by Paul Cutler | Jan 27, 2023 | Uncategorized
How hard can it be to make a valid application to the AAT?
You might be forgiven for thinking that section 29(1)(c) of the AAT Act which says that an application “must contain a statement of the reasons for the application”, is clear.
Despite Mr Miller’s application not containing the reasons (which was agreed), a copy was later provided when the AAT requested it. That request came outside the 9 days timeframe allowed for lodging reviews of character cancellation matters.
The AAT proceeded to review his matter and affirmed the cancellation decision.
Miller appealed to the Federal Court. The Minister took the point that the AAT lacked jurisdiction because of non-compliance with s 29(1)(c) but accepted that there would otherwise be a jurisdictional error in the AAT decision. Derrington J found that 29(1)(c) was mandatory and dismissed the appeal.
In the Full Federal Court, Miller argued (for the first time) that writing the words “non-revocation of a visa cancellation” on the application form (he had used the incorrect form) was a sufficient statement of reasons. His appeal was dismissed, but not before the Full Court had considered:
- Project Blue Sky – whether “must” is mandatory will depend on statutory context;
- the other sub-sections of s29(1), finding that (a) (application in writing) and (d) (decision document shall be lodged in prescribed time) were mandatory , but that (b) payment of the fee, was not. The latter is because of sections 69C(1) and 70 which deal with timeframes for what happens if fees aren’t paid;
- s29(7)-(9) in relation to extensions of time; and
- s29AB being the AAT’s power to request amendment of the application.
In short, the Full Court agreed that 29(1)(c) was mandatory.
I come back to where this story started. Although mistakes can be made (apparently), it’s really not that hard to follow section 29 and make a valid application. You can read the Full Court decision here.
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by Paul Cutler | Dec 7, 2022 | Uncategorized
Visa cancellations on national security grounds are rare and they often raise complex issues at the intersection of procedural fairness and secret information. SDCV v Director General of Security [2022] HCA 32 was not an exception.
In 2018 (after his citizenship application was approved but before the ceremony), ASIO found that SDCV was a security risk as he had links to terrorism and had used a covert phone for some of his communications. His visa was cancelled and he unsuccessfully sought review in the AAT. The AAT conducted a partly closed hearing (without SDCV) and some “certificated” information was not disclosed to him. Open reasons affirming the decision were published along with separate “closed” reasons which were not disclosed to SDCV.
SDCV didn’t seek judicial review of the AAT decision but instead appealed the matter to the Full Federal Court under s44 AAT Act. This raised the issue which took the case to the High Court namely, whether 46(2) AAT Act was invalid. Section 46(2) says the Court will “do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”.
The High Court judgment is complicated and in the context of the short and informal nature of this blog, all I can do is give you a brief “executive summary”. There will undoubtedly be much ink spilled over this case if you are looking for something more detailed.
Whether or not 46(2)was invalid or not depended on whether there was a requirement of a minimum level of procedural fairness. This has been something which has been the subject of academic debate for a long time and it was my view (until now, at least) that procedural fairness can’t be totally excluded. However:
- The plurality (joint judgment of Justices Kiefel, Keane and Gleeson) said there was no minimum requirement and there was no practical injustice to SDCV. Amongst other things the balance of open justice/national security is a matter for the legislature and the impartiality of the Court was not affected;
- Justice Steward agreed that there was no universal baseline requirement but said it would only be in rare circumstances where a fair opportunity to respond would not be given. His Honour noted that there were a number of steps open to the Court (which were not taken) to ensure fairness including appointing special advocates or by disclosing confidential information to the lawyers only; and
- There were three dissenting judgments (Justices Gaegler, Gordon and Edelman) who each published separate reasons and found that 46(2) had compulsorily excluded fairness and was invalid.
I certainly don’t think of myself as a constitutional law expert but this decision appears to me to be out of step with how I understood there was a minimum standard of procedural fairness which could not be excluded. However, for now at least, procedural fairness can be excluded. It will be interesting to see how this develops in future cases.
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by Paul Cutler | Nov 23, 2022 | Uncategorized
The case of AEK20 v Minister [2022] FCAFC 175 is another decision that demonstrates the importance of providing evidence to support claims made in applications for revocation of a character cancellation.
AEK20 moved to Australia from Samoa at age 9 in 1999. In 2012 he pleaded guilty to a murder which was committed in the course of a violent home invasion. He also gave evidence against his co-offenders.
Because he had assisted police and given evidence against the co-offenders he claimed that he feared that he would be killed if he was returned to Samoa. His ground of appeal was effectively that the court at first instance hadn’t properly considered his claim that he would be inadequately protected in Samoa.
The main reasons for dismissing his appeal were set out in [16] of the judgement:
“…..The claim is limited to a subjective fear. The appellant did not claim that he would be “unable to access effective protection if returned to Samoa”. Nor did he claim that there was no form of witness protection available to him in Samoa. Moreover, those representations were not supported by any evidence which might have enabled the Minister to engage in any comparative analysis between Samoa and Australia concerning the risk of harm to the appellant or any analysis of the nature and extent of such risk. Nor was there any evidence of any threats of harm in Samoa, or who in Samoa would seek to harm him (the offending having occurred in Australia)”.
In many respects this amounts to the Applicant didn’t discharge their onus of proof. Evidence to support submissions is important!
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by Paul Cutler | Nov 9, 2022 | Uncategorized
The case of Toki v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 164 serves as a strong reminder of the importance of having corroborative evidence in an application to revoke a character based cancellation.
Toki had an extensive criminal history, including murder of his de facto wife. The Minister personally decided not to revoke the visa cancellation. Toki appealed to the Federal Court arguing that the Minister’s finding that he had no evidence of family support was legally unreasonable. This was because the Minister had access to Toki’s monthly progress reports, one of which mentioned ‘on going regular contact with family, including having an AVL with his sister and her family’.
The Federal Court and the Full Court rejected the appeal, Justices Markovic, Goodman and Raper held that:
- the Minister is not required to refer to every piece of evidence in his reasoning and the submission of the monthly progress report should not be deemed a mandatory consideration; and
- a single dot point in one monthly progress report is of limited value and is of markedly different quality to providing the Minister of corroborative evidence.
The motto of the story is proper preparation. Toki should have provided the Minister with statements and physical representations by family members to corroborate his claim of ongoing family support.
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by Paul Cutler | Oct 26, 2022 | Uncategorized
Since 2018, there have been a series of High Court cases (see Hossain, SZMTA and MZAPC) which have considered “materiality”. The basic proposition is that not only do Applicants have to find a jurisdictional error, but that error has to be material. This means that the Applicant bears the onus proof on the balance of probabilities to show that there was a realistic possibility that a different decision would have been made if the error hadn’t occurred.
It is now apparent from Nathanson v Minister for Home Affairs [2022] HCA 26 (the most recent High Court case on the topic) that in some circumstances the threshold of proving materiality will be “almost nothing”.
Nathanson was (yet another) character cancellation matter. Ministerial Direction 65 was current at the time of his visa cancellation. By the time of his AAT hearing that had been superseded by Direction 79. One of the differences in the two, was a change to the way that “crimes of a violent nature against women or children are viewed” in 13.1.1(1)(b) (i.e. very seriously regardless of sentence). Nathanson had been a domestic violence perpetrator and he was told by the Member that the changes to para 13.1.1 were “very minor”. However, this didn’t stop the Minister making submissions about it and the issue becoming decisive. In other words, there was a serious breach of procedural fairness.
En route to the High Court, the primary judge and the Full Court applied SZMTA and MZAPC and found that despite the error, materiality hadn’t been proved.
Although the High Court found in this favour 6:0, there were different reasons among the judges. The easiest one to explain is the judgment of Gaegler J who basically found that a serious breach of procedural fairness is itself material. This is the type of complex public law issue which will keep academics occupied for a long time. If you want to read something more than my blog, here is a link to an excellent short article.
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