by Paul Cutler | Sep 24, 2020 | Uncategorized
The combined effect of section 66(2)(d) of the Migration Act and the associated regulations is that there is a strict (non-extendable) 21 day period in which an application for merits review can be lodged with the AAT. If an application is made outside of that time the AAT is without jurisdiction.
While that seems simple enough there are a number of Full Court cases where it has been argued that the refusal letter didn’t comply with 66(2)(d) and as a result, no proper notice had been given and time hadn’t started to run. The most recent of these cases is Singh v Minister for Immigration and Border Protection [2020] FCAFC 31. Singh in turn considered two previous cases: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189.
Section 66(2)(d)(ii) provides that the notice of decision must “state … the time in which the application for review may be made”. Although you wouldn’t think that would be difficult to comply with, in DFQ17 Perram J found that the information in the notification letter was complete, but it was held not to have been clear. Clarity was absent because the letter was found to be “piecemeal, entirely obscure and essentially incomprehensible”. A similar “letter not clear” finding was also made in BMY18.
Unfortunately for the appellant in Singh, the complaint about the format of the notification letter was held to be sufficiently clear and his appeal failed. However, while my experience is that refusal letters follow a template, it is worth checking whether or not they are “clear”. Of course the best way is always just to make sure you lodge your review application in time. If in doubt – do it earlier!.
Creative commons acknowledgment for the photograph.
by Paul Cutler | Aug 28, 2020 | Uncategorized
Much to the frustration of many clients, fact finding by the AAT is not normally able to be challenged in judicial review proceedings in the courts. One very limited exception to that proposition is if the fact finding is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. Those grounds are very difficult to make out. There are at least two additional matters which have to be considered:
- it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions. So, if different reasonable people could have come to a different finding then the fact finding is not “illogical”; and
- the error has to be “material” to the decision made. So, if the same decision would have been made even if the error hadn’t occurred then there is no jurisdictional error.
Some of the authorities on those two points are conveniently summarised in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at paragraphs [59] and following.
The issue in Gill was whether Mr Gill had provided a bogus work reference about his experience as a cook. The Full Court found there was a clear communication error between the Applicant and the Tribunal and it was “illogical” for the Tribunal to make credibility findings based on that misunderstanding. The error was that the Applicant was talking about “rissoles” while the Tribunal thought he was talking about “risotto” (see [69] and following). It is little wonder that the Tribunal couldn’t comprehend why rice and flour were being used to make risotto. It is also apparent that that this misunderstanding was relevant to whether the Tribunal believed the Applicant had skills as a cook.
This is a very unusual case and is an example of the circumstances in which fact finding can be found to be illogical.
Creative commons acknowledgment for the photograph.
by Paul Cutler | May 29, 2020 | Uncategorized
Makhmudkhodjaeva v Minister [2020] FCAFC 88 is a recent Full Court case about refusal to approve a sponsorship in relation to a child visa. If the child’s mother had a partner (either de facto or by marriage) then that person (Mr M) would need to meet the character test. The interesting issue in this case is that the mother denied she was in de facto relationship despite the facts that:
- she and Mr M shared a household together (and lived at the same address);
- Mr M provided financial support;
- Mr M was the father of two of her children.
It sounds like a de facto relationship doesn’t it? Those “bare facts” didn’t reveal that Mr M was in prison serving a seven year sentence. Once the fact of imprisonment came to light, the Full Court found that:
- the Tribunal should have explored the nature of the relationship and considered the criteria in section 5CB(2) Migration Act. The factors in that section include whether there is a mutual commitment to a shared life to the exclusion of all others, whether that relationship, was genuine and continuing and whether they did not live separately and apart on a permanent basis;
- however, the Tribunal only looked at factors 1-3 above (and didn’t dig deeper);
- The Court found that: “Depending on the factual situation of a relationship between parties, a decision-maker could regard a prison sentence as being merely a temporary interruption for its duration in what is a mutual commitment to a shared life to the exclusion of all others in a genuine and continuing relationship or as having precipitated or evidenced a permanent separation.“
The ultimate result was that this failure to consder 5CB was a jurisdictional error, the appeal was successful and the matter was remitted to the Tribunal to be considered in accordance with the law.
Creative commons acknowledgement for the photograph.
by Paul Cutler | Apr 14, 2020 | Uncategorized
From the time that an application for review is lodged in the AAT to the time it is determined in a hearing is “around 470 days” (or about 15-16 months).
There are however, provisions for “priority processing” and for a “fast track decision”. These are both separate processes. The guidelines for priority processing are set out in a President’s Direction. The requirements for a fast track decision are:
“A fast track decision is one where the Department of Home Affairs refused the application because of a discrete criterion that does not require a subjective assessment, and evidence has now been given to the Tribunal that unequivocally satisfies the objective criterion in dispute. For example, if a visa application was refused only because suitable evidence of an English test result was not given to the delegate, and evidence of that suitable test result is now given to the Tribunal, a fast track decision may be possible.
A fast track decision cannot be made where a subjective assessment of criteria is required (eg. genuineness); or where the Tribunal must consider all relevant criteria in order to reach a favourable decision (eg. Employer nomination/sponsorship).”
I am grateful for the MIA bringing this to the attention of its members in its notice which was circulated to members this morning.
by Paul Cutler | Mar 25, 2020 | Uncategorized
The general rule when applying for visas onshore is that you need to hold a valid visa to be able to apply for a visa of a different class. One of the exceptions is applications for a partner visas. However, if you don’t hold a substantive visa when you apply for your partner visa, you will still need to comply with the schedule 3. That basically means that you have a 28 day period of grace after the expiry of your last substantive visa. The good news is that schedule 3 can be waived if there are compelling circumstances.
What makes circumstances compelling is very subjective and depends on the facts of each case.
One might think that it would be a compelling circumstance if there was an Australian citizen child of the relationship. This is not necessarily the case as the applicants in the recent full Federal Court case of Singh v Minister for Home Affairs [2020] FCAFC 7 found out. The AAT found that they had the child to “bolster” their chances of success in their application. The Federal Court agreed (it’s actually a bit more complicated than that), but the following submission from the Minister was accepted:
[89] It was submitted that the question of the motivation for having the child was not determinative of the Tribunal’s conclusion that “compelling reasons” did not exist. It was that the parties chose to have a child (or, more accurately, successfully attempted to have a child) knowing that the appellant may have to go off-shore to make a further application that rendered the circumstances devoid of the required characteristic. The effect of the Tribunal’s reasoning is that the circumstance that there was a child of the relationship was not compelling when the parties sought to have that child knowing that the appellant was not a resident and knowledgeable of the requirement that he may have to go off-shore in order to apply for a permanent visa.
If you have run foul of schedule 3 I can help you with some professional advice on what’s relevant (or not).
Creative commons acknowledgment for the photograph.
