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Yes, the Tribunal Is Required to Consider Crucial Evidence

How would you like to do a little mental exercise to get yourself back into the swing of things now that we’re getting into mid-January, and the summertime joys of beach, sun and sky are giving way again to days at your desk and the joys of the migration legislation?

Is you’re a.c. working on this brutally hot day (in Sydney!)? Are you completely up to date on the amendments that came into force in November 2016? If so, ready, steady, go!!

Suppose you are dealing with an application for an Orphan Relative visa, Subclass 117.

Wouldn’t you think that it would be critically important, when determining whether an applicant can be considered to meet the definition of “orphan relative” under regulation 1.14, to give careful consideration to the evidence of an applicant concerning his last contact with his mother?

After all, regulation 1.14 does define an “orphan relative” as a person who “cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts”?

So, if you were a delegate of the Minister, or a member of the Administrative Appeals Tribunal, wouldn’t you want to give due consideration to an applicant’s evidence concerning the disappearance of his mother? To the applicant’s evidence that his mother had left Marka in Somalia to travel to Mogadishu by herself in 2008, and that he has not heard from her since that time?

Well, believe it or not, in a case that came before the Federal Circuit Court in December of last year, Mohamed v Minister for Immigration & Anor (2016) FCCA 3231 (15 December 2016), the Court found that the Tribunal had failed to give proper consideration to the applicant’s evidence.  And further, the Court held that by so failing, the Tribunal had committed jurisdictional error, and that the case therefore needed to be sent back to the Tribunal for re-determination.

What happened is that the Tribunal recited in its decision that “Having considered the totality of the evidence before it cumulatively…” it could not be satisfied that the visa applicants could not be cared for by either parent.

But indeed, the Tribunal did not actually properly consider the applicant’s evidence. According to the Court’s decision, the Tribunal did no more than “refer” to thee evidence.  The Tribunal did not say why it had rejected the applicant’s evidence, nor did it say anything about whether the applicant was a witness whose evidence ought to be rejected for some reason.  It just did not give any reason at all for not accepting the applicant’s evidence.

So, in short, the failure by the Tribunal here that amounted to jurisdictional error involved a failure to “give active intellectual engagement to the evidence”.  So, merely mentioning that certain evidence has been put forward on behalf of an applicant, but then failing to consider that evidence, and failing to give reasons as to why the evidence was rejected, amounted to jurisdictional error that in the view of the Federal Circuit Court required that the Tribunal’s decision be set aside, or “quashed”.

There is a lesson from this case that can be applied more generally. If you have a case where the Tribunal does no more than mention the existence of certain important evidence that may be determinative of the case, but then fails to actively consider it, and fails to explain why it has refused to accept that evidence, then you have a very good chance of demonstrating that the Tribunal has committed jurisdictional error!

So if you spot this kind of mistake in a decision by the Tribunal, you may have very good prospects of winning at the Federal Circuit Court, and getting your client another chance to present her/his case to the Tribunal, hopefully successfully!

Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.

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