by Paul Cutler | Apr 14, 2022 | Uncategorized
In 2015, the Applicant was convicted of stalking and fined for common assault (it was unclear if that was a conviction or not). In his 2016, 2017 and 2018 visa applications the question about “any convictions” was answered “no”. However, in his 2019 application for a 485 visa the 2015 conviction was disclosed and this led inexorably to a refusal on the basis of PIC 4020 (false and misleading information had been provided). This is despite the usual arguments about the agent left the info off the earlier applications and “if I was dishonest I wouldn’t have disclosed it in 2019” type arguments.
However, things got off to a bad start in the AAT when the Member accused the Applicant of “playing games” by requesting an interpreter. It was one of those cases where the Applicant did speak good enough english (to meet the 485 requirements) but felt insecure about appearing in the Tribunal without one. Anyway things went downhill from there and 35 minutes later ex-tempore reasons were delivered (there were later written reasons) affirming the decision of the delegate.
The ground of review in the circuit court was “A reasonable bystander might apprehend – from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it – that the Tribunal might not have brought an open mind to its task“. That ground ultimately succeeded in the Full Court (see Chen v Minister [2022] FCAFC 41).
If nothing else the case is a good template for how to conduct an apprehended bias case. Judges were convinced to listen to the recording of AAT hearing and there was lots of argument about the “use of an intimidating, loud and/or rude, and incredulous or belittling tone“. Even though the matter has been remitted there is another 4020 battle ahead for this applicant.
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by Paul Cutler | Apr 8, 2022 | Uncategorized
Section 477 Migration Act provides a 35 day time limit on an appeal to the (former) Federal Circuit Court. Unlike reviews in the AAT that time can be extended if its “necessary in the interests of the administration of justice” to do so. In BTI15 v Minister [2022] FCAFC 49 the Applicant was 10 months and 29 days out of time.
The longer the time, the more “exceptional” the circumstances have before the court will grant an extension. BTI15’s explanation was that he had a history of mental health issues and had been hospitalised for mental illness. One may think that this would be considered an “exceptional” circumstance. Unfortunately for the Applicant, there was no clear evidence as to how his mental illness and hospitalisation prevented him from obtaining legal advice in a timely manner. The Court also noted that a consideration of the merits of the case was a factor to be taken into account, but with a long delay, “strong grounds” would be required. No strong grounds were found.
Ultimately the appeal was dismissed, there was nothing “exceptional” in BTI15’s case that would warrant a 11 month extension of time. The case is a useful discussion of how the jurisdiction in s477 should be exercised. However, better to avoid 477 at all if possible. Life will be a lot easier if you do things on time.
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by Paul Cutler | Mar 30, 2022 | Uncategorized
The Minister isn’t often an appellant from an AAT decision. However, when the AAT found that Ms Darnia-Wilson passed the character test despite a foreign conviction it was a “bridge too far”. The decision in Minister v Darnia-Wilson [2022] FCAFC 28 (heard by a full court at first instance) is interesting for 3 reasons:
Reason 1
The law in respect of foreign judgments and the character test was stated by Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33: “Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision“.
Reason 2
There was quite a sharp rebuke to the AAT, where at [21] the Court said: “in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152–153 [43] Gleeson CJ, Gummow, Kirby and Hayne JJ affirmed that the judicature exercises “control over administrative interpretation of legislation”. They said (at 153 [43]), in applying what Marshall CJ had held:
An essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers
Ouch!
Reason 3
Because the Tribunal made an error of statutory construction that has consequences beyond this particular case, a declaration was made: “that on its proper construction, s 501(7)(c) applies to a sentence to a term of imprisonment, whether imposed by an Australian or a foreign court“.
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by Paul Cutler | Mar 22, 2022 | Uncategorized
It’s a fairly common applicant’s complaint that the Tribunal didn’t consider [named issue]. Of all the things I’m ever asked to advise on, I always find this one of the most difficult. It also an area where I always feel that the odds are not in an Applicant’s favour. In RRFM v Minister [2022] FCAFC 27, the ground of appeal was that the primary judge didn’t properly consider the possibility of indefinite detention. RRFM is by no means a “landmark case” on this issue, but the difficulty of the argument is set out in the following dot points:
- there needs to be “an active intellectual process” with representations, consistently with the Full Court’s approach in Tickner v Chapman (1995) 57 FCR 451
- In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said at [89]: “Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case” & “will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons“.
- In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made”
And…. just to make it worse, just because it wasn’t referred to in the reasons doesn’t necessarily mean that an issue hasn’t been considered. Remember the “Oscar and Walter” post for example.
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by Paul Cutler | Mar 7, 2022 | Uncategorized
Expert evidence is difficult to deal with at the best of times, but it always seems to me that it’s more difficult to deal with in the context of administrative decision making because decision makers seem to be able to readily disregard it.
Mr Kahlil’s latest (he has quite a long immigration history) case in the Full Court illustrates the point. He was endeavouring to have the decision to refuse his partner visa on character grounds revoked. He obtained expert evidence from a clinical psychologist who concluded in her oral evidence that the applicant had only a remote chance of reoffending and a good chance of rehabilitating. You might think that was quite persuasive. Apparently not, with the member saying he was unable to accept the opinion that the applicant only has a remote chance of reoffending and remained very concerned by the seriousness of his offending and his oral evidence. That was the end of ground 1.
However, luckily the psychologist also gave evidence of behavioural or emotional disorders in children that are associated with “paternal incarceration” and that the children are at greater risk if their father were to be deported. This was an argument not raised at the first trial but leave to raise it in the appeal was (begrudgingly) given (see [34]-[37]).
That new ground succeeded and the crux of the judgment is at paragraph 73:
- Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations…. By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.
You can find the judgment at Khalil v Minister [2022] FCAFC 26.
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In 2015, the Applicant was convicted of stalking and fined for common assault (it was unclear if that was a conviction or not). In his 2016, 2017 and 2018 visa applications the question about “any convictions” was answered “no”. However, in his 2019 application for a 485 visa the 2015 conviction was disclosed and this led inexorably to a refusal on the basis of PIC 4020 (false and misleading information had been provided). This is despite the usual arguments about the agent left the info off the earlier applications and “if I was dishonest I wouldn’t have disclosed it in 2019” type arguments.
