by Paul Cutler | Mar 22, 2022 | Uncategorized
It’s a fairly common applicant’s complaint that the Tribunal didn’t consider [named issue]. Of all the things I’m ever asked to advise on, I always find this one of the most difficult. It also an area where I always feel that the odds are not in an Applicant’s favour. In RRFM v Minister [2022] FCAFC 27, the ground of appeal was that the primary judge didn’t properly consider the possibility of indefinite detention. RRFM is by no means a “landmark case” on this issue, but the difficulty of the argument is set out in the following dot points:
- there needs to be “an active intellectual process” with representations, consistently with the Full Court’s approach in Tickner v Chapman (1995) 57 FCR 451
- In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said at [89]: “Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case” & “will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons“.
- In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made”
And…. just to make it worse, just because it wasn’t referred to in the reasons doesn’t necessarily mean that an issue hasn’t been considered. Remember the “Oscar and Walter” post for example.
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by Paul Cutler | Mar 7, 2022 | Uncategorized
Expert evidence is difficult to deal with at the best of times, but it always seems to me that it’s more difficult to deal with in the context of administrative decision making because decision makers seem to be able to readily disregard it.
Mr Kahlil’s latest (he has quite a long immigration history) case in the Full Court illustrates the point. He was endeavouring to have the decision to refuse his partner visa on character grounds revoked. He obtained expert evidence from a clinical psychologist who concluded in her oral evidence that the applicant had only a remote chance of reoffending and a good chance of rehabilitating. You might think that was quite persuasive. Apparently not, with the member saying he was unable to accept the opinion that the applicant only has a remote chance of reoffending and remained very concerned by the seriousness of his offending and his oral evidence. That was the end of ground 1.
However, luckily the psychologist also gave evidence of behavioural or emotional disorders in children that are associated with “paternal incarceration” and that the children are at greater risk if their father were to be deported. This was an argument not raised at the first trial but leave to raise it in the appeal was (begrudgingly) given (see [34]-[37]).
That new ground succeeded and the crux of the judgment is at paragraph 73:
- Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations…. By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.
You can find the judgment at Khalil v Minister [2022] FCAFC 26.
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by Paul Cutler | Mar 4, 2022 | Uncategorized
In considering whether or not to revoke a visa cancellation, regard has to be had to the considerations contained in a published Ministerial Direction. There are a number of primary and also “other” considerations (about ties to Australia and impediments to return) which have to be taken into account. One of the more unusual factors that I have seen raised in argument was in Pearson v Minister [2022] FCAFC 22 where Ms Pearson claimed that the psychological and emotional impact of separation from her two dogs (Oscar and Walter) was a factor in favour of the revocation.
The AAT decision made no reference to Oscar and Walter. The issue on judicial review then becomes whether the claim had been considered. Administrative decisions are different to judgments and if there is no finding on a particular fact it could be inferred that the fact was not considered (a “Yusuf inference”). However, just because something is not referred to in the reasons, doesn’t mean it hasn’t been considered.
There is an interesting distinction in the way the primary judge and the Full Court dealt with this issue:
- The primary judge (Markovic J) found that the claim had been “clearly articulated” and went on to consider whether the failure to refer to it was material to the decision;
- The Full Court, agreed that it was clearly articulated but decided that simply because it wasn’t referred to in the reasons (but having regard to the way the case had been conducted) didn’t mean that there was a “failure to consider” jurisdictional error.
Either way, it hasn’t ended well for Ms Pearson.
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by Paul Cutler | Mar 1, 2022 | Uncategorized
Merits review of character cancellation decisions in the AAT run to a strict case management timetable which is set out in section 500 Migration Act. It is a requirement that the tribunal give a decision within 84 days of the commencement of proceedings (500(6L)(2)). Anyone who has done any litigation would realise that is really fast tracked case management. It is not very much time to have a directions hearing, prepare evidence on both sides, issue requests for documents and to conduct a hearing and give a decision.
One of the “traps” is section 500(6H) which basically says the AAT can’t consider any oral evidence unless a written statement of the evidence is provided 2 days prior to the hearing. The interpretation of 500(6H) was the subject of a Full Court decision (yesterday) – Minister for Immigration v DOM19 [2022] FCAFC 21. The decision makes it clear that unless there is a written statement of the witness’s evidence no oral testimony will be allowed. The Court also notes that there is a “work around” in the sense that the AAT could adjourn for 2 days to regularise the position. I have had first hand experience of this happening in one of my matters.
While that is true, the 84 days continues to count down. There is already law to the effect that it is possible for the AAT to deliver a decision within 84 days and then provide reasons later (see Khalil v Minister for Home Affairs (2019) 271 FCR 326). The problem with that of course is that erodes the time available to consider any appeal to the Federal Court (which runs from the date of the decision). There is provision to appeal out of time, and hopefully the late delivery of AAT reasons would be a sufficient justification for being late. Needless to say its difficult to prepare appeal grounds when there are no reasons published.
When this happens it only gets worse for Applicants!
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by Paul Cutler | Feb 25, 2022 | Uncategorized
The title of this post is borrowed from the title of a 2009 paper by University of Melbourne academic, Michelle Foster. It was also prompted after reading the recent High Court decision in Chetcuti v Commonwealth of Australia [2021] HCA 25.
Chetcuti was born in Malta in 1945 and moved to Australia in 1948 where (apart from a couple of months in Malta in 1958) he lived continuously. As a result he was a British subject. In the intervening 70 (odd) years there have been lots of changes to the various “citizenship acts”, migration legislation and the law in respect of “aliens”. Unfortunately, Chetcuti never became an Australian citizen (although he could have).
As a result, when he was released from jail in 2017 after serving a 24 year sentence for murder, his absorbed person visa was cancelled (3 times actually – there were several review applications). I don’t intend to delve into the arguments before the High Court.
Instead, I want to make a couple of policy observations. I understand the visa cancellation power is an important one and everyone (including non-citizens) is expected to obey the law and the community should be safe. I don’t have any problems with cancelling visas and deporting people who don’t have long term ties to Australia and who commit serious offences. Chetcuti is “effectively” an Australian and had practically lived his whole life here. At what point should the policy be that someone like this is a homegrown problem and should be dealt with as such? What is the real utility of sending a 76 year old back to a country where he has no ties? He served his sentence.
Over the years I have been doing migration work, it is my perception that the 501 cancellation power is being used more frequently and the ‘threshold” of seriousness (to trigger the discretionary use of this power) has decreased. I know there are policy directions about the use of the power and there is a body of law established by the numerous review cases. I am just thinking that something’s not quite right.
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by Paul Cutler | Dec 15, 2021 | Uncategorized
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 is a long (5
judgements each of 100’s of paragraphs) decision of the Full Federal Court about the exercise of the Minister’s personal discretionary powers to grant a visa (sometimes referred to in the media as “God powers”).
There are several sections of the Migration Act which confer on the Minister an “extraordinary power of last resort” to grant a visa if it is in the public interest and after all the other statutory processes have been exhausted. The power which was the subject of the Davis case was section 351.
Not all requests for Ministerial intervention actually land on the Minister’s desk for consideration. There are published guidelines as to the type of cases that the Minister wants to consider. As a result, there is a “procedural decision” (made by departmental officers) before any matter is referred to the Minister for substantive decision. The making of that procedural decision is an exercise of a non-statutory executive power.
The question which arose in Davis was whether the procedural decision was amenable to judicial review and if so, whether the law of unreasonableness applied. In coming to the answer “yes” (i.e. the procedural decision was reviewable and subject to reasonableness), the judges embarked on a long and detailed analysis of the very foundations of judicial review. You have to like a judgment that refers to a 1597 UK decision, Rooke’s Case (about London sewers).
Unfortunately for Mr Davis (and the co-appellant DCM20), the decision not to refer the matter to the Minister wasn’t unreasonable.
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It’s a fairly common applicant’s complaint that the Tribunal didn’t consider [named issue]. Of all the things I’m ever asked to advise on, I always find this one of the most difficult. It also an area where I always feel that the odds are not in an Applicant’s favour. In RRFM v Minister [2022] FCAFC 27, the ground of appeal was that the primary judge didn’t properly consider the possibility of indefinite detention. RRFM is by no means a “landmark case” on this issue, but the difficulty of the argument is set out in the following dot points:
