Submissions

In a presentation given by Justice Jennifer Davies in 2013 her Honour outlined the importance of effective and persuasive written advocacy in the following terms:

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.

There are a number of times when written submissions are important in the migration context. For instance I often include written submissions in visa applications as a way of explaining to the case officer why it is that a particular applicant meets the criteria for a grant of a visa. Written submissions are also important in both merits and judicial review applications and do often influence the outcome of those cases.

However, there are two further areas where I can assist you in drafting written submissions.

Response to “natural justice letters”

Procedural fairness (which is part of the requirements of natural justice) is a very important concept in Australian law. At its most basic it means, that if the department has information that is both “credible, relevant and significant” and is “adverse” to the applicant, then it is “unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information“. In other words, the applicant must be given the opportunity to consider and explain their side of the story.

There are a number of contexts in migration law when visa applicants or visa holders will receive “natural justice” letters. Two of the more common ones are:

  • in the context of character (visas can be refused or cancelled if an applicant is not of good character); and the other is
  • when the Department suspects that false information or “bogus” documents (actually a defined term in the Migration Act) has been provided.

These letters typically say something along the lines of “The Department is considering refusing your visa application (or cancelling your existing visa) for the following reasons….. Please tell us why we shouldn’t”.

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.

Ministerial Intervention

The Minister has power under the Migration Act 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.