Australian Immigration Daily News

Is there anything you can do to assure that your client gets a “fair hearing” before the Administrative Appeals Tribunal? 

Suppose you accompany your client to the hearing, and it is apparent from the beginning that the “handwriting is already on the wall”?  In other words, is there anything you can do when it appears that the Tribunal Member has already made up her/his mind on the merits, and that no evidence, and no submission, could possibly sway the member to determine the visa application in your client’s favour? 

Or suppose the nature of the questioning conducted by the Member appears “unsympathetic” and “insensitive” to your client’s circumstances, what then? 

Well, I can say from my own experience as a lawyer that it is a pretty awful experience to go to a hearing and immediately get the impression from the remarks or demeanour of the hearing officer that you’ve lost the case before it has even started, or that the hearing officer is not prepared to accept certain evidence, even though you know that the evidence is “true, correct and reliable”? 

Thankfully, I have found myself in this situation in only a few rare circumstances in the course of my career!!! 

But how much worse must it be for a person who has come to Australia from a foreign country? Who is not familiar with Australian legal procedures? Who may not have strong English language skills, and may therefore not fully understand or appreciate what has happened during a hearing? And whose ability to remain in Australia as a lawful non-citizen depends on a positive outcome? 

Well, a recent case before the AAT illustrates just how anxiety-producing, traumatic and upsetting a hearing before the AAT might be for a visa applicant.  And the case also gives guidance about what you should do if you have the impression that the Tribunal Member may be “totally against” your client for reasons that seem to have nothing to do with the merits of the case. 

The case – 1419015 (Migration) (2016) AATA 3075 (29 January 2016) – involved an application for review of a decision by the Department to refuse an application for a partner visa.   

It was claimed that during a hearing that was conducted in November 2015 that the Member had conducted the hearing in an “abrupt and technical” way that created the impression that the Member was “unsympathetic to the applicant’s case”, and had shown “little sensitivity in relation to domestic violence issues” by asking the applicant why she had remained in a violent relationship for such a long period of time.

It was also suggested that the applicant did not understand “technical and repetitive” attempts by the Member to explain “Schedule 3” requirements or waiver provisions relating to Schedule 3, and that the Member had simply stated the requirements without explaining them. 

The degree to which the hearing caused distress to the applicant was demonstrated by the fact that she was hospitalized the day after the hearing as the result of a suicide attempt.  According to a letter that was prepared by a psychiatrist at the hospital, the applicant reported that: 

“she made the attempt because she was distressed by the recent Migration Review Tribunal gearing which she found highly distressing and confrontational. She also worries about the future of her 4 year old daughter, should she be deported.” 

So, what approach was taken in this case to try to address the apparent “unfairness” of what had happened at the hearing? 

The applicant’s lawyers sought to have the Tribunal “re-constituted”.  In other words, they sought to have a different Tribunal member appointed to re-hear and determine their client’s case. 

However, this application to have the Tribunal re-constituted was not successful. 

The reason that the application failed seems to relate to the changes in the law that have resulted from the consolidation of the former Migration Review Tribunal – Refugee Review Tribunal with the other “divisions” of the AAT that was brought about by the Tribunals Amalgamation Act 2015 (Cth). 

Before the amalgamation, the law allowed an application for re-constitution of the Tribunal to be made even in circumstances where an application had not been made that the Member “recuse” (in other words, “excuse, or remove) her or himself from presiding over the matter on grounds of “apprehended bias” or otherwise.  Under the previously-existing legal regime, if the Presiding Member of the MRT or RRT formed the opinion that the conduct of the proceeding would justify the recusal of the Tribunal Member who had been assigned to determine the matter or might otherwise result in judicial review, then the Presiding Member could “re-constitute” the Tribunal – in other words, appoint a different member to hear and determine the case. 

However, the law has now changed under the Tribunals Amalgamation Act. 

As it now stands, the President of the AAT does not have power to re-constitute the Tribunal if she/he forms an adverse view of the way that a member of the Tribunal has conducted a hearing “unless it is in the interests of justice to do so”.   

And, in 1419015, President Kerr of the AAT held that it will not ordinarily be considered to be in the interests of justice for the President to direct that the Tribunal be re-constituted. Rather, it was President Kerr’s view that the proper way to address perceived unfairness or apprehended bias on the part of a Tribunal Member is to make an application that the Tribunal member “recuse” her or himself. 

Such an application would need to be made directly to the Tribunal Member who is hearing the case before the conclusion of the hearing. 

The outcome in this case was thus that President Kerr declined to order that the Tribunal be re-constituted. However, it was held that it was “open” to the applicant to make an application for the Tribunal Member to recuse herself from the case. The Member agreed not to decide the case until an opportunity for a recusal application to be made. 

It is very heartening that President Kerr saw fit to make the following observations about the way hearings should be conducted: 

“Any party in a proceeding before the AAT is entitled to expect not only that their substantive rights, if they exist, will be protected but also that, irrespective of the substantive merits of their case they will be listened to with respect and spoken to with courtesy.” 

The ultimate lesson to be drawn from this case is that if you are acting for a client in an AAT proceeding and are concerned that your client will not be given a fair hearing due to reasons of apprehended bias or other causes,  then you must make an application asking the Tribunal member to “recuse” her or himself.  An application made after the conclusion of the hearing for “re-constitution” of the Tribunal is not likely to succeed.

I would suggest that there is another lesson to be taken from the near-tragic circumstance of this case: It's my personal perspective that the great majority of visa applicants do indeed have meritorious cases that are worthy of visa grant, and that the proper attitude toward review by Departmental officers and the Tribunal should be one of compassion and understanding toward the applicant's circumstances.

What do you think?

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