Australian Immigration Daily News

It will come as no surprise to RMAs that the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) is, like all human institutions, capable of making mistakes and, on the basis of those mistakes, “getting things wrong” and reaching a determination that is adverse to a visa applicant, when in fact the evidence should have led to a positive outcome in favour of the applicant. In fact, I can already hear a chorus of readers saying either "Amen!!!" or "For heaven's sake Michael, don't you think we all know that already!!!"

One can only be extremely thankful that the Federal courts exist in order to correct erroneous decisions by the AAT when they occur.  However, as will also be well known to RMAs, there is only very limited scope to challenge an incorrect factual finding by the AAT, as judicial review proceedings are generally limited to an assessment of whether the Tribunal has made a “jurisdictional error”:  for example, failing to have regard to a relevant matter,  assigning weight to irrelevant matter, or making an error of law.

Indeed, the limited scope of judicial review can cause one to wonder about the fundamental fairness and appropriateness of the hearing procedures at the AAT.  Granted, the AAT has a heavy case load that it must work its way through. But even accepting that is the case, should an RMA/migration lawyer really be required to “sit silently” at a Tribunal hearing and not be allowed to make oral submissions at the close of the hearing to direct the Tribunal member’s attention to matters of importance that are critical to the outcome of the case?

After all, in virtually every migration case, the future trajectory of the applicant’s life, and often of the lives of the members of the applicant’s immediate and extended family, are at stake! Would it truly significantly delay the hearing processes of the AAT, or impair the AAT’s ability to work its way through its caseload, if RMAs/migration agents were given even a few minutes at the close of a hearing to advocate on behalf of their clients?

The fact that the AAT is “fallible” was dramatically brought home in a case that was decided by Judge Street of the Federal Circuit Court at the end of August, Truong v Minister for Immigration & Anor, (2015) 2319 (26 August 2015).

The visa application at issue in Truong was for a “partner visa”. One of the main issues that was considered by the AAT was whether the applicant had ever lived with her sponsor since she had married him. At the time that the application came before the AAT, the applicant and the sponsor were apparently no longer living together, apparently due to (at least one) incident of “domestic abuse” that had apparently been committed by the sponsor against the applicant.

In support of her claim that she had indeed lived with the sponsor, the applicant attempted to provide the AAT with a copy of a seven page document that related to a “provisional Apprehended Domestic Violence Order” that had been taken out by the applicant against the sponsor.  At the time of the hearing, the applicant did not have an extra copy of the document to give to the Tribunal – she apparently only had the “original”. Consequently, she handed up the document and asked the AAT to make a copy of it. Unfortunately, only the first four pages of the document were copied and placed into evidence before the Tribunal (!!!!!). The last three pages, for whatever reason, did not get copied and were not taken into account when the AAT made its decision.

As it turned out, the last three pages of the document were crucially important. The applicant had claimed in a statement that she had provided to the AAT that there had been an incident in which she had contacted the police after the sponsor had become verbally and physically aggressive towards her after he had demanded money from her and she had refused. The Tribunal had stated in its reasons for affirming the refusal of the visa application that it had found “no independent evidence” to indicate that the police had actually been called to the home where the applicant claimed to have been living with her sponsor.  Relying on this supposed lack of “independent evidence”, the AAT determined that it was not prepared to accept that the applicant had lived together after their marriage.

However, the three pages of the document that had somehow not been copied by the AAT, and which had therefore not been taken into account, actually contained “independent evidence” to corroborate the applicant’s story about the police having been called to the residence that she said she shared with the sponsor – in other words, the exact evidence that the AAT had said was “missing” was actually in the additional pages of the document!!!  Indeed, the fifth page of the document (the first of the 3 pages that had not been copied) contained a report, apparently prepared by the NSW police, that confirmed in exact terms the applicant’s account of the incident with her sponsor.

Judge Street concluded that the AAT had committed jurisdictional error by failing to consider the material in the 3 pages of the document that it hadn’t copied. In Judge Street’s view, the information in those pages was material to the central issues in the case, namely, whether the applicant and her sponsor had ever lived together and the applicant’s overall credibility.

There are two practical lessons that can be taken away from the outcome in this case:  First, one basic and fundamental way that an RMA/migration lawyer can help a client is to ensure that the AAT is provided with full and complete copies of all documents that are relevant to the application for review. If there is any doubt during the hearing as to whether the AAT is aware of the documents, the RMA should be sure to call them to the attention of the Tribunal member (even if doing so results in the Tribunal member’s expressing “impatience” or “displeasure” that the RMA has done so!!!).  Secondly, the RMA should carefully review the reasons provided by the Tribunal in its decision. If it appears that the Tribunal has failed to consider a relevant matter – either by reason of having failed to copy a document and review it before making a decision, or otherwise – the RMA should give serious consideration to advising the client to pursue an application for judicial review.

 Concordia Pacific migration Lawyers. Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837