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 By the time of his AAT hearing that had been superseded by Direction 79.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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by Paul Cutler | Oct 12, 2022 | Uncategorized
One of the issues that weighs heavily against revoking a cancellation decision (under Direction 90) is if there have been any instances of family violence. Mr Deng’s visa was cancelled on the the grounds that he assaulted his girlfriend, Ms S. The main issue (see Deng v Minister for Immigration [2022] FCAFC 115) was whether an intimate partner should be considered a family member for the purposes of Direction 90. Whilst “member of a person’s family” is not defined in Direction 90, s 5G of the Migration Act provides that certain persons, including a de facto partner, are taken to be members of a person’s family. Ms S and the appellant were not in a de facto relationship. The Tribunal considered Ms S to be a family member of the appellant, stating that she was the applicant’s intimate partner meaning his violence against her was an act of family violence.
The appeal was allowed as it was found that the Tribunal’s error in classifying Ms S as a family member was a material error. The outcome for the appellant would have been different had Ms S not been considered a family member, as the assault would not have been classified as family violence.
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by Paul Cutler | Sep 28, 2022 | Uncategorized
Whether a claim is clearly articulated or not is becoming a hot topic after the M1 decision. In HRZN v Minister for Immigration [2022] FCAFC 133, the Vietnamese appellant had lived in Australia since he was a child and had two adult Australian citizen children. His visa was cancelled on character grounds in trying to persuade the AAT that there was “another reason” to revoke the cancellation he raised issues about impediments to returning him to Vietnam and also Australia’s non-refoulemnent obligations.
There were two grounds of appeal:
- firstly, that it was unlikely that the Appellant (who was suffered from Hepatitis B and D) would have access to treatment for this condition in Vietnam and that it was “unlikely” that he would be able to access the anti-viral medication he requires, with the consequence that his health would likely be adversely affected; and
- the second ground was that as a drug user the Appellant risked: punishment; “mistreatment, ostracisation and harm from the authorities in Vietnam”; and, in particular, “beatings, forced labour … and prolonged arbitrary detention in a compulsory drug treatment centre”.
The problem with the first ground was that the Minister’s submission that the claim was expressed “at a high level of abstraction” was accepted. Non-refoulement obligations are not things in the abstract. They do not arise simply because a person will suffer hardship. They arise having regard to the precise terms of the obligations which are engaged by the ratification of a particular convention. The Full Court found: “We are not persuaded that, before the Tribunal, the appellant clearly articulated a substantial or significant claim that Australia had non-refoulement obligations under the ICCPR or CAT by reason of the limited medical treatment that he might be able to access in Vietnam, or that such a claim clearly emerged (or was squarely raised) on the materials before the Tribunal“.
The second ground was also dismissed but on the very technical ground that although the AAT did misunderstand (this was conceded) the scope of Australia’s un-enacted international non-refoulement obligations, it was not a jurisdictional error. This comes about because in considering the “harsh and degrading conditions” in drug rehabilitation centres, the Tribunal was not considering a mandatory relevant consideration. Therefore it was an error within jurisdiction.
Once again, the case demonstrates the need for thorough preparation of an AAT case. Of course it can be very difficult to get proper evidence about things like the availability of medical treatment from overseas in the limited time which is allowed for review of 501 matters in the AAT.
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by Paul Cutler | Sep 14, 2022 | Uncategorized
In my last post, I blogged about the High Court case of M1 and what was said about the duty of decision makers (and the AAT) to consider a “clearly articulated claim”. The question for the Full Federal Court in Knight v Minister for Immigration [2022] FCAFC 127 was effectively “how clearly” does a claim have to articulated?
Ms Knight is (another) New Zealander with a character cancellation problem who contended there was “another reason” to revoke her visa cancellation. She had been the victim of childhood sexual abuse in NZ.
In the AAT her submissions referred (fleetingly) to the applicant’s “childhood history and traumatic experiences” as “extra factors that would make it more difficult” for the applicant to set up a new life in New Zealand. In the Court her argument was that the Tribunal had failed to consider her claim that, if she were to be removed to New Zealand, she would suffer future trauma based on her previous sexual abuse at the Weymouth Girls Home.
The Minister acknowledged that issues about childhood sexual abuse had been raised in the AAT but said that the Applicant did not elaborate on them. The Full Court held that the applicant did not advance a substantial and clearly articulated claim that, if she were to return to New Zealand she would suffer future trauma based on her previous sexual abuse as a child. The Court found that the Tribunal did not fail to exercise its statutory review function by not addressing Ms Knight’s claim.
In some respects I see this decision as a bit harsh. One the other hand it demonstrates that you need to take a lot of care in considering how arguments are presented to the AAT.
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by Paul Cutler | Aug 31, 2022 | Uncategorized
The High Court case of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 deals primarily with how decision makers should deal with non-refoulement (protection) claims in the context of whether a visa cancellation on character grounds should be revoked or affirmed. This is one of the “other considerations” which arise for consideration in Direction 90. There is a distinction between claims (or circumstances) which are made under un-enacted international obligations (which don’t have to be considered) and those made under domestic law which do have to be considered. The decision maker can consider the claim in substance or it can be deferred if there is a possibility that a protection claim will be made in the future.
The High Court at [23]-[24] (references omitted) has summarised the obligations on decision makers who consider representations made by applicants. It is well established that:
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- a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
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- the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Although the Applicant was not successful, there is a powerful dissenting judgment by Edelman J (starting at [48]) (with whom Gleeson J agreed). His Honour said there was no dispute that the Applicant’s life was in danger if returned to Sudan and that “process‑related powers and duties must be exercised or performed reasonably just as outcome‑related powers and duties must be exercised or performed reasonably”. His Honour was clearly of the view that the Minister had acted unreasonably. Unfortunately this really (in my view) highlights the shortcomings and subjective nature of judicial review.
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by Paul Cutler | Aug 17, 2022 | Uncategorized
Exercising discretion
KXXH v Minister [2022] FCAFC 111 is another case of a Kiwi with a character cancellation problem. This case was about whether or not the interests of his grandchildren had been properly considered and highlights the difficulties in trying to find a jurisdictional error amongst Tribunal reasons. I let some of the paragraphs from the judgment speak for themselves…
- This is a case where, to adapt the words of the Court in Navoto, it is necessary to make a decision as a matter of impression, including by inferences to be drawn from the manner in which the appellant’s case unfolded before the Tribunal and the structure, tone and content of its reasons. While it is not straightforward to determine whether the reasons here fall ‘on the wrong side of the line’, on balance we consider that they did not. Two principles emerging from the summary above are particularly important to that conclusion. The first is that it is the reality of the consideration that is important, not necessarily the manner in which it is (or is not) expressed. The second is that the degree of consideration required depends on the centrality of the matter to the issues that arise in the review………
- In light of all that, the brevity with which the Tribunal dealt with the interests of MS’s grandchildren at paragraphs 134 and 135 is unsurprising. It does not by itself bespeak any failure to read, identify, understand and evaluate the material that was before it as to those interests. It is more likely to reflect a decision by the Tribunal to give little weight to those interests in the context of the matter as a whole. The Tribunal explicitly said that this is what it had decided to do. That decision was open to the Tribunal….
- It is true that there are aspects of paragraphs 134 and 135 of the Tribunal’s decision that are problematic. They appear to give priority to the interests of the nieces and nephews over those of MS’s grandchildren, although it had no information whatsoever about the interests of the former, even information about whether they were indeed children………
- The Tribunal’s written reasons were, with respect, deficient in that regard. But in light of the matters canvassed above, these are deficiencies in expression, rather than an absence of real consideration of the interests of MS’s grandchildren. They do not constitute error of a kind that the Parliament is to be taken to intend to invalidate the Tribunal’s exercise of power under s 501CA(4) of the Act. Therefore, the primary judge was correct to conclude that the appellant had not established jurisdictional error in relation to the Tribunal’s consideration of the interests of MS’s grandchildren. The appeal should be dismissed, with costs.
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