Blatch v Archer

A restatement of the obvious: in deciding whether something has been proved on the balance of probabilities, it is important to have regard to the ability of the party who has the onus to lead evidence on a particular matter.

From Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168; BC200103028 at [16]:

[14] There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-643). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.

[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970):

All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

Formulaic ‘consideration’ of indefinite detention

If the Minister in deciding to refuse the grant of a protection visa to a person to whom Australia does owe protection obligations says, in the reasons, that he wishes to consider ‘alternative management’ options than indefinite detention, then he may have misunderstood s 197C and therefore made an unlawful decision. See DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.

Credibility and omissions of claims from entry interview

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, North, Bromberg and Mortimer JJ observed at [56]:

some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Whether applicant received a fair hearing is ‘objectively’ assessed

In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, the Court observed:

[37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

See also SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; 226 FCR 68 at [15] per Flick J and Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [66] per Griffiths and Moshinsky J.

Attacking findings of adverse credibility

The Minister’s common retort that making findings as to credibility is a task of the tribunal ‘par excellence’ is often abused.  That tautology does not mean that credibility findings cannot be challenged in judicial review.  Criticism of the abuse of ‘par excellence’ was made in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]:

Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):

67 In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

68 But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:

“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”

The prosecutor argued at the hearing that s 430(1)(c) “feeds into the ascertainment of the Minister’s satisfaction” and that it is “an integral part of ascertaining the jurisdictional fact”.

(emphasis added)

It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a) failure to afford procedural fairness;

(b) reaching a finding without any logical or probative basis;

(c) unreasonableness; and/or

(d) jurisdictional error as discussed by Flick J in SZVAP.

Consideration by Tribunal of indefinite detention

It is not enough for a Tribunal to conclude, in a s 501 character review, that the applicant has a prospect of release from indefinite detention through the exercise of Ministerial discretion. The legal consequences of a character refusal will often be indefinite detention (for example, if the person engages Australia’s protection obligations), and that, and only that, is certain. It therefore must be considered by the Tribunal. Anything about what might happen (other than indefinite detention) to the applicant is speculative. See eg NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; DEY16 [2016] FCA 1261.

‘Collateral attack’

This term is used loosely.  It was discussed by McHugh J in Ousley v R (1997) 192 CLR 69, page 99:

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision[73]. In In re Preston[74], however, Lord Scarman used the term “collateral challenge” to include any process challenging a decision – including an application for judicial review – other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term “collateral challenge” is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues[75].

The Supreme Court of Victoria is a superior court of record. Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction[76]. They cannot be treated as nullities[77]. It is not open to an inferior court to ignore them. Indeed, a superior court “which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law”[78]. If warrants issued under the Act by the Supreme Court are judicial orders, it follows that the trial judge was correct in holding that he had no jurisdiction to entertain a collateral challenge to their validity.

These comments were adopted in Singh v Minister for Immigration [2016] FCCA 387, [25] where Manousaridis J observed:

[25] … The expression “collateral attack” is often used to denote the challenging of an administrative act or delegated legislation “in proceedings where the validity of the administrative act [or delegated legislation] is merely an incident in determining other issues”.12 An example is Guo v Minister for Immigration and Citizenship where Besanko J considered whether a regulation made under s 504 of the Act was invalid.13 His Honour noted that the Minister did not suggest that a collateral attack on the validity of the regulation was not permissible, and that the appeal was conducted on the footing that if his Honour were to decide that the regulation in question was invalid, constitutional writs directed to the Tribunal should issue.14

Collateral challenges may nonetheless be permissible–the observations in Ousley are in relation to decisions made by a superior Court of record.  Decision made by a Tribunal or officer of the Commonwealth or a State are different.  Thus, in Robinson v Vanston [1999] VSC 541, [152], Ashley JA observed:

Focussing, then, on the matter of principle, the making of a decision upon an application for classification is an administrative act. Prima facie it should be open to challenge by administrative law process. That should not prevent it being subject to collateral challenge, as to which see Ousley v The Queen (1997) 192 CLR 69 at 98- 99 per McHugh J.

More recently, in R v Debono [2012] VSC 350; 222 A Crim R 194 Kyriou J observed at [162]:

Administrative acts and decisions are generally susceptible to collateral challenge in a court.[151]  For example, a collateral challenge to the validity of a telecommunications interception warrant can be brought in the course of a trial, provided that the trial judge has jurisdiction to determine such a challenge.[152]  However, the scope of permissible collateral challenge is unclear.[153]

Sometimes statute may limit the ability to mount a collateral attack.  In Director of Housing v Sudi [2011] VSCA 266; 33 VR 559 the Victorian Court of Appeal considered a situation where the Director made an application to VCAT for eviction orders under the Residential Tenancies Act.  VCAT considered an argument that the anterior decision by the Director to make such an application at all was unlawful because of the Charter of Human Rights and Responsibilities.  Maxwell P considered the issue from [58] onwards and concluded that the particular statutory scheme did not allow VCAT to uphold such a collateral attack.


The Department’s intransigent insistence on lawyers’ proof of ‘authority’

This ham-fisted practice of requiring the principal to provide written ‘authority’ of proof of a lawyer’s authority to act was discussed in BMF16 v Minister for Immigration [2016] FCA 1530 at [130]-[131].  Bromberg J did not make any specific consequential findings but his Honour did make some veiled criticism:

130. …the evidence establishes that the Department refused to recognise Russell Kennedy or Ms Olivia McMillan or Ms Emma Dunlevie, both lawyers and migration agents employed by Russell Kennedy, as F’s representatives in relation to his application for citizenship. At this point, it is convenient that I return to the facts which, as earlier indicated, I will now elaborate upon.

131. As I have earlier outlined, on 30 March 2016, Russell Kennedy wrote to the Department requesting that the Minister make a decision about F’s application for Australian citizenship. It is apparent that that correspondence did not satisfy the Department that Russell Kennedy was representing F in relation to his application for citizenship. That may be thought surprising given that the representation was made by a lawyer who was subject to rigorous professional obligations including a duty to act honestly: cl 4.1.2 Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015. In response to the letter, the Department telephoned Russell Kennedy requesting a completed Form 956 “Advice by a migration agent/exempt person of providing immigration assistance”. In response, Ms McMillan and Ms Dunlevie wrote to the Department explaining that pursuant to the Reg 7G(1)(b) of the Migration Agents Regulations 1998 (Cth), they were providing notification by letter, instead of by completed Form 956, that they were acting for F in relation to his application to become an Australian citizen. On 6 July 2016, Ms McMillan spoke by telephone to a solicitor representing the Minister in this proceeding. She requested that the solicitor advise the Minister to direct its correspondence in respect of F to Russell Kennedy. She was told that the solicitor would advise the responsible person in the Department by email. Ms McMillan told the solicitor that F was in Pakistan visiting his ill mother and was expected to return to Australia on 2 October 2016 and that an interview with F could be conducted by telephone if need be.

Denial of procedural fairness creates near-absolute consequences

The proposition is trite but sometimes overlooked.

A modern High Court migration authority for this proposition can be found in SZBEL v Minister for Immigration (2006) 228 CLR 152, [25].

In BMF16 v Minister for Immigration [2016] FCA 1530, Bromberg J said at [222]-[224]:

222. In Ucar, following a comprehensive survey of the authorities, Redlich JA (with whom Warren CJ and Chernov JA relevantly agreed) stated (footnotes omitted):

In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.

223. As to the first circumstance contemplated by Stead and referred to by Redlich JA, there is no incontrovertible fact or point of law which provides a discrete basis for G’s refusal decision which is not affected by the procedural unfairness which I have found. As for the second circumstance contemplated in Stead, it was for the Minister to demonstrate that it would be futile to set aside G’s refusal decision because on a reconsideration, the result would inevitably be the same (as to that onus see also Hayne J in CSR Limited v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [109]).

224. In any event, and putting aside questions of onus, as McHugh J said in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] (in a passage later referred to by the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [80]), “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome”. Where the issue is whether additional evidence and submissions could have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile: VAAD at [81] citing Kirby J in NAFF at [85]. It will be “no easy task” (Stead at 145) to satisfy a court that a denial of natural justice could have had no bearing on the outcome.

The reference to Aala was most recently re-endorsed in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51.


Indemnity costs against Minister for Immigration

In SZMJQ v Minister for Immigration (No.2) [2009] FMCA 1137 Raphael FM suggested that public law proceedings might not be amenable to Calderbank offers, but did not decide the point.

In SZPAD v Minister for Immigration [2012] FMCA 73, Smith FM did not explicitly decide the point but at [51]-[53] left open the possibility that indemnity costs might be awarded because of an unreasonable failure to accept an offer of compromise.

Neither SZMJQ nor SZPAD (insofar as it concerns this issue) appear to have been subsequently considered.

What is clear from SZMJQ at least is that any Calderbank offer must at least identify the ground upon which any offer to consent to remittal is to be based. Without this (for example, general reference to an application with multiple grounds), the Calderbank offer is uncertain and therefore cannot found a basis for indemnity costs.