Update on serve or give

by Paul Cutler | Apr 26, 2021 | Uncategorized

I have previously blogged about about the Full Federal Court decision in EFX17.

It was my view that the Full Court had it right and it was only procedurally fair that a requirement of “understanding” was implied in the giving of notices under the Migration Act. Unfortunately, the Minister didn’t hold the same view and appealed to the High Court . Even more unfortunately, the High Court agreed:

[25] When “giving” and “inviting” bear their ordinary meanings – respectively, of delivering and of requesting formally – with the implication that the delivery and request will be made in English, then it follows naturally that the expression “in the way that the Minister considers appropriate in the circumstances” is only concerned with the method of delivery and request rather than the content. As senior counsel for the respondent properly accepted, a requirement that the Minister consider the capacity of a person to understand the written notice or invitation would require more than physical delivery.
….. and ….
[31] For these reasons, the majority of the Full Court erred in reasoning that the capacity of a person to understand the written notice, particulars, or invitation described in s 501CA(3) was relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made. 

However, it wasn’t all bad news for EFX17, because the High Court also found it wasn’t made sufficiently clear to EFX17 when the 28 day period for responding was reckoned:

[42] For these reasons, an invitation to make representations “within the period … ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”. The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.

Back to the drawing board for the Minister!

Creative commons acknowledgement for the photograph.

Credibility reversed

by Paul Cutler | Apr 12, 2021 | Uncategorized

This is not the first time that I have blogged about credibility, but I re-iterate that (adverse) credibility findings are the bane of the applicant lawyer’s life. The main reason is that usually (there are exceptions) an adverse credibility finding by a delegate is a finding of fact and can’t be judicially reviewed.

The reverse problem occurred in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 where although the protection visa applicant was unsuccessful (because the country information for Sri Lanka indicated there was low risk to him), his story had been found plausible by the delegate who interviewed him. That finding of (positive) credibility was reversed by the review authority who only listened to an audio recording of the interview. Although all the High Court judges allowed the appeal, there were some differences in reasoning.

The majority view was that it was effectively legally unreasonable for the review authority to reverse the credibility finding (at least without conducting a further interview).

The judgment of Nettle J (starting at [35]) sets out the procedural history and summarises some useful authorities about the role of appeal bodies (around [60]+) and raises an administrative law elephant in the room – the role of materiality in the law of unreasonableness. It’s fairly clear procedural unfairness has to be material, but it’s not so clear for unreasonableness. In fact there is a whole separate academic controversy on this point which is discussed  by UNSW academic Lisa Crawford in her blog post – https://auspublaw.org/2020/10/how-should-a-court-respond-to-an-immaterial-error-of-law/

There were other lurking issues about whether it was actually within power for the review authority to conduct a new interview because it’s power was limited to considering only “new evidence” and it’s unclear whether a second interview would fall into that category.

This is really another one of those cases where the outcome was good for the applicant but it raises a number of other unresolved legal issues.

Back to the future

by Paul Cutler | Mar 22, 2021 | Uncategorized

A brief (recent) history of the regulation of the migration advice profession in Australia:

1. In 1992, the Migration Amendment Act (No 3) 1992 (Cth) introduced, the Migration Agents Registration Scheme;
2. Under that scheme, practising lawyers (who could previously give migration advice) were prohibited from doing so unless they were registered as migration agents;
3. In 1994, two Sydney solicitors unsuccessfully challenged the registration scheme in the High Court, arguing that it was beyond legislative power, infringed the implied freedom of communication and contravenes the freedom of intercourse guaranteed by s.92 of the Constitution. See Cunliffe v Commonwealth (aka “Migration Agents case”) [1994] HCA 44; (1994) 182 CLR 272;
4. Over the years there were a number of productivity commission reports about whether dual regulation was required;
5. Ultimately, in the early hours of today (22 March 2021), the Migration Amendment (Regulation of Migration Agents) Act 2020, came into force. The net effect of this is that: (a) lawyers can now provide immigration advice and assistance; (b) only non-lawyers need to be registered as migration agents; and (c) lawyers (at least those with unrestricted practising certificates) are not allowed to be registered;
6. [please proceed to 1 above]

As a result of all that, my 20 years (to the day – from 21 March 2001 to 21 March 2021) registration (formerly 0101077) has come to end. Of course, I will continue to provide migration advice and assistance but as a lawyer not an agent. I have to make a few changes to the structure of my practise and this website and blog will remain.

Creative commons acknowledgment for the photograph.

Personal costs

by Paul Cutler | Mar 17, 2021 | Uncategorized

Fraud or unreasonableness?

by Paul Cutler | Mar 2, 2021 | Uncategorized

Re-cancellation

by Paul Cutler | Feb 12, 2021 | Uncategorized

Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a “substantial criminal record”. The decision to cancel is discretionary and subject to review in the AAT (usually). So what happens when:

• a permanent visa is cancelled after the visa holder is convicted on several sexual assault charges and sentenced to imprisonment;
• he successfully seeks merit review in the AAT (so that the cancellation is set aside);
• then a few years later, he had a drink driving offence which again brought him to the Minister’s attention and resulted in the second cancellation of his visa. The drink driving offence by itself was not enough to trigger “bad character” but was taken into consideration with his previous offending.

He again seeks review of the decision and ultimately, the High Court (in Minister for Immigration and Border Protection v Makasa [2021] HCA 1) frames the question as (at [44]):

The determinative question therefore becomes whether, and if so when, the power conferred by s 501(2) of the Act, having once been exercised by the Minister or a delegate in the first instance or re-exercised by the AAT on review not to cancel a visa, can be re‑exercised by the Minister or a delegate to cancel the visa.

and the answer is (at [56]):

The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.

This basically means the power can only be used once. I will leave you to read the decision for all the analysis that led to that conclusion (which is more complicated than it first appears).

Creative commons acknowledgment for the photograph.