Paul Cutler's Migration Law Blog

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Bar the remedy not the right

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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Illegally Detained

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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Allegedly a victim of fraud

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:

  1. one which was perpetrated on the Appellants; and
  2. 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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Complete but not clear

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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Jurisdiction and the risotto

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:

  1. 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
  2. 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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Not necessarily de facto

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:


  1. she and Mr M shared a household together (and lived at the same address);
  2. Mr M provided financial support;
  3. 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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AAT Procedure

From the time that an application for review is lodged in the AAT to the time it is determined in a hearing is “around 470 days” (or about 15-16 months).

There are however, provisions for “priority processing” and for a “fast track decision”. These are both separate processes. The guidelines for priority processing are set out in a President’s Direction. The requirements for a fast track decision are:

“A fast track decision is one where the Department of Home Affairs refused the application because of a discrete criterion that does not require a subjective assessment, and evidence has now been given to the Tribunal that unequivocally satisfies the objective criterion in dispute. For example, if a visa application was refused only because suitable evidence of an English test result was not given to the delegate, and evidence of that suitable test result is now given to the Tribunal, a fast track decision may be possible.

A fast track decision cannot be made where a subjective assessment of criteria is required (eg. genuineness); or where the Tribunal must consider all relevant criteria in order to reach a favourable decision (eg. Employer nomination/sponsorship).”

I am grateful for the MIA bringing this to the attention of its members in its notice which was circulated to members this morning.

Schedule 3

The general rule when applying for visas onshore is that you need to hold a valid visa to be able to apply for a visa of a different class. One of the exceptions is applications for a partner visas. However, if you don’t hold a substantive visa when you apply for your partner visa, you will still need to comply with the schedule 3. That basically means that you have a 28 day period of grace after the expiry of your last substantive visa. The good news is that schedule 3 can be waived if there are compelling circumstances.

What makes circumstances compelling is very subjective and depends on the facts of each case.

One might think that it would be a compelling circumstance if there was an Australian citizen child of the relationship. This is not necessarily the case as the applicants in the recent full Federal Court case of Singh v Minister for Home Affairs [2020] FCAFC 7 found out. The AAT found that they had the child to “bolster” their chances of success in their application. The Federal Court agreed (it’s actually a bit more complicated than that), but the following submission from the Minister was accepted:

[89] It was submitted that the question of the motivation for having the child was not determinative of the Tribunal’s conclusion that “compelling reasons” did not exist.  It was that the parties chose to have a child (or, more accurately, successfully attempted to have a child) knowing that the appellant may have to go off-shore to make a further application that rendered the circumstances devoid of the required characteristic.  The effect of the Tribunal’s reasoning is that the circumstance that there was a child of the relationship was not compelling when the parties sought to have that child knowing that the appellant was not a resident and knowledgeable of the requirement that he may have to go off-shore in order to apply for a permanent visa.

If you have run foul of schedule 3 I can help you with some professional advice on what’s relevant (or not).

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Serve or give?

Many of the court decisions about visa cancellation on character grounds are focussed on the reasons for the cancellation. However, once a cancellation decision is made, section 501CA(3) Migration Act requires the Minister to, as soon as practicable after making the decision to “give the person, in the way that the Minister considers appropriate in the circumstances….” notice (and particulars) of the decision and invite the person to make representations.

The basic facts of EFX17 v Minister for Immigration and Border Protection [2018] FCCA 3179 appeared to be unremarkable. A Hazaragi speaking Shia Muslim Afghan man of Hazara ethnicity was given his “cancellation papers” by a corrective services officer in an interview room in the Brisbane Correctional Centre.

One of the issues in EFX17 was whether the requirement to “consider appropriate” was itself a decision which was reviewable independently of the cancellation decision. A majority of the Full Federal Court, Rares and Greenwood JJ said the answer to the question was “yes” for the reasons set out below:

  1. To be reviewable, the decision had to be one of an “administrative character” as required by s474(2);
  2. the Court found that the things required under 501CA(3) were within the meaning of 474(3)(g) “doing or refusing to do any other act of thing”;
  3. The obligation on the Minister was not simply one of “service”, it was a requirement to “give notice”;
  4. the Minister failed to consider the EFX17’s literacy (he was illiterate in his native language), capacity to understand English, mental capacity (there had been mental health issues), incarceration and the facilities available to him to seek relevant advice;
  5. there is an “irreducible minimum standard” that the Minister did not meet;
  6. in those circumstances, the Court found that there was a jurisdictional error.

There was also a dissenting judgment from Logan J.

The decision is good news as far as procedural fairness is concerned. It means that careful consideration needs to be given not just to the cancellation decision, but also to the “giving” of information to the person affected.

There was a second issue in EFX17 concerning the validity of delegation of tasks to correctional service officers. I will blog about that on another day.

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Both the Migration Act and the Australian Citizenship Act rely on power to make laws with respect to “naturalisation and aliens” (section  51(xix) of the Constitution).

The High Court today (11 February 2020) has handed down a very interesting decision in relation to the question of who is an alien. Both of the Plaintiffs (who were not related to each other) were:

  1. born outside of Australia, one in New Zealand and the other in PNG;
  2. citizens of their respective birth countries and both had lived in Australia for a long time;
  3. both had their visas cancelled because they fell foul of the character test as a result of crimes they committed; and
  4. were both in immigration detention.

At this stage you may be asking what’s the issue? There is nothing remarkable about those facts. However, what sets this case apart is that both men were of aboriginal descent, one being a member of the Gungarri People and the other a descendant of the Kamilaroi group. Both were accepted as such by elders of those tribes. The legal issue that the High Court had to grapple with is whether the plaintiffs were “aliens” (clearly not the type in the photograph). If not, then the power to cancel their visas did not apply to them.

The judgment is long and complicated and each of the seven judges gave their own reasons. The net result is that by majority (Justices Bell, Nettle, Gordon and Edelman) of 4:3  it was found that aboriginal Australians, even if foreign citizens, are not aliens. There may be exceptions to that if they had, for example, renounced their aboriginal identity.

Although the judgments are long (468 paragraphs) and complicated, it is interesting to see how the court considers issues such as: what is aboriginally as per the test set out in Mabo?; the effect of white settlement and federation (prior to which there were no aliens); and whether the argument was effectively for a race based limitation to constitutional power? There is a long discussion about the previous “alien cases” that have been before the Court.

The High Court has helpfully published a short summary of the case or if you’re up for a longer read: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

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