Written Submissions

Written submissions

Written submissions are a very important tool in the migration context. I usually include written submissions in visa applications as a way of explaining to the case officer why it is that my client meets the criteria for a grant of a visa. Sometimes I use written submissions to pre-empt a problem that I think might arise.

Certainly in both merits and judicial review applications the AAT or the Court always direct the parties to prepare written submissions. In that “review context” they are even more important because there may be an error if an issue which you raise is not properly considered.

Even if you don’t want to engage me for your whole matter, clear and professionally written submissions can greatly assist your case. I would be happy to help you.

Writing well is a powerful tool in the practice of law. Just like oral advocacy, the purpose of written advocacy is to persuade and in order to be persuasive, the document must be useful for the intended reader. Written work that is dense, impenetrable, lacking cohesion or badly structured will rarely be useful and sometimes may be counter productive. A valuable opportunity to persuade will have been wasted, sometimes irredeemably.

From Justice Jennifer Davies “Effective and Persuasive Written Advocacy” 2013

Response to “natural justice letters”

Procedural fairness (or “natural justice”) is a very important concept in Australian law. At its most basic it means, that it is “unfair to deny a person whose interests are likely to be affected by [an adverse] decision an opportunity to deal with the information“. Section 57 Migration Act provides that an Applicant must be invited to comment on information which would be the “reason or part of the reason” for refusing to grant a visa.

The answer to those types of letters needs to be carefully considered and well drafted with an eye on the underlying legal principles, policies and in some cases ministerial directions. In addition, those types of submissions can in some instances form the basis for a further review application if the submissions aren’t accepted.

Character Matters

Character issues can arise in visa processing as a reason to refuse to grant a visa (and would be the subject of a s57 notice). Character can also be the reason for cancelling a visa. Ministerial Direction 90 (which took effect from Marc 2021) sets out the factors that decision makers have to consider in making a decision to refuse, or cancel, or revoke a cancellation. There are “primary considerations” (which get the most weight) and “other considerations” (which get lesser weight). It is very important that comprehensive written submissions are provided (within the timeframe set) which address, so far as they are relevant, the matters set out in the Ministerial Direction. I have a lot of experience in this area and would be happy to help you.

Ministerial Intervention

The Minister has power under the Migration Act (see for example sections 351 and 417) to grant any visa which he (or she) sees fit. This power is generally only exercisable after the avenues of review have been exhausted and only in limited circumstances. It is only exercisable by the Minister personally. Some of the circumstances include that there is some compassionate reason or the applicant is suffering an unintended consequence of the migration law. There are guidelines on how the discretion should be exercised and well written detailed submissions outlining why the applicant falls within those guidelines is essential if an application for intervention is to be made.