Federal Court of Australia

Tadese v Minister for Immigration and Border Protection [2021] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Ex tempore, revised.)

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court of Australia which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister to refuse a Class UF Subclass 309 – Partner (Provisional) visa to the appellant’s partner (the visa applicant).

Background

2    The appellant is an Australian citizen, and has been so since 25 August 2011. The visa applicant is a citizen of the Federal Democratic Republic of Ethiopia. In May 2012, the visa applicant applied for a Class UF Subclass 309 – Partner (Provisional) visa from outside Australia which the appellant sponsored. The application documents stated that the appellant and the visa applicant were married on 24 February 2012 in Addis Ababa, Ethiopia, and a supporting marriage certificate issued by the City Government of Addis Ababa was produced.

3    Under subclause 309.211(2) of Schedule 2 of the Migration Regulations 1994 (Cth) an applicant for a Subclass 309 – Partner (Provisional) visa meets the requirements for the visa if the applicant is the spouse or de facto partner of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. Under s 5F of the Migration Act 1958 (Cth), a person is a spouse of another person if the two persons are in a married relationship, which requires that the marriage be valid for the purposes of the Act. For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Migration Act, Part VA of the Marriage Act 1961 (Cth) applies as if section 88E of that Act were omitted: Migration Act, s 12. Under s 88D(2) of the Marriage Act, a marriage to which Part VA applies is not to be recognised as a valid marriage if, inter alia, the parties are within a prohibited relationship within the meaning of s 23B. Under s 23B(2) of the Marriage Act, marriages of parties within a prohibited relationship include marriages between a brother and a sister, whether of the whole blood or the half-blood. In relation to de facto partners, sub-ss 5CB(2)(d) and (4) of the Migration Act exclude persons who are related by family, which includes persons who have a parent in common.

4    On 4 September 2012, an officer of the Department at the Australian High Commission in Nairobi, Kenya, wrote to the visa applicant stating that she resembled the appellant, and that she might be related to him as a sibling. The Department afforded the opportunity of DNA testing, at the visa applicant’s cost.

5    On 20 November 2012, a private DNA testing laboratory operated by Genetic Technologies Corporation Pty Ltd and based in Melbourne produced a report of its DNA analysis of samples received from the appellant and the visa applicant. The report stated that testing was undertaken to determine the likelihood that they were related as biological siblings. Two analyses were undertaken. The statistical likelihood of the appellant and the visa applicant being related as biological full siblings was calculated as 1 to 1. The report stated that this was inconclusive as to whether the appellant and the visa applicant were related as full biological siblings. The statistical likelihood of the appellant and the visa applicant being related as biological half-siblings, compared to unrelated individuals, was calculated as 66 to 1. The report stated that there was moderately strong evidence to support the proposition that the appellant and the visa applicant were related as biological half-siblings, which using the language of the Marriage Act, indicated a likelihood that the appellant and visa applicant were a brother and a sister of the half-blood.

6    On 18 December 2012, the Department advised the visa applicant of the results of the DNA testing, and gave her an opportunity to respond. Subsequently, the appellant responded, disputing that he and the visa applicant were related as biological half-siblings.

7    On 31 July and 1 August 2013, an officer of the Department in Nairobi sent two emails to the DNA testing laboratory asking the following questions: (1) whether the results of the testing could reflect a cousin relationship; and (2) if the appellant and the visa applicant were to undergo the same tests, would they get the same result, that is, that they are half-siblings? A senior scientist of the laboratory responded by stating that the laboratory did not test the appellant and visa applicant for a cousin relationship, and that such testing was not, in fact, offered by it. The response continued –

Our sibling test is based on how much of their DNA they have in common and as cousins they would be more distantly related than as half siblings (so share less of their DNA), so in my opinion the chances of that relationship would be lower, but it is possible.

8    In a second response, the senior scientist stated that if the same people were to take the test again, they would get the same result.

9    On 19 March 2014, the Department advised the visa applicant that her application for a visa had been refused, concluding that the appellant and the visa applicant were related as half-siblings, and therefore they were not in a valid marriage for the purposes of the Migration Act, and nor were they in a permissible de facto relationship.

10    The appellant then sought a review of the decision by the Migration Review Tribunal. During the course of that review proceeding the appellant sought an opportunity to furnish the results of another DNA test, informing the Tribunal that he and the visa applicant had engaged another private DNA testing laboratory with a view to obtaining a further DNA report. The Tribunal afforded the appellant some opportunity to so, but the appellant informed the Tribunal of difficulties in obtaining a DNA sample from the visa applicant. On 2 April 2015, and before the result of a further DNA test was provided, the Tribunal affirmed the decision not to grant a visa.

11    The appellant then sought judicial review of the Migration Review Tribunal’s decision in the Federal Circuit Court of Australia. On 10 May 2016, a judge of the Federal Circuit Court made orders by consent quashing the decision of the Tribunal, and remitting the matter for determination according to law. In making the orders, the court noted that the Tribunal had fallen into jurisdictional error by unreasonably refusing to adjourn the review to provide the visa applicant and the appellant with a further opportunity to undertake another DNA test.

12    Upon remittal, the review was undertaken by a member of the Migration and Refugee Division of the Administrative Appeals Tribunal: see, Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AG. On 12 December 2016, the Tribunal wrote to the appellant offering the opportunity to the appellant and the visa applicant, at their own cost, to undergo further DNA testing to disprove a sibling relationship. On 3 January 2017, the Tribunal agreed to extend until 19 January 2017 the time for the appellant to indicate whether he intended to provide DNA evidence.

13    In response to the Tribunal’s invitation to submit further DNA evidence, the appellant’s legal representative submitted a statutory declaration of the appellant dated 6 January 2017 attaching documentary evidence that he and the visa applicant had a child who was born on 21 October 2014, and that following the results of DNA testing, a certificate of Citizenship by Descent was issued under the Australian Citizenship Act 2007 (Cth), certifying that the child became an Australian citizen on 14 January 2016. The appellant stated in his statutory declaration that –

9.    In view of the above, I believe that a further DNA testing is no longer necessary because it is self-evident that the delegate would not have refused my wife’s spouse application if the above information were available at the time of the said decision.

10.    I respectfully request that the present Tribunal remit the matter to the Department for reconsideration on the ground that my wife meets the requirement for the grant of a spouse visa.

14    On 10 January 2017, the Tribunal wrote to the appellant’s legal representative inviting the appellant to appear at a hearing arranged for 27 February 2017. There was no appearance by the appellant at the hearing. A staff member of the Tribunal telephoned the office of the appellant’s legal representative and was told by a receptionist that the legal representative was in a meeting, and could not be disturbed. The legal representative later returned the Tribunal’s call, and informed the Tribunal that he had not received the notice of hearing.

15    On 1 March 2017, the Tribunal gave notice to the appellant’s legal representative of a second hearing that was arranged for 16 March 2017, and which took place as scheduled. Both the appellant and his legal representative attended the hearing, and the appellant gave evidence. Before the Tribunal, the appellant maintained that he and the visa applicant did not have a sibling relationship. Following the hearing, the appellant’s legal representative made written submissions to the Tribunal dated 6 April 2017. By those submissions, the appellant’s legal representative argued that DNA testing should be used only as a last resort. The legal representative also argued that while declining DNA testing might be considered a factor in making a decision, it should not be the basis or the main reason for the decision. It was submitted that there may be genuine reasons such as financial or cultural issues that can lead an applicant to decline DNA testing. The representative submitted that the appellant and the visa applicant had found the DNA testing in 2012 exceedingly humiliating, and emotionally and financially stressful, which is why they had objected to “the demand for a third DNA testing”.

16    On 12 June 2017, the Tribunal determined to affirm the decision of the delegate to refuse the application for the visa. The written record of the Tribunal’s decision was provided to the appellant’s legal representative on 14 June 2017 The Tribunal addressed and rejected the submission that the appellant and the visa applicant had found the earlier DNA testing humiliating, stating –

46.    In his post-hearing submission, the representative claimed that the review applicant and the visa applicant found the 2012 DNA test process humiliating, and emotionally and financially stressing, which is why they objected to the “demand” for a third DNA testing. However, this is clearly not the case.

47.    In January 2013 the review applicant wrote to the Department claiming that he and the visa applicant strongly believed there was some sort of error during the DNA sample collection or testing process, such as human error in collecting and storing the sample or in the process of analysing the data. On that basis, he requested that he and his spouse be given a chance to take another DNA test to demonstrate that they are not related as biological half-siblings.

48.    Furthermore, the representative wrote to the previously constituted Tribunal on 6 March 2015 requesting an extension of time to provide further DNA evidence as the review applicant and the visa applicant had engaged DNA Bioservices Pty Ltd to obtain a further DNA report, which was anticipated to take 3 weeks to obtain. Whilst the Tribunal granted an extension of time until 31 March 2015 for this evidence to be submitted, the representative advised on 1 April 2015 that the visa applicant was finding it difficult to obtain further DNA evidence because specimen testing agencies in Ethiopia would not get involved unless there was a letter from an authority authorizing the DNA test. Accordingly, the representative requested that the Tribunal provide such a letter. Although the previously constituted Tribunal refused to do so (which in essence was the ground upon which the case was later remitted by consent from the Federal Circuit Court), the Tribunal as presently constituted provided the requested letter on 12 December 2016. However, the review applicant has refused to participate in a further DN test, notwithstanding that the Tribunal has offered to wait for the outcome of such testing.

17    The Tribunal was not satisfied that the parties were not siblings, and therefore considered that they were in a prohibited relationship. The Tribunal relied on the 2012 DNA evidence, and the appellant’s failure to undergo further DNA testing with the visa applicant, finding –

49.    The Tribunal accepts that the 2012 DNA test result is not definitive. However, the siblingship analysis that was undertaken scientifically assesses the most likely relationship between the tested parties in terms of whether they are full siblings (having both mother and father in common), half siblings (having either just their father or just their mother in common) or not siblings (and thus having no common parent). The higher the value the higher the chances that the tested parties are blood siblings. The Tribunal considers that the representative’s post hearing submissions would require it, in effect, to ignore or set aside this probative evidence which the Tribunal considers to be extremely relevant to its determination.

…

51.    Having considered all of the oral evidence and the various written submissions and other documentation submitted, such as the visa applicant’s birth certificate, the Tribunal places significant weight on the 2012 DNA test result evidence in making its assessment of the validity of the marriage. The Tribunal also places significant weight on the review applicant’s refusal to participate in further DNA testing with the visa applicant notwithstanding that this was the specific reason for the remittal of this case by consent from the Federal Circuit Court on 10 May 2016.

18    The Tribunal was therefore not satisfied that the marriage was a valid marriage for the purposes of s 5F of the Migration Act, and nor was it satisfied that the appellant and the visa applicant lived in a de facto relationship, as defined by sub-ss 5CB(2) and (4). On that basis, the Tribunal affirmed the decision of the delegate of the Minister not to grant the visa.

The proceeding below

19    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The grounds of review were lengthy and repetitive, and most of them are not relevant to the issues on appeal. On 10 July 2020, the primary judge dismissed the application for judicial review, and published extensive reasons addressing the appellant’s grounds of review: Tadese v Minister for Immigration and Border Protection & Anor [2020] FCCA 1885. I will refer to relevant aspects of the primary judge’s reasons for judgment when addressing the grounds of appeal.

The grounds of appeal

20    The appellant’s grounds of appeal are set out in the particulars under paragraph 3 of the notice of appeal, which claims that the primary judge erred in failing to find jurisdictional error in the Tribunal’s decision as follows –

(i)    The learned Judge erred in finding, at Paragraphs 17-8 of [her Honour’s] reasons for judgment, that the Second Respondent, in failing to be satisfied that the Appellant and his spouse were not half-siblings, was entitled to rely upon characterisation of DNA Test Results as: “moderately strong” evidence that this was the case; in that doing so was unreasonable, irrational, illogical and/ or arbitrary, lacking an evident and intelligible justification and/ or not based on findings or inferences of fact supported by logical grounds, in the context of other available evidence.

(ii)    The learned Judge erred in finding, at Paragraphs 22-4 of [her Honour’s] reasons for judgment, that the Second Respondent had given proper, genuine and realistic consideration to the possibility that the Appellant and his spouse were cousins before failing to be satisfied that they were not half-siblings.

(iii)    The learned Judge erred in finding, at Paragraphs 52-4 of [her Honour’s] Judgment, that the Administrative Appeals Tribunal properly applied the applicable law and in not finding the Tribunal failed to proceed from applying the prima facie assumption of the validity of the Appellant’s marriage under Section 88G of the Marriage Act 1961 (Commonwealth) before considering Section 88D(2)(c) of the Act.

(iv)    The learned Judge erred in finding, at Paragraphs 20, 71 and 98 of [her Honour’s] Judgment, that the Administrative Appeals Tribunal had given proper, genuine and realistic consideration to the reasons why the Appellant did not want to undergo further DNA Testing[.]

Analysis

21    I will consider the four grounds of appeal in turn.

The first ground of appeal

22    Judicial review on the ground of jurisdictional error is concerned with the legality of an administrative decision: it is not a review of the underlying merits except to the extent that the findings on questions of fact are relevant to the question whether the Tribunal’s decision was outside a lawful exercise of the relevant decision-making power or function. Findings by the Tribunal on material questions of fact may be amenable to judicial review on the ground of excess of power if the findings are attended by legal unreasonableness. However, in discharging the court’s function to review decisions of the Tribunal on the ground of legal unreasonableness, care should be taken not to exceed its supervisory role by undertaking a merits review. That is because the merits of the administrative review, to the extent that they can be distinguished from legality, are for the Tribunal as the repository of the review function: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ). The test for legal unreasonableness is therefore necessarily stringent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ). A factual finding as to a material matter may be outside the lawful scope of the review function conferred on the Tribunal if there was no evidence to support it, or if there was otherwise no intelligible justification for the finding, or if the finding was the product of illogical or irrational reasoning such as reasoning that is arbitrary or capricious, or if it was one at which no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131], [135] (Crennan and Bell JJ). These overlapping categories represent different ways in which excess of power may arise.

23    Before the primary judge the appellant claimed that the Tribunal had failed to identify a sufficiently clear or rational basis for concluding, as it had at [49] of its reasons, that the 2012 DNA test results were probative and extremely relevant. The primary judge at [17] rejected this claim as not being sustainable. The primary judge stated that it was not disputed that the 2012 DNA test was undertaken by a laboratory qualified in genetic testing that tested DNA samples that were provided by the appellant and the visa applicant. In response to a claim by the appellant that it was incumbent upon the Tribunal to state the actual likelihood of the appellant and the visa applicant being half-siblings, the primary judge held at [18] that it was not necessary for the Tribunal to go beyond noting the results of the 2012 DNA test, which were to the effect that the statistical likelihood of the appellant and the visa applicant being half-siblings compared to unrelated individuals was 66 to 1, which was moderately strong evidence of them being half-siblings.

24    The appellant maintains in this court the substance of the claim put below that the Tribunal’s characterisation of the 2012 DNA test result as being moderately strong evidence was affected by jurisdictional error in that it was unreasonable, irrational, illogical, arbitrary, lacking an evident and intelligible foundation and otherwise not based upon findings or inferences of fact supported by logical grounds.

25    The primary judge was correct to dismiss as unsustainable the appellant’s claim that the Tribunal’s findings relating to the 2012 DNA test were not open to the Tribunal. It was well open to the Tribunal to act on the evidence contained in the written results relating to the test of the DNA samples in 2012, and it was open to the Tribunal to be fortified in its conclusions by the fact that the appellant and the visa applicant did not submit to any further DNA testing despite seeking, and then being given opportunities to do so. The Tribunal was not required to descend to make a finding about the actual likelihood of the appellant and the visa applicant being half-siblings. It was open to the Tribunal to place significant weight on the report of the DNA testing, which spoke for itself. The Tribunal was not required to accept the submissions as to why the appellant and the visa applicant had not submitted to further DNA testing, and having regard to all the other circumstances was entitled to reject those submissions. Those other circumstances included the fact that the appellant had requested opportunities to submit to further DNA testing, and had succeeded in having an earlier decision of the Migration Review Tribunal quashed on the ground that the Tribunal had unreasonably refused to adjourn the hearing of the review to provide the visa applicant and the appellant an opportunity to undertake further DNA testing (see [11] above).

26    I reject the first ground of appeal.

The second ground of appeal

27    The second ground of appeal claims that the primary judge erred in finding that the Tribunal had given proper, genuine, and realistic consideration to the possibility that the appellant and the visa applicant were cousins. This possibility was the subject of the enquiry made by the Department to the DNA testing laboratory to which I referred at [7] above and which had been referred to in the reasons of the delegate dated 19 March 2014 when refusing the application for the visa. The Migration Review Tribunal in its reasons for decision dated 2 April 2015 was satisfied that the appellant and the visa applicant could not be related as cousins, referring to the DNA evidence.

28    As I have mentioned, the appellant’s grounds of review before the Federal Circuit Court were lengthy and repetitive. None of the grounds of review before the primary judge claimed that the Tribunal had made any error by failing to consider that the appellant and the visa applicant were cousins. However, at [22]-[24] of the primary judge’s reasons her Honour addressed a written submission made on behalf of the appellant that the Tribunal had, in light of the communications between the Department and the testing laboratory, failed to consider the possibility that the appellant and the visa applicant were cousins. The primary judge held that the evidence before the Tribunal was clear that it was more likely that the appellant and the visa applicant were half-siblings than they were cousins, and that the appellant’s complaint was without substance.

29    The Tribunal was not required to undertake a considered analysis of the discrete possibility that the appellant and the visa applicant might be cousins because that possibility had been addressed as part of, and was subsumed by the DNA evidence upon which the Tribunal acted: see, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] (French, Sackville and Hely JJ). The possibility was addressed by the testing laboratory in its response to an enquiry by the Department that was before the Tribunal, and to which I referred at [7] above. The response stated that the chances of a cousin relationship were lower but possible, and did not qualify the opinion that the testing for a half-sibling relationship afforded moderately strong evidence of such a relationship. Contrary to a submission put on behalf of the appellant, in discharging its review function the Tribunal was not required to seek any further clarification from the testing laboratory, particularly in the context where the appellant and the visa applicant had been given reasonable opportunities to undergo further DNA testing. The Tribunal acted on the DNA evidence that was before it as indicating that the appellant and the visa applicant shared one common parent, which was a conclusion that was well open on the totality of the material that was before the Tribunal.

30    I reject the second ground of appeal.

The third ground of appeal

31    The third ground of appeal raises the question of the operation of s 88F and s 88G(1) of the Marriage Act, which are within Part VA of the Act relating to the recognition of foreign marriages.

32    At common law, upon proof that a marriage ceremony was duly performed, a presumption arises in favour of the validity of the marriage, casting upon those who deny the validity of a marriage the burden of producing reasonable evidence of a fact that renders the marriage void: Axon v Axon [1937] HCA 80; 59 CLR 395 at 403-404 (Dixon J). That presumption extends to marriages in foreign places and under foreign law: Jacombe v Jacombe [1961] HCA 25; 105 CLR 355 at 359-360 (Dixon CJ, Fullagar and Menzies JJ).

33    Part VA of the Marriage Act was inserted by the Marriage Amendment Act 1985 (Cth). Section 88A provides that the object of the Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages [1991] ATS 16, done at The Hague on 14 March 1978, and which was signed by Australia on 9 July 1980. Articles 9 to 12 of the Convention correspond to the provisions of the Marriage Act in issue in the present appeal –

Article 9

A marriage validly entered into under the law of the State of celebration or which subsequently becomes valid under that law shall be considered as such in all Contracting States, subject to the provisions of this Chapter.

A marriage celebrated by a diplomatic agent or consular official in accordance with his law shall similarly be considered valid in all Contracting States, provided that the celebration is not prohibited by the State of celebration.

Article 10

Where a marriage certificate has been issued by a competent authority, the marriage shall be presumed to be valid until the contrary is established.

Article 11

A Contracting State may refuse to recognise the validity of a marriage only where, at the time of the marriage, under the law of that State –

(1)    one of the spouses was already married; or

(2)    the spouses were related to one another, by blood or by adoption, in the direct line or as brother and sister; or

(3)    one of the spouses had not attained the minimum age required for marriage, nor had obtained the necessary dispensation; or

(4)    one of the spouses did not have the mental capacity to consent; or

(5)    one of the spouses did not freely consent to the marriage.

However, recognition may not be refused where, in the case mentioned in sub-paragraph 1 of the preceding paragraph, the marriage has subsequently become valid by reason of the dissolution or annulment of the prior marriage.

Article 12

The rules of this Chapter shall apply even where the recognition of the validity of a marriage is to be dealt with as an incidental question in the context of another question.

However, these rules need not be applied where that other question, under the choice of law rules of the forum, is governed by the law of a non-Contracting State.

34    Before the primary judge, the appellant relied on s 88F and s 88G of the Marriage Act, which provide –

88F    Incidental determination of recognition of certain foreign marriages

Notwithstanding any other law, the question whether a marriage solemnised in a foreign country is to be recognised in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question.

88G    Evidence

(1)    A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by:

(a)    in the case of a marriage alleged to have been solemnised in a foreign country—an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or

(b)    in the case of a marriage alleged to have been solemnised under the law of a foreign country—an authority of that country;

is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.

…

35    The explanatory memorandum to the Marriage Amendment Bill 1985 stated that s 88F was in accordance with the basic policy expressed in Article 12 of the Convention, which is set out under [33] above. Section 88F is directed to a situation where the question of the validity of a marriage may be incidental to some other question, such as the right to share in an estate under the laws of succession, or a right to statutory compensation where marriage is a criterion, as illustrated by Haque v Haque [1962] HCA 39; 108 CLR 230. The issue that may arise is whether the question of the validity of a marriage is to be determined in accordance with the choice of law rules relating to the underlying cause of action in question, or in accordance with choice of law rules that are specifically applicable to the question of marriage. Some of these questions are referred to in Collins (Ed), Dicey and Morris on The Conflict of Laws (13th ed, 2000) in Chapter 2. See also, Gotlieb, The Incidental Question in Anglo-American Conflict of Laws (1955) 33 Can Bar Rev 523; Gotlieb, The Incidental Question Revisited – Theory and Practice in the Conflict of Laws (1977) 26 ICLQ 734; Fisher, The Australian Adoption of The Hague Convention on Celebration and Recognition of the Validity of Marriages (1986) 2 QITLJ 17; Davies, Bell, Brereton and Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2020) at [15.28] to [15.34].

36    The effect of s 88G(1) of the Marriage Act is that a document purporting to be a record of a marriage alleged to have been solemnised under the law of a foreign country is for all purposes prima facie evidence of the facts stated in the document, and of the validity of the marriage. Section 88G may be compared to s 102 of the Family Law Act 1975 (Cth), which is less prescriptive in its terms, and applies only to proceedings under that Act.

37    Attention must also be directed to s 88C and to s 88D of the Marriage Act, which provide (inter alia) –

88C    Application of this Part

(1)    This Part applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country where:

(a)    under the local law, the marriage was, at the time when it was solemnised, recognised as valid; or

(b)    if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country:

(i)    under the law of that other foreign country, the marriage was, at the time when it was solemnised, recognised as valid; and

(ii)    at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law.

(2)    Where a marriage (not being a marriage referred to in subsection (1)) that was solemnised, whether before or after the commencement of this Part, in a foreign country:

(a)    is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the local law; or

(b)    if the marriage was solemnised by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnised, the solemnisation of the marriage was not prohibited by the local law—is, at any time in relation to which the validity of the marriage falls to be determined, recognised as valid under the law of that other foreign country;

this Part applies to and in relation to the marriage from and including that time.

88D    Validity of marriages

(1)    Subject to this section, a marriage to which this Part applies shall be recognised in Australia as valid.

(2)    A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

…

(c)    the parties are within a prohibited relationship within the meaning of section 23B; or

…

…

38    Section 88D(2)(c), set out above, refers to s 23B(2) of the Marriage Act, which provides –

23B    Grounds on which marriages are void

…

(2)    Marriages of parties within a prohibited relationship are marriages:

(a)    between a person and an ancestor or descendant of the person; or

(b)    between a brother and a sister (whether of the whole blood or the half-blood).

…

39    It is relevant to an understanding of ss 88C, 88D, 88F, and s 88G(1) of the Marriage Act to have regard to the interpretation provision in s 88B(3) –

88B    Interpretation

(1)     In this Part, unless the contrary intention appears:

…

local law, in relation to a marriage solemnised in a foreign country, means the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnised.

…

(3)    In this Part, a reference to a marriage includes a reference to a purported marriage that is void or voidable but does not include a reference to a marriage solemnised under Part V.

…

40    Before the primary judge, counsel for the appellant submitted that the Tribunal had failed to recognise that s 88F and s 88G of the Marriage Act required that the appellant’s marriage to the visa applicant be prima facie recognised as being valid because the marriage was evidenced by a marriage certificate. Counsel submitted that in this context the 2012 DNA test results had been given improper weight.

41    The primary judge rejected the appellant’s claim, holding at [54] that while the marriage was prima facie valid, the provisions of s 88D and s 23B(2) prevailed. On appeal, counsel for the appellant submitted that the primary judge had erred, and that s 88D was concerned only with facts that might be proven to rebut a presumption established by s 88G(1).

42    The submissions advanced on behalf of the appellant raise two main issues: (1) as a question of construction, is the prima facie position established by s 88G(1) of the Act concerned with the validity of a marriage under foreign law, or does it extend to the recognition in Australia of the validity of a marriage for the purposes of s 88D of the Act; and (2) in any event, what is the effect of the prima facie position established by s 88G(1)?

43    The explanatory memorandum to the Marriage Amendment Bill 1985 stated that s 88G was in accordance with Article 10 of the Convention. Article 10 must be read subject to Article 11, which permits a Contracting State to refuse to recognise the validity of a marriage in circumstances that align with s 88D(2) of the Marriage Act. Therefore, consistently with Articles 9 to 12 of the Convention, which are set out under [33] above, the scheme of Part VA of the Marriage Act differentiates between the validity of a marriage under foreign law, and the recognition of the validity of the marriage under Australian law. The combined effect of s 88C and s 88D is that a marriage that is valid under foreign law shall be recognised in Australia as valid, unless one of the exceptions in sub-ss 88D(2) to (5) is engaged. In order for Part VA of the Act to apply, there is the requirement in s 88C(1)(a) that a marriage solemnised in a foreign country be recognised as valid under the applicable local law. Section 88C(2) extends the application of Part VA to marriages solemnised in a foreign country that are recognised as valid under the local law at any time in relation to which the validity of the marriage falls to be determined.

44    As I have indicated, s 88D of the Marriage Act is concerned with the question of recognition in Australia of the validity of a marriage, and sub-ss 88D(2) to (5) provide for exceptions to the general rule in s 88D(1) that a marriage to which Part VA applies shall be recognised in Australia as being valid. Section 88D contains its own criteria relating to the question of recognition under Australian law. In simple terms, those criteria are that the marriage is one to which Part VA applies, and is not one to which any of the disqualifying conditions in sub-ss 88D(2) to (5) applies.

45    In my view, the better construction of s 88G(1) of the Marriage Act is that it is concerned with the fact of, and the validity of a marriage under foreign law: it is not directly concerned with the recognition of a marriage for the purposes of s 88D. That construction is supported by the text of s 88G(1), which provides that a document to which the provision applies is prima facie evidence of the validity of the marriage to which the document relates, which complements s 88C(1) of the Act, by facilitating proof of the fact of, and the validity of the marriage in a foreign country. It is also consistent with the delineation between the validity of a marriage under the law applicable to the solemnisation of the marriage, and the recognition of a marriage, which is subject to the laws of the forum, being Australia. The validity of a marriage under foreign law is a question that is relevant to whether Part VA of the Act applies, and is anterior to the question of recognition under Australian law pursuant to s 88D. It is unlikely that a document recording a foreign marriage that was issued by a competent authority in relation to a foreign country would speak to the validity of a marriage for the purposes of recognition under the laws of Australia, and in particular to the exclusions in sub-ss 88D(2) to (5) of the Marriage Act. This construction has the consequence that in proceedings where there are pleadings and where the rules of evidence apply, a party seeking to invoke one of the exclusions in sub-ss 88D(2) to (5) of the Marriage Act would ordinarily have to raise the issue and adduce evidence, following which a court would evaluate the totality of the evidence having regard to the identification of which party bears the legal burden of proof, and the gravity of the underlying matters alleged: Evidence Act 1995 (Cth), s 142(2). In criminal proceedings, an onus may fall upon the Crown to exclude the exceptions in sub-ss 88D(2) to (5): cf, R v Byast [1997] QCA 276; [1999] 2 Qd R 384 at 386.

46    For these reasons, I consider that the evidentiary provision in s 88G(1) of the Marriage Act was not applicable to the contentious question whether, for the purposes of s 88D of the Act, the appellant and the visa applicant were half-siblings, with the consequences that they were in a prohibited relationship within the meaning of s 23B of the Act. The primary judge was therefore correct in holding at [54] of her Honour’s reasons for judgment that s 88D of the Act prevailed.

47    The appellant’s argument assumed that s 88G(1) otherwise applied to a review by the Tribunal. I raised this assumption with counsel during the course of the hearing, but it was not the subject of full argument. The Tribunal was not bound by technicalities, legal forms, or rules of evidence, and was required to act according to substantial justice and the merits of the case: Migration Act, s 353. However, s 88G(1) of the Marriage Act provides that a document to which it applies is, “for all purposes”, prima facie evidence of the facts stated in the document and of the validity of the marriage. The assumption that s 88G(1) applied to a review by the Tribunal may be supported, as counsel for the appellant submitted in response to a question from the court during the hearing, by construing s 12 of the Migration Act, which provides that Part VA of the Marriage Act applies for the purpose of recognising whether a marriage is to be recognised as valid, as making s 88G(1) of the Marriage Act applicable to all decisions under the Migration Act, whether administrative or curial. In addition, s 88G(1) of the Marriage Act and s 353 of the Migration Act may be reconciled by giving literal effect to the term “for all purposes” in s 88G(1), thereby suppressing the general operation of s 353 of the Migration Act on the ground that it is of general operation, whereas s 88G of the Marriage Act, as picked up by s 12 of the Migration Act, has a specific operation relating to proof of marriage. Another approach might be to treat s 88G(1) of the Marriage Act as a rule of substantive law, consistently with its origins as an implementation of a Convention obligation, so that it applies to an administrative decision-maker such as the Tribunal, which in any event was required to act according to substantial justice and the merits of the case. Counsel for the Minister accepted during argument that in acting according to substantial justice and the merits of the case the Tribunal would ordinarily be expected to give effect to s 88G(1) of the Marriage Act.

48    Alternatively, if I am wrong in my construction of s 88G(1), then even if the Tribunal was required to treat the marriage certificate as prima facie evidence of the validity of the marriage for the purposes of recognition under s 88D, then there was no material error in the Tribunal placing significant weight on the 2012 DNA test results and no weight on the marriage certificate.

49    To say that a document is prima facie evidence of a fact or state of affairs raises a presumption that may be rebutted. In the absence of other material, a decision-maker may act on the document. However, where there is other evidence that directly addresses the fact in issue, a prima facie presumption may lose much of its force: see for example, and in a curial context, Saxe v Kellett [1970] VR 600 at 602 (Anderson J).

50    The contentious question that the Tribunal determined adversely to the appellant and the visa applicant was not whether a marriage ceremony had taken place, or the validity of the marriage under the local law of Ethiopia. The contentious issue before the Tribunal was whether it was satisfied that the appellant’s marriage was recognised in Australia as a valid marriage having regard to the 2012 DNA test results that supported a conclusion that the appellant and the visa applicant were half-siblings. The appellant’s marriage certificate did not speak to that issue at all, and from an evidentiary viewpoint on that question it was an empty husk because there was nothing of substance in the marriage certificate to balance against the evidence of the 2012 DNA results, which it was open to the Tribunal to accept as having significant weight. For this reason, any error by the Tribunal in failing to have regard to s 88G(1) of the Marriage Act as giving rise to a prima facie presumption of recognition of validity for the purposes of s 88D was not material, because there was no realistic possibility of a different outcome having regard to the other evidence that the Tribunal accepted: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], [48]-[50], [70]-[71] (Bell, Gageler and Keane JJ).

The fourth ground of appeal

51    By the fourth ground of appeal, the appellant claims that the primary judge erred in finding at [20], [71], and [98] of her Honour’s reasons for judgment that the Tribunal had given proper, genuine and realistic consideration to the reasons why the appellant did not want to undergo further DNA Testing.

52    At [20] and [71] of the reasons for judgment the primary judge did not make the findings that are attributed to her Honour by the fourth ground of appeal. However, at [98] the primary judge addressed particular 3(b) of the appellant’s grounds of review, which claimed that the Tribunal failed to take into account as a relevant consideration –

The impact on the [appellant’s] willingness to be subjected to further DNA testing of the financial and emotional strain of having already agreed to multiple earlier tests, including the test which established that he and his wife are the parents of their son[.]

53    Counsel for the appellant submitted that “nothing support[ed]” the primary judge’s rejection of the claim. I reject this submission: the primary judge referred to [46] to [48] of the Tribunal’s statement of reasons that are set out under [16] above, which speak for themselves.

54    Counsel for the appellant also submitted to this court that the Tribunal’s findings were not consistent with a letter from the appellant to the Department dated 5 July 2013, or with the contents of a letter from the Department to the visa applicant dated 4 September 2012. This submission sought to cavil with the merits of the Tribunal’s decision, and for that reason was not directed to any jurisdictional error. Moreover, the documents that were relied on do not support the submission. The appellant’s letter dated 5 July 2013 sought a reply from the Department in relation to the visa application, and is reasonably to be understood as a plea by the appellant to process the application because the delay was affecting his health, his ability to sleep, and his concentration. This understanding of the letter is supported by a medical certificate that was attached to the letter which attributed the appellant’s health conditions to the time it had taken to process the visa application. The letter did not reasonably relate to why the appellant would not undergo further DNA testing.

55    The Department’s letter to the visa applicant of 4 September 2012 warned of the possible distressing effect of DNA results on persons who were tested in the following terms –

Please note that sibling DNA testing provides conclusive evidence of biological, not cultural, sibling ship. The results of DNA testing may have a significant and possibly a distressing effect on those persons tested. An example of this could include an applicant finding out that he is not the biological sibling of someone. Therefore, there is the option to receive counselling from a qualified professional either before or after a DNA donor undergoes DNA testing, but costs will be borne by the client. Should you wish to receive counselling at any stage, please contact this office to obtain details of how to arrange a counselling appointment.

56    The passage set out above was general advice by the Department, and not a claim made by the visa applicant.

57    It was open to the Tribunal to place weight on the opportunities that the appellant and the visa applicant had sought in order to furnish further DNA evidence in rejecting the submission made on their behalf that they had not taken up those opportunities because they had found the 2012 DNA testing humiliating, and emotionally and financially stressing.

58    No error has been demonstrated in her Honour’s reasons for rejecting the claim made in particular 3(b) of the appellant’s grounds of review, and I find that this fourth ground of appeal is without merit.

Conclusion

59    The appeal will be dismissed with costs.

Associate:

Dated:    14 May 2021