prompted by the Tribunal, on that topic.  The interpreter told the Tribunal that in Vietnamese there was no equivalent word for “foster”, and the same word was used for either fostering or adoption.  The Tribunal, having elicited that information, seems to have paid no regard to it.  Indeed, the Tribunal then went further and sought to explore with the interpreter what might constitute “adoption for the purposes of creating a legal entitlement to getting your parents estate - for example - or entitlement to be accepted for sponsorship purposes overseas”.  He was told, contrary to his suggestion, that there was a need to go through a Court rather than simply obtain the approval of the local administrative committee or People’s Committee.  He then asked whether that was the position in 1975 or thereabouts.  He was told by the interpreter that the interpreter had left Vietnam in 1977, and up to then everything was handled by the law courts although there were no courts operating at that time.  The Tribunal then said:

 

“So, the point I want to make is that at that stage approval by the local authorities would have meant a defacto legal adoption.”

 

He was told that was correct, but then the interpreter said that she was not competent to express any opinion as to whether, around that time, legal adoption only required the approval of the local People’s Committee.  Despite that, the Tribunal persisted with questions on that topic to the interpreter and got the observation from the interpreter (who said that she was not qualified to provide it) that approval from the local People’s Committee “could be treated as a legal document” relating to adoption.  He then observed that:

 

“the Police Chief is mindful that there is an adoptive relationship.  The People’s committee has approved of adopted relationships.  I will give that more consideration by having a look at all the evidence.”

That is not correct.  I have noted the terms of the certifications by the local police chief, in particular that in one document it was described in translation as “adopted”, and in another as “living with”.  The information from the interpreter was that translation from Vietnamese could not accommodate the differences between fostering and adoption.  There is no material that the People’s Committee has approved of an adoptive relationship in relation to the spouse applicant, but simply certified the accuracy of the description given by the neighbour that she had “adopted” [or fostered] the spouse applicant.  The neighbour’s declaration of 20 December 1995 does not describe the relationship as an adoptive one.  It is in the following terms:

 

“In 1975 I lived near a family that had a small girl, about 3 or 4 years old.  The girl often came to my place to play.  One day in 1975 her parents brought her to my place, and asked me to look after the girl at my place for a few days.  They also told me that the girl’s name was Trang Thi Lien and that she was born in 1969 in Duong dong hospital.  Her father was Mr. Tran En, born in 1950, and her mother, Mrs. Pham Thi Muc, born in 1950.  They said to me that after the Liberation, if they were still alive, they would come back to receive their child and make generous repayment to my family.  At the time my family was in comfortable conditions.  We did not move to another region, but stayed.  After our country was liberated and regained independence, the couple did not come back to receive their child.  I allowed the girl to go to school and raised her until she had grown up.  Then she realised she had no parents, and that she was not related to us.  She seemed to feel a sort of complex of inferiority, and asked me to let her work as a home helper and pay her.  I agreed, and she worked for us until she got married, and started living with her husband.  I have not often seen her since.  Not being blood relations, I do not concern myself with her.”

 

CONSIDERATION OF CONTENTIONS

Despite the Tribunal having explored with the interpreter in the manner explained above the procedure for formal adoption arrangements in Vietnam in about 1975, in my view there was no material upon which it could be established that there had been a formal adoption of the spouse applicant by the neighbour.  I do not think it was open to the Tribunal on the material before it to have reached such a conclusion.  Had it done so, such a decision would in my view have given rise to a ground of review under s 476(1)(g) of the Act.  That is notwithstanding the submission of the respondent that the declaration of the neighbour of 15 December 1992 amounted to evidence of a legal adoption.

That declaration, as translated, must be considered in the light of the material before the Tribunal that there is no discrete Vietnamese word for ‘foster’, and that the same word in Vietnamese might mean adoption or fostering.  In that context, in my view, it could not be evidence of “formal adoption arrangements made in accordance with Vietnamese law”.  The interpreter could not be taken to have provided such evidence.  Nor, in my view, could it be evidence that the circumstances giving rise to the relationship between the spouse applicant and the neighbour led to the neighbour being “recognised by law” as the parent of the spouse applicant.  The certifications to which the respondent referred were of the facts in the declaration itself, rather than any certification of the attitude of Vietnamese law to the relationship.  The independent certification of the People’s Committee and of the Head of Police of Cha Duong dated 28 January 1993 did not refer to adoption, or to a parent/child relationship, but described the spouse applicant as living with the neighbour.

The respondent did not separately contend that the Tribunal did reach, or could have reached, a conclusion as to adoption under reg 2A(1)(c) and (2) of the 1989 Regulations.  In my view, it was appropriate not to do so.  There was no material before me to suggest that the Tribunal could have been satisfied of all the matters in reg 2A(1)(c) and (2).  Nor was it suggested that reg 2A(1)(a) could operate.  There remains to consider reg 2A(1)(b).

It is of course correct that the Tribunal need not have referred expressly to reg 2A to reach its conclusion, nor to have referred to each significant item of material evidence on a topic material to its conclusion, in expressing its reasons for its decision.  The Court will not necessarily infer that the absence of reference to material evidence is itself evidence that consideration was not given to that material evidence.  The absence of reference in the Tribunal’s reasons to reg 2A does not of itself satisfy me that the Tribunal failed to address the matter of “adoption” in accordance with the 1989 Regulations, but consideration of reg 2A, as noted above, does give rise to significant and specific matters to be addressed.  The Tribunal’s reasons do not explicitly address them.  Moreover, its reference to relevant material fails to recognise the existence of, or terms of, the Certificate dated 28 January 1993, or of the declaration of the neighbour dated 20 December 1995, or to address the matter of translation concerning ‘adoption’ or ‘fostering’.  As it expressly referred to the record of interview of 18 January 1993, I assume it noted the principal applicant’s and the spouse applicant’s description of the neighbour as “aunt” even though it did not explicitly do so.  It is not a matter of accepting, even implicitly, the evidence of one person over that of another.  The two declarations of the neighbour should be taken together unless reasons exist not to do so.  The reference in the reasons only to the first declaration of the neighbour, without explanation, does persuade me that in this instance the Tribunal has failed to have regard to the later declaration of the neighbour.  Whether the Tribunal recognised the issue as to whether the relationship was a foster relationship, first raised at least by the letter of 5 November 1993 in support of the application for internal review, is itself not clear.  Its reasons do not indicate that it did so, or that it considered the relevant material in that context, or why then it accepted the first declaration of the neighbour as translated in the face of the neighbour’s later declaration, the certification by officials of 28 January 1993, or the interpreter’s observations about the translation difficulty in relation to the words ‘adoption’ and ‘fostering’.

In my view, for the reasons given, the Tribunal did not apply the meaning of ‘adoption’ in reg 2A(1)(b).  It has fallen into error in that regard.  One hypothesis from its reasons is that it was by reason of the spouse applicant’s adoption that she had an overseas near relative living in Vietnam so that the principal applicant was disqualified under reg 9(2) from meeting the criteria for the visa sought.  Consequently, the error should result in the application for review being successful and the matter being remitted to the Tribunal for reconsideration.

The second of the applicant’s contentions concerns the Tribunal’s asserted failure to address the material before it.  It is put that the Tribunal failed to comply with s 353 of the Act by placing emphasis on the absence of material which it considered the applicant should have produced, especially in response to the specific requests for information.

In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, the Full Court has decided that s 420 of the Act imposes upon the Refugee Review Tribunal procedures to be observed in connection with the making of a decision, the departure from which provides a ground of review under s 476(1)(a):  see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505.  Section 353 of the Act, which applies to the Tribunal, is in identical terms to s 420 of the Act as it applies to the Refugee Review Tribunal.  Accordingly, I should apply that decision to the operation of s 353 of the Act.

The precise content of the obligation to accord “substantial justice” will necessarily have to be addressed on a case by case basis:  Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275.  A decision that is so unreasonable that the decision could not have been made by a reasonable person will probably indicate that s 353 or s 420 has not been satisfied:  Eshetu (above), per Davies J at 305-6 and per Burchett J at 317, and Sun Zhan Qui (above) per Wilcox J at 548.  In Sun Zhan Qui (above), Wilcox J at 548-549 (with whom Burchett J at 554 agreed on these points) said that the failure by a Tribunal under the Act to take into account significant relevant considerations may infringe s 420 (and inferentially, if applicable, s 353).  On the latter point, Wilcox J referred to the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 as follows:

 

“. . . a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.”

That conclusion was reached notwithstanding the provisions of s 476(2)(b) of the Act.

Whatever the scope of the obligation under s 353 of the Act, in any event in my view the Tribunal has specific procedural obligations under the Act:  s 358 entitles the applicant for review to present material to it, and inferentially at least obliges it to consider that material; s 360(1)(a) obliges the Tribunal to give the applicant the opportunity to appear and to give evidence; s 361, and in respect of certain decisions s 362, oblige the Tribunal to give the applicant the opportunity to request the Tribunal to obtain other evidence, and to consider such a request.  It is given complementary powers to procure such evidence.  Section 352 also prescribes procedures to ensure that the Tribunal receives from the respondent the materials held by the respondent’s department relevant to the review of the decision.  The Tribunal is otherwise charged with the proper conduct of the review application.  It is clear that, whilst the Tribunal may investigate a decision under review much within its discretion, it must have regard to the material before it.  It would make no sense if it were entitled to ignore relevant material conveyed to it under s 352 of the Act, or relevant material adduced before it as of right by the applicant or otherwise received by it.  Of course, the weight if any to be given to such material by the Tribunal is a matter for the Tribunal.  To regard a piece of evidence as of no weight may be entirely open to the Tribunal, and will not per se indicate error on its part.  There will be cases, no doubt rare, where the evidence is of such a nature that a decision of the Tribunal will nevertheless be the product of a failure on its part to consider the material before it “rationally”:  see the discussion on this topic of Finkelstein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 399-402.  The obligation to address the material before it in a rational way necessarily flows, in my view, from the processes prescribed under the Act for ensuring that it has relevant material before it.  It is therefore either encompassed within the obligation of s 353, or implicit, that procedurally it must rationally address that material.  I respectfully agree with the reasons of Finkelstein J in Epeabaka referred to, including (as his Honour points out at 402) that a failure to so address that material would not in any event be excluded from review under s 476(1)(a) by reason of s 476(2)(b) of the Act.

I have referred above to the material before the Tribunal as to the spouse applicant’s relationship with the neighbour.  But for the use of the word “adoption” in the translation of the neighbour’s declaration of 15 December 1992, there is no material which could satisfy the Tribunal that, even under reg 2A(1)(c), the spouse applicant had an adoptive parent in Vietnam.  The respondent did not, on this application contend that the Tribunal’s conclusion was sustainable under reg 2A(1)(c).  The contention was that the relevant relationship was available to be found under reg 2A(1)(b).  I have concluded above that no material to support that conclusion was available.  The Tribunal was not entitled to treat that declaration as evidence on that topic for the reasons given.  The additional information requested, even if available and not provided, did not touch that topic.

In my view, there was no material from which the Tribunal could rationally conclude that the spouse applicant’s parents were alive and in Vietnam.  She lost contact with them in April 1975, when she was six years of age.  There is no evidence to suggest they survived and continue to live in Vietnam.  Every piece of evidence confirms that they have not been seen since 1975.  There is no material to suggest that a household register or an SYLL as at 1975, or at any time before the spouse applicant commenced to live with the neighbour, is or could be available.  The spouse applicant’s places of accommodation since 1975 were documented, and confirmed by the neighbour and the independent certifications of 28 January 1993.  A 1975 or earlier document disclosing that she then lived with her parents would not enlighten the relevant enquiry.  Its absence, even if such a document were capable of being provided, could not in my view enable the Tribunal to conclude that the spouse applicant still had parents in Vietnam.  Of course, the Tribunal may not have approached the matter in that way.  I simply do not know, as its reasons do not disclose what view it took of the material which all pointed one way on that topic, or what factors persuaded it to the conclusion (if it reached such a conclusion) that despite that material the spouse applicant still had or may have a parent or parents living in Vietnam.  On the basis of a reviewable error under s 476(1)(a) in failing to rationally address the material before it, as well as for failing to provide reasons in accordance with s 358, in relation to this possible factual foundation for its conclusion, in my view this application should also succeed.

It is unclear whether the Tribunal also was not satisfied that the spouse applicant had no siblings living in Vietnam.  On this matter, there is some material to which it referred which might suggest that there were siblings in Vietnam despite the Tribunal’s error in treating the oral evidence of Sang Ly as being affirmative evidence on that score.  What seems to be clear is that the spouse applicant has no older siblings.  But in her statement of 3 June 1992 she has made reference to “brothers”, and in the interview notes of 18 January 1993 again there is some reference to siblings by the principal applicant, and by the spouse applicant to her being the “eldest” child.  That material, as later explained, may be equivocal; that is the complexion which the applicant through the solicitor’s letter of 19 December 1995 sought to put on it.  There is also no evidence from the neighbour or other sources to suggest that she has had any contact with any younger brothers or sisters since 1975.  On this topic, the requests for further documentation may have elicited some relevant information.  The failure of the applicant to present such materials, if they were available, may enable the Tribunal more readily to accept certain other evidence or more readily to draw inferences from such evidence.  I have already observed that, despite their timing, the applicant did not contend that the untranslated SYLL of 12 April 1993 was responsive to the request for information.  I do not know what, if anything, the Tribunal made of it.  The SYLL of 20 December 1995 sent to the Tribunal on 30 January 1996 is not referred to in its reasons.  I do not know if it was accepted as being responsive to the requests for information, but insufficient, or was regarded as not responsive to those requests.  In written submissions, the respondent contended that it did not relate to a time prior “to her parents’ departure” and was not signed by the police, so that it did not respond to the request.  I do not know if that was the view the Tribunal took.  The Tribunal has not indicated whether it had other information that a 1975 SYLL or household register was, or should have been, procurable.  It has not indicated what view it took of the material tending to suggest that, at least since 1975, the spouse applicant had not had contact with any siblings.  It has not indicated.  Its reasons do not show whether it was on this aspect that it regarded the spouse applicant as having overseas near relatives, or more accurately as not being satisfied that she has no overseas near relatives.  On this aspect, I am not persuaded that the Tribunal fell into error, other than in failing to provide reasons in accordance with s 358 of the Act.  It is however that very failure which makes it difficult to fairly address the applicant’s contention.  As I have determined, in respect of other matters, that the application should succeed, it is not necessary to further consider the appropriate remedy on this limited aspect.  Even if I were not to allow the amendment of the orders nisi, it would be a surprising outcome that the failure to give reasons would result in the decision being unable properly to be reviewed where reasons properly given would reveal whether or not the Tribunal fell into the error complained of.

The final complaint is based upon the Tribunal’s alleged error in requiring the applicant to satisfy it that the spouse applicant has no overseas near relatives.  As the respondent contends, the starting point is s 24(3) which provides:

 

“Where it appears to the Minister that an applicant for a visa other than an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned, then:

 

(a)   [after the applicant has provided current information]

(b)   if and only if the Minister becomes satisfied that there has been no material change in the applicant’s circumstances since the application was made, the Minister shall, subject to section 28, grant the visa.”

I was also referred to reg 34A(1), (1A) and (2) of the 1989 Regulations.  Regulations 34A(1) and (2) provide in the circumstances that an applicant for a visa “must satisfy” the prescribed criteria in relation to the relevant class of visa both as at the time of the application and at the time the decision is made in relation to the application.  In my view that regulation does not impose any particular legal onus either upon a visa applicant or upon the respondent.  It is no more than a provision which identifies the times at which the visa applicant must meet the criteria prescribed.  The expression “must satisfy” in context means simply “must meet” as a matter of fact, rather than to impose any onus of proof.  Similarly, in my view, reg 41(1) to which I was also referred, does no more than assert the entitlement of a visa applicant to a visa of a class sought if that person satisfies, ie. meets as a matter of fact, the relevant prescribed criteria.  Neither of those regulations are directed specifically to the definition of “overseas near relative” in reg 9.  It would have been easy for the regulations, if it were so intended, to impose a legal burden of proof of certain matters upon a visa applicant, but those regulations do not explicitly set out to do so.  Of course, as a matter of practicality and common sense, a visa applicant should adduce material to the Tribunal; I do not intend to suggest that the Tribunal must itself pursue enquiries where it is appropriate for the parties themselves to do so:  eg. the observations of Davies J in Dharam Raj v Minister for Immigration and Ethnic Affairs (18 July 1996, unreported); Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284.

However, in my view, the Tribunal did not purport to impose a legal onus of proof upon the applicant.  Under reg 9(2), if the spouse applicant had an overseas near relative in Vietnam, the principal applicant was disqualified from being a remaining relative.  The Tribunal expressed itself as being unable to “make a positive finding” that the spouse applicant had no such overseas near relatives.  It did not thereby assert that the applicant, or the principal applicant, had a legal onus of proving that the principal applicant was not disqualified under reg 9(2).  The Tribunal, upon its review, stands in the place of the respondent:  s 349.  Upon the material before it, it had to reach a conclusion as to whether the principal applicant was a remaining relative under reg 9, which meant in turn that it had to reach a conclusion as to whether the spouse applicant had any overseas near relatives in Vietnam.  It expressed itself as being unable, on the material before it, to reach a conclusion favourable to the principal applicant on that latter question.  In effect, its reasons indicate that it did not appear to the Tribunal under s 24(3) that the principal applicant was entitled to be granted the visa sought because it did not appear to the Tribunal that the principal applicant was a remaining relative.  It is apparent that its conclusion was not because the principal applicant was disqualified because it had positively concluded that the spouse applicant had an overseas near relative in Vietnam.  It was because it did not know whether the spouse applicant had an overseas near relative in Vietnam.  That is not a matter of the wrongful imposition of an onus of proof, but a statement of its inability to reach a conclusion of fact on a matter which it was required to address.  Thus, I do not find error by the imposition by the Tribunal of an onus of proof upon the applicant:  it is clear that the concept of onus of proof is not appropriate to administrative inquiries:  see eg. McDonald v Director-General of Social Security (1984) 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.

What is the consequence of the Tribunal being of that mind?  Section 24(3) provided that where the Minister was satisfied that the criteria for a visa were met, then subject to certain matters the visa must be granted.  Section 24(7) provided that where it appeared to the Minister that the applicant was not entitled to be granted the visa, then it was necessary that the visa be refused.  Section 24 does not address what the Minister should do where the Minister was not of the view that the applicant was not entitled to the visa applied for, but was not satisfied that the visa applicant was entitled to the visa sought.

What then of the Tribunal’s contention that it was “unable to make a positive finding” that a disqualifying factor under reg 9(2) did not exist, ie. that the spouse applicant had no overseas near relatives. The respondent contends that I should construe the Tribunal’s conclusion as amounting to a finding that it did appear to the Tribunal that the principal applicant was not entitled to the visa in terms approximating s 24(7) of the Act.  I do not think that is what it said.  Nor do I accept 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.

In McDonald (above, at 358), Woodward J addressed the problem in the following way:

 

“If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.  If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled.  If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.”

His Honour was not, of course, specifically addressing reg 9.  In accordance with that approach, it is necessary to address the nature of the decision confronting the Tribunal in the present case.  That is also consistent with the conclusion of Jenkinson J in McDonald at 369:

 

“There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal.  Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist.  (The same may be said of a past or a future circumstance.)  The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision.  In this case the AAT would determine whether the Social Security Act 1947 (Cth), upon its proper construction, required that the applicant’s pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work.  In the former case the Tribunal’s lack of persuasion that permanent incapacity did not exist would preclude cancellation.  In the latter case the Tribunal’s lack of persuasion that permanent incapacity did exist would result in cancellation.  An application of the same principles by a court in resolution of the same dilemma is to be found in Maher-Smith v. Gaw [1969] V.R. 371.  In a court the principles are expressed in terms of the onus or burden of proof.  When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed.”

An illustration of the operation of such principles is provided in Lodkowski v Comcare (Goldberg J, unreported, 5 March 1998), where the administrative decision-maker had said that it was not satisfied that the applicant continued to suffer a compensable injury after a certain date.  As the legislation prescribed that state of fact as necessary to establish the entitlement, the application failed.

Thus it is necessary to look more carefully at the way reg 9 is expressed.  The Tribunal has taken the view that the inability to be satisfied of the absence of any overseas near relatives is, on the proper construction of reg 9, something which then leads to the view that the Tribunal must refuse to grant the visa sought.  If that is correct, then there is nothing in the point in favour of the applicant.  If it is not correct, an error of law will be shown to exist which will itself provide a ground for review of the decision under s 476(1)(e).

This case is not like the circumstances confronting Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275.  In that case, Foster J concluded that the Refugee Review Tribunal’s failure to decide matters essential for the proper disposition of the visa application constituted a failure to accord “substantial justice” as required by s 420 of the Act, and therefore was reviewable under s 476(1)(a).  Unlike the present, the Tribunal there had simply failed to address the relevant material to consider what findings it would make on two particular and relevant topics to the visa applicant’s status.

In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the court (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) explained the approach to the construction of legislation containing provisos as follows:

 

“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 it 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:  . . .”

In relation to the proper approach to reg 9(2), I first return to s 24(3) of the Act.  It relevantly requires that it appear to the respondent, and on review to the Tribunal, that the principal applicant is, under reg 9, entitled to be granted the visa sought.  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.

Accordingly, on this aspect of the contentions, I do not find that the applicant has made out the ground of review asserted.

AMENDMENT OF THE ORDER NISI

There is no doubt that the High Court could amend the order nisi granted on 18 June 1997:  High Court Rules, O 55 r 11.  Upon remitter, under s 44(1) and (2A) of the Judiciary Act, the applicant contends that this Court may amend the grounds of the order nisi in the manner sought.  Order 55 r 11 empowers the High Court to amend the order nisi as “necessary for the advancement of justice”.  It would be incongruous and ironic if, upon remitter, this Court could not do likewise even if it regarded such amendment as necessary for the advancement of justice.  Nevertheless, it is the contention of the respondent that it is unable to do so.

Section 44(1) of the Judiciary Act directs that, upon remitter to this Court and subject to any directions of the High Court, further proceedings in the remitted matter shall be as directed by this Court.  It is clear that such remitter is not to enhance or diminish the rights of one or other of the parties to the litigation:  Robinson v Shirley (1982) 149 CLR 132 per Brennan J at 136.  It is to facilitate the course of the litigation.

Once this Court has jurisdiction to entertain the matter by reason of the remitter, in my view this Court may then apply its rules to matters of practice and procedure as appropriate.  It may make Rules of Court dealing with those matters;  s 59, Federal Court of Australia Act 1976 (Cth).  Order 51A of the Federal Court Rules expressly provides that this Court may give any directions necessary for the further conduct of the remitted matter having regard to the provisions of O 10 of the Federal Court Rules.  Order 10 r 1(2)(ix) empowers the Court to grant amendments.

It is contended, however, that the jurisdiction of this Court effected by the remitter is limited to jurisdiction to hear and determine precisely the matter remitted, and only upon the grounds contained with the order nisi, so that the Federal Court Rules cannot enable this Court to permit the amendment of the order nisi itself.  In my view, the following matters answer that contention, quite apart from the injustice which it may on occasion produce if it be correct, and also quite apart from its effect if correct being to limit the rights of the parties inconsistently with the purpose of the remitter.

Order 55 of the High Court Rules prescribes the procedure for obtaining an order nisi.  The application to be made to the Court is to be supported by affidavit:  O 55 r 1.  It is a matter of practice that the affidavit exhibit the reasons for decision of the Tribunal or entity against which the order is sought and a draft order nisi, and that the affidavit assert the grounds upon which the order nisi is sought.  The jurisdiction of the High Court under s 75(v) of the Constitution is not proscribed by the affidavit.  The remitted matter is the matter reflected in the issue between the parties, in respect of which the High Court has determined to exercise jurisdiction.  The amendment sought is to add a further ground (e) to the grounds, but in reality it seeks to add a further reason for the common ground to each of the existing “grounds”, namely that the Tribunal failed to determine the application for review “according to law and the decision is thereby beyond jurisdiction”.  It could equally be added as a further reason in support of one of the existing grounds.  The Court is seized of jurisdiction to determine whether the Tribunal’s decision was determined according to law.  In my view, to recognise and give effect to a reason which emerged in argument that the Tribunal’s decision was not determined according to law is not to exercise a jurisdiction beyond that of which the Court is properly seized.  That conclusion is in accordance with the views of Dawson J in In re O’Rielly; ex parte Bayford Wholesale Pty Ltd (1983) 151 CLR 557 at 564 and of Mason J in McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 238 on the nature of the jurisdiction of this Court upon a remitter under s 44 of the Judiciary Act.  It is, in my view, also reflected in the decision of Foster J in Dinnison v The Commonwealth (1997) 74 FCR 184 where this Court, having had the proceeding remitted to it by the High Court under s 44 of the Judiciary Act, was asked to transfer the proceeding to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).  Foster J decided that he had the power so to order.  His Honour said at 188-189:

 

 

 

“I am satisfied that once a High Court matter has been remitted to this court for hearing it becomes a proceeding in this court to be determined, in all respects, in accordance with this Court’s procedures and in accordance with any relevant statute law impinging upon those procedures.  There is no suggestion that, once the remitter has taken effect, the proceedings have any further connection with the High Court.  No interlocutory steps are to be taken in the High Court and the judgment given in the proceedings is a judgment of this Court.”

Accordingly, I propose to give the applicant leave to amend the order nisi in the manner sought, that is by adding par (e) to the grounds thereof as set out above, or alternatively by adding at the end of par (a) of the grounds thereof the words:

 

“or because the second respondent failed to give reasons for its decision as required by Section 368(1) of the Migration Act 1958”.

Nothing was put by the respondent to suggest that it would not otherwise be a proper exercise of discretion to permit such amendment if the power to do so existed.

CONCLUSION

In the light of the above reasons, it is my conclusion that the Court should quash the decision of the Tribunal and, to the extent necessary, should prohibit the respondent from giving effect to the decision of the Tribunal of 12 August 1996.  The Court should also remit the matter to the Tribunal for rehearing, and in my view that rehearing should take place before the Tribunal differently constituted.  If it is necessary to do so, I would direct the respondent to cause the Tribunal to rehear and determine the application for review according to law and in accordance with these reasons.

I shall hear the parties as to the formal orders to be made.

In the course of the hearing, the nature of the power of the Court to make such orders and the extent of the grounds of review available to the Court on a remitted mater were adverted to.  I should make some brief observations on those matters.

Section 485(3) of the Act purports to limit the Court, where a matter has been remitted to it under s 44 of the Judiciary Act, to the powers available to it as if the matter were as a result of an application made under Pt 8 of the Act.  Whatever the jurisdiction and powers of the High Court, the question arises as to whether this Court in such a matter may only review the Tribunal’s decision upon the grounds specified in and confined by s 476 of the Act.  In Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 16, 152 ALR 177 the High Court was asked to restrain the deportation of a visa applicant seeking a protection visa pending the hearing of the application for prerogative relief on grounds other than those available to the Federal Court under s 476 of the Act.  The application for prerogative relief was referred to the Full Court of the High Court.  This Court had determined that the visa applicant did not make out any ground under s 476 for judicial review of the decision of the Refugee Review Tribunal refusing to grant a protection visa.  Gummow J, after referring to s 485(3) of the Act, said (par 11) at 180:

 

“In the present case, that provision operates to exclude the exercise of the remitter power for which the Parliament otherwise has made provision in s 44 of the Judiciary Act.  That power of remitter is of considerable importance in facilitating the exercise by this Court of its primary and unique functions.  These are, first, in the original jurisdiction, the disposition of certain matters arising under, or involving, the interpretation of the Constitution and, secondly, its function, subject to the grant of special leave, as a final court of general appeal for the whole nation.  The result achieved by the Act as it now stands is to encourage the twin evils of cost and delay and, it would appear, to impede the efficient administration of the migration laws.”

It is implicit in his Honour’s observations that s 485(3) of the Act does validly limit the powers of this Court in this application.  I have proceeded on that basis.  My reasons are therefore related to the available grounds of review under s 476 of the Act.  I note however that earlier Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 10, 151 ALR 711 concluded that, in the particular circumstances, there was sufficient in the visa applicant’s claim that the High Court could review the decision of the Refugee Review Tribunal on grounds more extensive than those available to this Court under s 476 of the Act to warrant an injunction restraining her deportation from Australia whilst further material was presented in support of her claim.  The jurisdiction of the High Court arises under s 75(v) of the Constitution, and it is a jurisdiction unaffected by the Act.  Where this Court’s jurisdiction arises under s 44 of the Judiciary Act, the question may arise whether s 485(3) can so limit the Court’s powers.  I have expressed my reasons by reference to the grounds of review available under s 476 of the Act.  However, given the nature of the jurisdiction which the Court exercises upon remitter, I do not wish to be taken necessarily as accepting that s 485(3) does properly limit the Court in such circumstances in the manner it may seek to do.

It is also an arguable question whether s 485(3) does in fact, in its use of the word “powers” refer to the grounds of review under s 476 at all.  Finkelstein J adverted briefly to that issue in Thambythurai v Minister for Immigration and Multicultural Affairs (16 September 1997, unreported).  That case also involved a matter remitted to this Court by the High Court under s 44(1) of the Judiciary Act, to review a decision of the Refugee Review Tribunal.  His Honour did not find a ground of review to have been made out in any event, so the application failed.  However, he briefly discussed the import of s 485(3) of the Act.  He observed, without finally deciding the question, that the word ‘powers’ in s 485(3) is “likely” to include the grounds upon which the Court is able to review a decision of the Tribunal and not merely the form of relief which may be granted (whether under s 481 or otherwise) when it has been shown that errors of law have vitiated the decision.  I also do not need to decide that question, but I indicate that I incline to the same tentative view as that expressed by Finkelstein J.

I certify that this and the preceding thirty-five (35) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             

Counsel for the Applicant:	Mr T Hurley
Solicitors for the Applicant:	Barlow & Co
Counsel for the Respondents:	Mr W Mosley
Solicitors for the Respondents:	Australian Government Solicitor
Date of Hearing:	13 March 1998
Date of Judgment:	16 June 1998