Australian Immigration Daily News

Is there any way to challenge an unfavourable decision by the Administrative Appeals Tribunal? 

This is a question that RMAs must often consider. It is a common occurrence that an application for merits review will not be successful before the Tribunal. And it may seem, both to the client and to the RMA who is assisting the client, that the Tribunal’s decision has been unfair or has incorrectly arrived at the “wrong” result. 

This may be especially true in cases where one of the criteria for the grant of the visa is to establish that the applicant would be a “genuine temporary entrant” to Australia – for instance, visitors and student visas. The RMA may believe, based on discussions with the client, that it is indeed the client’s true and sincerely held intention only to stay in Australia for a short period of time and then to return to her/his home country.  But the Department and the Tribunal may come to a completely different conclusion. The visa application may be refused in the first instance by the Department, and the refusal may be affirmed by the Tribunal. 

What can you do? 

Well, to be perfectly honest about it, an applicant’s options are quite limited. It’s not possible to get any further “merits review” before the Federal courts. In order for an application for judicial review to be successful, it is necessary to be able to show that there has been some form of jurisdictional error on the part of the Tribunal. 

A case that was decided late last week by Judge Smith of the Federal Circuit Court – Awadallah v Minister for Immigration & Anor (2015) FCCA 3126 (27 November 2015) – does illustrate one possible pathway for establishing jurisdictional error: that is to show that the Tribunal has somehow failed to comply with its obligations under section 359A to afford the applicant “procedural fairness”.  

And indeed, as has been shown in some recent articles that I have posted on the Migration Alliance blog, the Federal courts do place great emphasis on assuring that persons appearing before the Tribunal are given their right to procedural fairness.  For example, in the case of Jagroop v Minister for Immigration and Border Protection (2014) FCACFC 123 (23 September 2014), the Full Court overturned a decision of the Tribunal which affirmed the cancellation of a visa that was held by a person who had been convicted of manslaughter in the death of his wife on the basis that the visa holder had been denied procedural fairness by the Tribunal. 

The moral, then, is that even when an applicant’s case may appear to be seemingly “hopeless”, if a failure to provide procedural fairness can be identified, it may nonetheless be possible to get the unfavourable decision of the Tribunal overturned (“quashed”) and to open the door for another attempt to persuade the Tribunal that the visa ought to be granted, or ought not to be cancelled, as the case may be. 

So what then, is section 359A all about? 

Section 359A imposes a mandatory duty on the Tribunal to: 

a) give clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; 

b) ensure, insofar as is “reasonably practicable”, that the applicant understand why the information is relevant to the review, and that the applicant understands the consequences of the information being relied on in affirming the decision that is under review; and 

c) (most importantly) invite the applicant to comment on or respond to the information. 

 So how did section 359A come into play in the Awadallah case? 

The application in question in Awadallah was for a visitor’s visa. The applicant was a citizen of Lebanon. The application was sponsored by the applicant’s mother, who was of course living in Australia. The visa applicant relied on the fact that his mother was undergoing mental difficulties as a recent of the recent death of her husband, and that she had a fear of flying on a plane (thus making it difficult for her to travel to Lebanon). The applicant also relied on evidence that he had sufficient savings to support himself during his visit to Australia and that he had complied with the conditions of his visitor’s visa and had returned to Lebanon when he had previously been sponsored for a visa by his mother. 

However, a Departmental officer refused the application for the visitor’s visa, and, following a hearing, the Tribunal affirmed the refusal.  The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia only temporarily.  It found that the applicant had strong family ties to Australia, in that all 4 of his siblings were permanent residents; that the psychological condition of the applicant’s mother might provide the applicant with a strong incentive to overstay his visitor’s visa and to remain in Australia to care for his mother; and that “country conditions” in northern Lebanon, involving increasing violence, would also give the applicant a motive to remain in Australia. 

Section 359A came into play in the Awadallah case in the following way:  During the hearing, the Tribunal had raised the question of the applicant’s health. It did so by referring to evidence that had been considered at a previous hearing before the Tribunal concerning an earlier application for a visitor’s visa by the applicant that had also been refused by the Department. At that previous hearing before the Tribunal, mention was made of allegations that the applicant suffered from a mental disability and had the mental capacity of a 10 to 13 year old. 

However, at the hearing concerning the present visitor’s visa application, the Tribunal failed to comply with its obligations under section 359A to inform the applicant that the information about his health that had been brought forward at the earlier hearing might form a reason, or part of the reason, for affirming the refusal of the visa application. Nor did the Tribunal give the applicant an opportunity to comment on or respond to the information concerning his health. 

One interesting aspect of this case is that Judge Smith found that even though the Tribunal had not specifically referred to the applicant’s health condition in its written decision, it was sufficient that the applicant’s health was an important issue (for example, it could bear on the question of whether the visa applicant was unable to work, was in need of care by his relatives in Australia, and was thus a risk to overstay his visa and remain permanently). 

The lesson of this case is that section 359A can be a powerful tool for challenging adverse decisions by the AAT.  If it can be found that the Tribunal did not comply with the “procedural fairness” obligations of the section, the Tribunal’s decision may be able to be challenged successfully. And when the case is “remitted”, or sent back to the AAT by the Federal courts, it may be possible to address the issue that has prompted the Tribunal to affirm the refusal of the application, and thus to persuade the Tribunal to reconsider its assessment and change its decision so that the visa application is approved.

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