Paul Cutler's Migration Law Blog

(for posts older than September 2014 refer to www.paulcutler.blogspot.com

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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Aliens

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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Not finally determined

The usual rule in the AAT (and other merit review tribunals) is that the law in force at the time of the tribunal’s decision is applied. This can give rise to some to some difficult issues if there has been a change in the law in between when the application is lodged and when the case is decided. For example I have recently had a case where a change to the skilled occupation list (by imposing a caveat that couldn’t be met) affected my client unfairly.

There is a general presumption (both at common law and in the Legislation Act) that laws can’t act retrospectively if there is an effect on accrued rights. The law is clear that making an application for review in the AAT does give rise to an accrued right to have the application determined in accordance with the law existing at that time (see for example Esber v Commonwealth (1992) 174 CLR 430 at 440-441). So far, so good for my clients – they have an accrued right.

However, there is an exception to that general proposition if there is a clear statutory intention to the contrary. In the context of the Migration Act one of the drafting mechanisms often used to show such an intention is the phrase “not finally determined”. This is actually a defined term in section 5(9) of the Migration Act as follows:

For the purposes of this Act, an application under this Act is finally determined when either:

(a)a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

The effect of “not finally determined” when it appears, is evidence of a statutory intention for the law in force at the time of the review to apply. The “unfair” (but not illegal) consequences are apparent from a number of cases including Kaur v Minister for Immigration and Border Protection [2015] FCA 168; Turkish Kebab & Pizza Shop v Minister for Home Affairs [2019] FCCA 188; and Su v Minister for Immigration and Border Protection [2019] FCCA 1629.

Careful consideration needs to be given to the wording of transitional provisions in these types of cases.

Calculating time

Determining when time limits expire can be more complicated than you might first think.

Recently in Wang [2019] AATA 4163 the AAT had to grapple with the meaning of clause 187.232(1)(bb) (in schedule 2 of the Migration Regulations) which set a time limit for english tests and required that: “the test was conducted in the 3 years immediately before the day on which the application was made”.

Mr Wang did his test on 3 August 2013 and lodged his visa application on 4 August 2016. Was he in time?

The problem is that the term ‘year’ is not defined in either the Act or the Regulations, and none of the calculation of time provisions in the current s.36 of the Acts Interpretation Act provides any guidance. In the absence of any such guidance the Tribunal accepted that “year” meant “calendar year”.

It then applied section 36 of the Acts Interpretation Act which provides that a period of time expressed to “end before a specified day does not include that day”. The tribunal held that for an application lodged 4 August 2016, the required time period to have conducted a language test would have been 3 August 2013 to 3 August 2016. Accordingly, the competent English requirement was met, and the visa application was remitted to the Department for determination according to law.

My standard advice to clients is that if there is ever any doubt about time limits, make sure you err on the side of early!

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The refusal

It’s unsurprising that decisions made by the Minister (or his delegate) have to notified to a visa applicant. Particularly in the case of refusals,notification in accordance with the law is important for two reasons:

  1. firstly, the notification has to give reasons for the decision and has to inform the applicant about the available review rights and the time frames (section 66 Migration Act) involved. The applicant should know by reading the notification, when the timeframe begins, and shouldn’t have to piece it together from different parts of the notice; and
  2. secondly, there is a strict 28 day time limit on lodging an application for merits review in the AAT which runs from the the time of notification.

There are many cases which have challenged the formalities of notification, the most recent example being the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189.

In that case, notification was given by letter sent by registered post (which is one of the ways prescribed by section 494B) and provided the letter is sent within 3 days of the decision it is taken to be received 7 working days after the date of the decision (section 494C(4)). Although the applicant tried to argue (by reference to postal records) that notification hadn’t occurred, the court found that: “Each of these propositions is individually tenuous.  That they might all be correct seems most unlikely.”

The second argument was that his review rights hadn’t been adequately set out pursuant to section 66. That argument (also unsuccessful) relied on Perram J’s decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. In that case, the information about review rights was in the wrong section of the letter. It was placed under the heading ‘Financial or case worker assistance’ instead of the heading ‘review rights’. In DFQ17, Perram J held that if a notification is not ‘piecemeal, entirely obscure or essentially incomprehensible’ then s66 is complied with.

The take home message is that any refusal letter needs to be carefully considered for its form as well as its content.

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Credibility and the trip to Iran

I have previously blogged about how inconsistency is dealt with in judicial review applications. Inconsistency can lead to adverse credibility findings, which are usually seen by the courts as encroaching into the realm of merits review (which is impermissible). That is not to say that there can never be a jurisdictional error arising from a credibility finding.

The recent Full Court case of Atkins v Minister for Home Affairs [2019] FCAFC 159 demonstrates some of those difficulties.

Mr Atkins had his protection visa cancelled after the Department found that a number of his claims for protection were false. The problem started when he returned from an overseas trip in 2012 (using Australian issued travel documents) but lied on this incoming passenger card that he had been in Thailand. He had actually returned to Iran (to see his sick mother) and was found to have a genuine Iranian passport in his possession. The problem was that an Iranian male citizen couldn’t obtain a passport unless his national military service had been completed (which it hadn’t).

His challenges to the cancellation in the Tribunal and in the Federal Circuit Court were unsuccessful. One of his grounds for review in the Full Court was that the adverse credibility assessments made by the Tribunal regarding his explanation of his legitimate use of an Iranian passport were “perfunctory, emphatic and unsustainable.” He argued that the Tribunal’s explanation was “implausible in all aspects” and defied “logic.” It was also submitted that the Tribunal overlooked key evidence that supported his use of the Iranian passport.

The Full court found (at [61]): “the Tribunal understood the claim the appellant had made about the need to have a passport that showed he had left Iran lawfully.  Ultimately, it did not believe that claim to be true.  In rejecting it, in essence the Tribunal found that it was improbable that a person who contended that they had been an army deserter, had rescued a political prisoner, and had been critical of the Iranian regime, would procure a passport that was false in almost all respects, save that it used that person’s actual name.  In our view, and with respect, it was open to the Tribunal to be sceptical of the claim made.  The Tribunal’s incredulity was not illogical or irrational; it did not lack common sense.  When then considered with the state of the material before it, in our view, the Tribunal was entitled to reach its conclusion.  That included evidence that the 2012 passport was found to be free of “fraud tampering”; the appellant’s responses, which were “convoluted and vague”; the lack of evidence concerning his mother’s illness;….”

As a result, Mr Atkins was found to have left Iran lawfully and wasn’t entitled to his protection visa.

Apart from the legal issues in this case, it also highlights the difficulty in processing protection visas applications. Often the media attention is directed to genuine refugees who are not granted visas and are forced to return to an unknown fate in their home countries. Mr Atkins did apparently “scam” the system and probably wouldn’t have been detected had he decided to not to travel (or at least not to travel back to Iran).

Inconsistency

It is impermissible in judicial review for courts to embark on an assessment of the merits of the decision under review. The focus is on the legality of the decision. A finding about credibility (or lack of it) is “the function of the primary decision-maker “par excellence”’ and is only judicially reviewable in very limited circumstances.

In AVQ 15 v Minister for Immigration and Border Protection [2018] FCAFC 133 the Full Court found that the tribunal had fallen into jurisdictional error in finding the applicant lacked credibility because of inconsistencies in his story. The problem was that the Tribunal has overlooked what the appellant told the Departmental officer, notwithstanding that a copy of the transcript of his interview formed part of the record before the Tribunal (ie it failed to take relevant information into account). The case is also generally interesting for what it says about how inconsistency should be treated:

  1. A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility; but
  2. it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach;
  3. the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis; and
  4. even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it.  This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact.

In other words, not all inconsistencies inexorably lead to the conclusion that the applicant lacks credibility to the point where their story should not be accepted.

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