Australian Immigration Daily News

“…….the Tribunal must act in a way that is fair and just” – section 357A(3) of the Migration Act. 

Section 357A is not simply an abstract, idealistic statement of the way that the Administrative Appeals Tribunal is supposed to conduct merit reviews of Departmental decisions.  It is actually “prescriptive” of the Tribunal’s duties and obligations. 

But I would be willing to venture that if a “poll” were to be taken amongst RMAs, the results of the “ballot” would show that there are occasions where the Tribunal falls short of this requirement, and determines a matter in a way that is unfair and unjust.  

And because of the fact that judicial review in the Federal courts is limited to situations where there has been “jurisdictional error” – in other words, mainly where the Tribunal has made an error of law, has failed to take into account a relevant consideration, has relied on considerations that are irrelevant, or has acted “unreasonably” (without rational and intelligible justification) – it can be very very difficult to secure meaningful review of a Tribunal decision. 

So: is there anything that you can do to rescue your client’s case if the Tribunal doesn’t ask the “right” questions of a witness at a hearing, and then decides to affirm the refusal of a visa application? In other words, is there any way that you can help to protect your client from getting "steamrollered" at the AAT? 

A recent decision of Judge Griffiths of the Federal Court in the case of Huynh v Minister for Immigration and Border Protection (2015) FCA 701 (10 July 2015) provides at least a “partial answer”. Which is, that in certain circumstances, there is definitely something that you can do! 

What this case tells us is that where the Tribunal invites a person to give information orally at a hearing, especially where the person who is given such an invitation is a visa applicant, and the Tribunal does not give the person the opportunity to address the issues of concern that are relevant to the determination of the application, then the Tribunal’s decision may very well be subject to challenge on the grounds of jurisdictional error. 

The situation in the Huynh case was that an application for a Partner Visa had been made by the Vietnamese husband of an Australian citizen.  The Department refused the application in the first instance due to its view that the relationship between the applicant and his sponsor was not “genuine”.   An application for review of the refusal was then lodged with the Tribunal by the applicant’s wife.  

At the hearing, the Tribunal took evidence from the visa applicant by telephone from Vietnam, with the assistance of a translator.  This interview took only 5 minutes (!!!). During this interview, the Tribunal member did not put to the visa applicant questions relating to the Tribunal’s concerns about the credibility of the account that the applicant and sponsor had given about the history and nature of their relationship.  These “credibility concerns” related directly to the pivotal issue in the case, namely, whether the relationship between the visa applicant and his sponsor was in fact “genuine”.  

Nonetheless, the Tribunal relied on its concerns about the credibility of the applicant and his sponsor in reaching its decision to affirm the refusal of the visa application.

Judge Griffiths concluded that the Tribunal had failed to conduct the review hearing in a proper manner. His Honour ruled that having decided to allow the applicant to give evidence (which, in the circumstances of the case, it had no obligation to do, since it was the applicant’s sponsoring spouse, and not the applicant himself, who was the “appellant” before the Tribunal), the Tribunal had an obligation to squarely put its credibility concerns to the applicant. In Judge Griffiths view, “justice and fairness” required the Tribunal to provide the applicant with a meaningful opportunity to address the credibility issues.  

Judge Griffiths thus concluded that by failing to give the applicant a chance to answer the concerns about his credibility, the Tribunal had effectively failed to conduct a proper review of the Department’s refusal of the visa application. 

So what, then, does the result in the Huynh case teach us? First and foremost, it appears from this decision that the courts will be very concerned to protect a visa applicant’s rights to “procedural fairness”. When it is the case that information that is “adverse” to the applicant is not put to her/him directly, and the applicant is therefore not given an opportunity to address and answer that information, then a Tribunal decision that affirms a visa refusal may be vulnerable due to “jurisdictional error”. 

And what does the decision tell us about the role that RMAs can play during a hearing before the Tribunal? While an RMA may not be permitted (by virtue of section 366D of the Act, to participate in the examination of witnesses appearing before the Tribunal, it is surely the case that an RMA can and should actively monitor what is happening during the hearing. If it appears that the Tribunal has not given an applicant the opportunity to respond to  apparently adverse information, or when the Tribunal has failed to give an applicant a chance to address questions that relate to her/his credibility, an RMA can (politely!) bring these matters to the attention of the presiding Tribunal member. And the RMA should (again politely) suggest to the Tribunal member that the proper course would be for the Tribunal to speak to the issues that are causing the Tribunal to have concerns. 

Of course, in situations where it is apparent that the applicant has been denied the opportunity to provide evidence about matters that may be critical to the determination of the review proceeding (including issues relating to the applicant’s credibility), then an RMA may be able to determine that a good case exists for taking the case to the next step, and seeking 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