Paul Cutler's Migration Law Blog

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Credibility reversed

This is not the first time that I have blogged about credibility, but I re-iterate that (adverse) credibility findings are the bane of the applicant lawyer’s life. The main reason is that usually (there are exceptions) an adverse credibility finding by a delegate is a finding of fact and can’t be judicially reviewed.

The reverse problem occurred in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 where although the protection visa applicant was unsuccessful (because the country information for Sri Lanka indicated there was low risk to him), his story had been found plausible by the delegate who interviewed him. That finding of (positive) credibility was reversed by the review authority who only listened to an audio recording of the interview. Although all the High Court judges allowed the appeal, there were some differences in reasoning.

The majority view was that it was effectively legally unreasonable for the review authority to reverse the credibility finding (at least without conducting a further interview).

The judgment of Nettle J (starting at [35]) sets out the procedural history and summarises some useful authorities about the role of appeal bodies (around [60]+) and raises an administrative law elephant in the room – the role of materiality in the law of unreasonableness. It’s fairly clear procedural unfairness has to be material, but it’s not so clear for unreasonableness. In fact there is a whole separate academic controversy on this point which is discussed  by UNSW academic Lisa Crawford in her blog post –

There were other lurking issues about whether it was actually within power for the review authority to conduct a new interview because it’s power was limited to considering only “new evidence” and it’s unclear whether a second interview would fall into that category.

This is really another one of those cases where the outcome was good for the applicant but it raises a number of other unresolved legal issues.

Back to the future

A brief (recent) history of the regulation of the migration advice profession in Australia:

  1. In 1992, the Migration Amendment Act (No 3) 1992 (Cth) introduced, the Migration Agents Registration Scheme;
  2. Under that scheme, practising lawyers (who could previously give migration advice) were prohibited from doing so unless they were registered as migration agents;
  3. In 1994, two Sydney solicitors unsuccessfully challenged the registration scheme in the High Court, arguing that it was beyond legislative power, infringed the implied freedom of communication and contravenes the freedom of intercourse guaranteed by s.92 of the Constitution. See Cunliffe v Commonwealth (aka “Migration Agents case”) [1994] HCA 44; (1994) 182 CLR 272;
  4. Over the years there were a number of productivity commission reports about whether dual regulation was required;
  5. Ultimately, in the early hours of today (22 March 2021), the Migration Amendment (Regulation of Migration Agents) Act 2020, came into force. The net effect of this is that: (a) lawyers can now provide immigration advice and assistance; (b) only non-lawyers need to be registered as migration agents; and (c) lawyers (at least those with unrestricted practising certificates) are not allowed to be registered;
  6. [please proceed to 1 above]

As a result of all that, my 20 years (to the day – from 21 March 2001 to 21 March 2021) registration (formerly 0101077) has come to end. Of course, I will continue to provide migration advice and assistance but as a lawyer not an agent. I have to make a few changes to the structure of my practise and this website and blog will remain.

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Personal costs

There is specific power in section 486E Migration Act, to make personal costs orders (against advisers). As Rangiah J explained in SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, there is a balance. On one hand there is a clear intention to “discourage persons from encouraging others to make and continue unmeritorious applications in migration cases“, but on the other, “It is in the public interest that lawyers should not be deterred from pursuing their clients’ interests by fear of incurring a personal liability to their clients’ opponents“.

Relevantly 486E provides that:

(1)          A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:

(a)       the migration litigation has no reasonable prospect of success; and

(b)       either:

(i)          the person does not give proper consideration to the prospects of success of the migration litigation; or …..

In DAB16 v Minister for Immigration & Anor [2018] FCCA 3957, the problem for the solicitor started when the appeal court dismissed his client’s appeal and made a finding that there had been no reasonable prospects of success.

What I find interesting about this case are the other two elements, namely: (a) there was “encouragement”; and (b) “no proper consideration”.

In relation to encouragement: at [64]…. “The lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense.  Of course it is open to the lawyer to adduce evidence to rebut the inference that otherwise arises.  However, in the absence of advice and instructions, it is reasonable to infer that the carriage of a case is wholly entrusted to the legal practitioner on the client’s reasonable assumption that the litigation has some prospect of success.”

In addition the solicitor had unsuccessfully made an identical argument in a different case and described his pursuit of the matter as a “passion”. “In light of that belief, it may be fairly inferred that the weaknesses in [solicitor’s] arguments were not apparent to him and, as a consequence, it is very unlikely that the weaknesses were made known to the appellant in the form of correct and measured advice concerning the prospect of success of the litigation.” (at [67]).

In relation to “proper consideration”: at [78] Of particular concern is [solicitor’s] assumption that the primary judge (and this Court) could and should receive evidence that was not before the Authority so as to reach a different conclusion on a factual question to that reached by the Authority …. That aspect of the argument alone indicates that any consideration that was given to the merits by [solicitor] proceeded from a flawed understanding of fundamental legal principles. Any consideration founded on that flawed understanding could not be “proper consideration” for the purposes of s 486E of the Act.

[79] There may be a category of case in which a legal practitioner makes an error of judgment or proceeds from an understandable misapprehension of legal principle or in ignorance of recently decided authority or recently made amendments to the Act.  A finding that the lawyer has not given “proper consideration” in such cases may be more problematic.  I do not consider this case to fall within that category.

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Fraud or unreasonableness?

The cases of Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46 highlight an interesting application of legal unreasonableness to what appears to be case of fraud.

It was common ground that the applicants in these cases (and probably about 40 others) were the victims of fraud by their migration agent (who was also a lawyer). She didn’t tell her clients that she intended to use a pro-forma submission to the Immigration Assessment Authority (“the Authority”)(which reviews claims for asylum for maritime arrivals).

She apparently didn’t do a great job with the pro-forma because:

In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. [the details for DUA16 were partly correct]. The Authority was unaware of the agent’s fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.

So what are the legal consequences of this?

  1. firstly, as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense. Although the Authority requested (pursuant to a Practice Direction) submissions and received false ones, the Court said that this did not affect the Authority’s power to make the request. No duty, function or power was affected in any adverse way; and
  2. However, all was not lost for the Appellants because the Authority was aware that the information it received was in relation to a different person. In those circumstances it was held to be legally unreasonable not to request the correct information.

This is interesting because the general proposition is that “there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law.” However, all powers have to be exercised “legally reasonably” and  “the failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.” A very interesting balance between the two, but the circumstances of these applicants was said to be “extreme’.

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Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a “substantial criminal record”. The decision to cancel is discretionary and subject to review in the AAT (usually). So what happens when:

  • a permanent visa is cancelled after the visa holder is convicted on several sexual assault charges and sentenced to imprisonment;
  • he successfully seeks merit review in the AAT (so that the cancellation is set aside);
  • then a few years later, he had a drink driving offence which again brought him to the Minister’s attention and resulted in the second cancellation of his visa. The drink driving offence by itself was not enough to trigger “bad character” but was taken into consideration with his previous offending.

He again seeks review of the decision and ultimately, the High Court (in Minister for Immigration and Border Protection v Makasa [2021] HCA 1) frames the question as (at [44]):

The determinative question therefore becomes whether, and if so when, the power conferred by s 501(2) of the Act, having once been exercised by the Minister or a delegate in the first instance or re-exercised by the AAT on review not to cancel a visa, can be re‑exercised by the Minister or a delegate to cancel the visa.

and the answer is (at [56]):

The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.

This basically means the power can only be used once. I will leave you to read the decision for all the analysis that led to that conclusion (which is more complicated than it first appears).

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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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