Paul Cutler's Migration Law Blog

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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).


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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Citizenship and character

Whether or not someone is of good character is an issue which can arise in migration law as the basis for refusing or cancelling a visa. Character is also an issue which has to be considered in the context of applications for citizenship. Unlike the Migration Act, the Australian Citizenship Act does not have a definition of what “good character” means. As a result the test from Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 431-432 is applied. That test is:

“Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

In addition, citizenship policy says that “enduring moral qualities” include: (a) characteristics which have been demonstrated over a very long period of time; (b) distinguishing right from wrong; and (c) behaving in an ethical manner, conforming to the rules and values of the Australian society.

I was curious to browse some recent AAT cases to see the types of matters where applicants were found not to have the requisite enduring moral qualities. I was a little surprised to find that a bad (i.e. “really bad”) driving record can be a reason for refusing citizenship. In Ahmed [2018] AATA 4458, the member affirmed the decision to refuse citizenship and observed that:

“His driving record is appalling when one adds the totality of the record of offences to those for which he was convicted in the courts. Put bluntly, he was a menace on the roads and by his blatant, frequent and sustained disregard of Australia’s laws as they relate to driving and road safety, he fails to manifest the degree of respect for the law which this nation is entitled to expect from people seeking to join its ranks of citizenship.”

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Fairness and Capacity

 Karan v Minister for Home Affairs [2019] FCAFC 139 is yet another recent Full Court character cancellation case. Mr Karan (a citizen of Fiji) had a history of alcohol and drug addiction and mental illness. He represented himself before the AAT. The jurisdictional error which was alleged in the courts at first instance and on appeal was that he had been denied procedural fairness because the Tribunal had failed “to make enquiries as to whether the Appellant had the requisite legal capacity to act on his own behalf and by failing to make positive findings that the Appellant was indeed in a fit state to represent himself in the proceedings…”

Apart from not being able to identify any legal basis for imposing a duty to assess capacity, the case also failed because there was no evidence that: “any particular ailment which impacted on his competency or capacity to participate in the proceeding”.

The Full Court also helpfully set out some of the law on capacity including:

  • From BJB16 v Minister [2018] FCAFC 49: “Applicants who assert that their psychological condition deprived them of the “meaningful opportunity” required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them…”; and
  • From Minister v SGLB [2004] HCA 32: “Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness.  That may affect their capacity to do justice to their case.  Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell…”

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Interpreted generously but…

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was evidence that he was rehabilitated from his drug addiction (which caused some of his prior offending) and he had the support of his wife and 3 Australian citizen children.

The case highlights the importance of identifying a jurisdictional error and not merely challenging the merits of the underlying decision (which is an impermissible in judicial review). Mr Tran was not legally represented either before the primary judge or in the appeal court. Even though the Court noted that subject to procedural fairness, poorly cast grounds of appeal (especially by self represented litigants) should be interpreted generously.

Nevertheless there was disagreement between the judges as to the ground of review being relied on. Greenwood J was prepared to find there had been a jurisdictional error because the delegate had not given “proper consideration” to the claim that being drug free since 2004 made future offending unlikely. However, Charlesworth and O’Callaghan JJ treated the same argument as being based on legal unreasonableness. Their Honours found that there was an “evident and intelligible” basis for not ruling out the risk of future offending (i.e. the decision was not unreasonable). Accordingly, Mr Tran’s visa remains cancelled and he will now have to return to Vietnam.

Logical Connection


There are only very limited grounds on which fact finding can be challenged on a judicial review application. This is highlighted by MZZGE v Minister for

Home Affairs [2019] FCAFC 72. In that case, the Applicant (pregnant with a second child) said she would be forced to have an abortion and be sterilised if returned to China. It was also claimed she would face various societal pressures in their hometown in Fujian province including because their daughter would be considered ‘early born’ and a ‘black child’, resulting in no entitlements to social benefits or welfare.

Although it was factually accepted that forced sterilisations do occur,  the Tribunal found there was insufficient evidence to show this was a risk to the Applicant. The Applicant’s argument was that this conclusion was irrational. Unfortunately, for a factual decision to be a jurisdictional error, you have to show:

  1. no rational or logical decision-maker could have arrived at the decision on the same evidence; or
  2. there is no logical connection between the evidence and the inferences drawn; or
  3.  there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion.

The appeal was unsuccessful. Interestingly, the Applicant did not argue any ground of appeal that the Tribunal had misunderstood the “real chance” test (an important concept in the law of protection visas). Perhaps she should have?

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Active Intellectual Process

It is a principle of administrative law, that decision makers must give ‘proper, genuine and realistic consideration to the merits of the case’ before making their decision. If they fail to do so, the decision will be “infected” with jurisdictional error and be liable to be set aside by the court.

Mr Chetcuti (a 73 year old Maltese man who arrived in Australia at the age of two) was a convicted murderer serving a sentence of 24 years imprisonment. Shortly before the expiry of his sentence, the Minister cancelled his visa on the basis that Mr Chetcuti did not meet the character test. Mr Chetcuti sought judicial review of this decision. The Minister consented to the first decision being quashed. The Department then put in train a process which would allow the the Minister to make a fresh cancellation decision. The following events occurred on the morning of 14 August 2017:

  • At 9:16 am, 130 pages of documents relating to the decision were placed on the Minister’s desk
  • At 10:14am, the Minister is notified that the first cancellation decision has been quashed by the Court
  • At 10:25am, the Minister makes a fresh cancellation decision pursuant to sections 501(6)(a) and 501(2)(c) of the Migration Act

Mr Chetcuti then sought judicial review of this second decision on the basis that the Minister did not provide ‘proper, genuine and realistic consideration to the merits of the case’. He was unsuccessful at first instance but on appeal, the Full Court ( Chetcuti v Minister [2019] FCAFC 112) accepted the argument that the Minister had spent no more than 11 minutes considering the material before making a decision, which was an insufficient time to allow an ‘active intellectual process’ to be applied. Accordingly the second decision was quashed. 

The case is also interesting in that it considers how “Jones v Dunkel inferences” can be drawn when there is no evidence from the Minister or his staff as to what actually happened in the office on that morning. I am unsure what will happen to Mr Chetcuti next, but it may be a case of “3 strikes and he’s out”. 

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