by Paul Cutler | Dec 8, 2020 | Uncategorized
The issue of people being held on Manus or Nauru having their applications for medical treatment in Australia denied often receives media coverage. Likewise, there have been a number of cases where these people have made applications to prevent their return to Manus of Nauru. The short version of a long story is that there are several provisions in the Migration Act which are directed towards preventing litigation by these people (technically “transitory persons”) who are in the offshore processing regime .
Section 494AB is under a heading which says “Bar on certain legal proceedings relating to transitory persons” and the section starts with: “The following proceedings against the Commonwealth may not be instituted or continued in any court….[a list follows]”. My initial reaction was that this meant there was no jurisdiction (at least in the Federal Court) to entertain these matters. However, that’s not the view taken by the High Court in a number of cases heard together in Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43.
In essence, High Court has found by analogy with the law relating to limitation periods that a statutory bar does not extinguish a right or underlying cause of action or affect a court’s jurisdiction. In other words if a bar is pleaded in defence then it would go to the remedy available not to the jurisdiction.
So, it would be on the Commonwealth to raise a 494AB defence to proceedings started by a transitory person. One of the issues with that is that the Commonwealth is a model litigant and the High Court has pointed out that the defence should only be raised when it was consistent with those obligations. It seems to me (possibly incorrectly) that this means that 494AB has very little “work to do”. This is an interesting but very technical decision.
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by Paul Cutler | Nov 23, 2020 | Uncategorized
It is impossible in the space I allow for a blog post to do justice to the case of AJL20 v Commonwealth [2020] FCA 1305. However, everybody who has ever studied administrative law will know that (at least in Australia) there is no such thing as an unlimited power. ALJ20 is a case about the limits on the power in the Migration Act to detain unlawful non-citizens. ALJ20 is a Syrian national who had his permanent visa cancelled on character grounds, was then placed in immigration detention but who couldn’t be “refouled” (ie sent back) to Syria because of the protection obligations owed to him.
Section 189 Migration Act says that unlawful non-citizens have to be detained. Such a person can only be detained until they are removed from Australia (section 196) and that must occur “as soon as practicable” (section 198(6)). The issue before the Court was that in a situation where removal was practically impossible (my words) did the detention of AJL20 continue to be lawful? The answer, at least by Bromberg J at first instance is that AJL20’s detention wasn’t lawful and the court issued the writ of habeus corpus (to have him released). The judgment carefully examines the older “detention cases” (such as Al Kateb), the requirements for habeus corpus and the limits on administrative power.
This decision will have to end up in the appellate courts and I am sure that AJL20 is probably not the only person who is unlawfully being detained.
I am unsure of AJL20’s visa status. It appears he is in the community, without a valid visa and that it would be unlawful for the Commonwealth to further detain him. This is a very interesting case!
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by Paul Cutler | Oct 23, 2020 | Uncategorized
The activities of the (former) firm S&S Migration are so infamous that the Full Federal Court judgment in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 commences with: “…this is yet another case arising from the carnage left by the fraudulent conduct of S & S Migration.” It was not in dispute that the Applicant’s visa application had been lodged, by SSM and was based on deliberately false information.
In those circumstances you might have thought it would be relatively straightforward for the applicant to say “not my problem, the agent was a fraudster”. Unfortunately that’s not the only requirement. If the Appellant’s visa application was invalid because of third party fraud, then the fraud had to be both:
- one which was perpetrated on the Appellants; and
- which also stultified one or more aspects of the visa application and determination process.
The onus was on the applicant to prove that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). This means that the applicant must satisfy the court to the requisite standard that she or he was ‘neither complicit in the fraud nor “indifferent” to it”. Indifferent is a very broad term and means recklessly indifferent or “wilfully blind”.
Unfortunately for this applicant, the Federal Circuit Court did had found a number of discrepancies in documents and had found that the appellant was indifferent “about truthfulness and accuracy in documents, including affidavits filed in this Court”. The Full Court relied on those findings and found that the applicant hadn’t discharged his onus of proof. The appeal was dismissed.
Fraud is one of those things which is easy to allege but very difficult to prove. As this case also demonstrates, don’t even think about alleging it if you don’t come with “clean hands” (yes, I know, judicial review is not equity).
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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!.
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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.
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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.
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