The privilege against self-incrimination
The privilege against self-incrimination applies at the tribunal level and by way of example in partner cases
By Lorenzo Boccabella, BA, LLB, a specialist in migration law (14 January 2021)
In cases involving partner visas, the spouse is entitled to be warned about the right to claim privilege against self incrimination. Failure of the tribunal to acknowledge and act on that right is an error. This principle was set out by Allsop CJ in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480. Allsop CJ also gave an excellent rendition of the application of the principle that the best interests of a child is a primary consideration.
In Promsopa the applicant had her visa cancelled because it turned out that before her permanent residence partner visa was granted, her relationship with the sponsor had already broken down. By the time of visa grant she was already in a separate spousal relationship with another man, a UK citizen with whom she later went to have a child, who, of course, was an Australian born Australian citizen.
During the hearing the tribunal member questioned the former visa holder about her continuing to receive social welfare payments as a sole parent post visa cancellation. Social security law prevents a person obtaining a sole parent benefit if the person is not a permanent resident. Through its questioning of the unrepresented review applicant, the tribunal obtained admissions to that effect. As a result the AAT made this finding:
“The Tribunal also notes that there are other breaches of the law as the applicant’s evidence is that she has not informed Centrelink about her visa status. The Tribunal finds that the applicant has not been truthful in her dealings with these government agencies.”
In this regard Allsop CJ noted:
“The privilege against self-incrimination is a fundamental common law right: Sorby v the Cwth [1983] HCA 10; 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ) and 311 (Murphy J); Reid v Howard [1995] HCA 40; 184 CLR 1 at 11–12 (Toohey, Gaudron, McHugh and Gummow JJ); and Meneses v Directed Electronics OE [2019] FCAFC 190; 273 FCR 638 at [85]–[87]. It is not merely a rule of evidence available in judicial proceedings but is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question: Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at [44]. The Tribunal is not bound by the rules of evidence, but this does not allow a Tribunal to require a witness to answer questions which exposes her or him to self-incrimination. The privilege against self-incrimination has also been recognised in statute, most particularly in ss 62(3) and 62(4) of the Administrative Appeals Tribunal Act 1975. Also, s 371(2)(c) of the Act provides that it is an offence for a witness to fail to answer a question of the Tribunal for the purposes of a review under Pt 5 of the Act. Section 371(3), however, provides an exception to this offence where “answering the question might tend to incriminate the person”.”
Ultimately Allsop CJ concluded:
“45.The Tribunal was required to inform Ms Promsopa of her right to refuse to answer questions before it embarked on the questioning of the kind seen at line 182 of the transcript. Ms Promsopa was treated unfairly. The Tribunal’s failure to give that warning caused Ms Promsopa not just practical, but real, injustice. The finding was material to the Tribunal’s ultimate conclusion and the evidence procured left Ms Promsopa liable to prosecution under the Code. The Tribunal’s decision should be set aside and the matter remitted to the Tribunal for a hearing in which Ms Promsopa is afforded procedural fairness.”
Although not specifically stated in the judgment, the related issue to the privilege against self-incrimination is the presumption of innocence.
The case also raised issues about the best interests of the Australian citizen child. Apparently the AAT made some pungent remarks about the pedigree of the citizenship of the child, presumably on the basis that had the Immigration known the spouse was no longer in a spousal relationship with the sponsor the permanent residence visa would never have been granted and consequentially when the child was born, albeit with a temporary visa holder as a father, then the child would not have been an Australian citizen at birth. In this regard Allsop CJ stated:
“56.I note that the Tribunal at [49] of its reasons made some concerning remarks about the citizenship of Ms Promsopa’s child and the means by which she obtained citizenship. The child is a citizen of Australia. There is no reason to distinguish her from any other child who is a citizen of Australia. Her best interests should be assessed in accordance with her status as an Australian citizen.”
The court was particularly critical of the AAT’s approach to the best interests of the child. The Court stated:
“60.the Tribunal acknowledged that the best interests of the child was a primary consideration. In doing so, it was required to give proper, genuine and realistic consideration to the best interests of the child. The one-dimensional approach taken by the Tribunal in its reasons did not satisfy this requirement.”
The judgment also refreshes the principles outlined in Teoh’s case and puts Teoh in context with more recent decision of the Federal Court.
These and other issues are discussed in the partner visa intensive.