Australian Immigration Daily News

Wow!! Whoa! What! That’s just unbelievable! I’ve never heard about anything like that in my life! I cannot believe that actually happened!! Really!!! 

Yes, it can be truly amazing what you come across when looking through the cases that are reported on Austlii. Yes, you would think that it could be a “dull exercise” (that’s why you should keep reading my articles!!). 

But this case is truly astonishing, and it is really really important for everyone who ever goes to the AAT on behalf of a client to know about what happened   

I am not exaggerating here; my heart is still pounding with excitement about this case! 

Ok, what was the case, what was it all about, and why is it important? 

The case was MZZLO v Minister for Immigration and Border Protection (No 2) 2016 FCA 356 (15 April 2016) – a decision of Justice Moshinsky of the Federal Court of Australia, on appeal from a judgment of Judge Riley of the Federal Circuit Court. 

The case stemmed from an application for judicial review of a decision by the AAT to affirm the refusal of an application for a Protection visa. 

The background of the applicant can only elicit the strongest feelings of sympathy: the applicant is a citizen of Sri Lanka, of Tamil Ancestry. He arrived in Australia in May 2012 by boat as an unaccompanied minor. 

His claim was that there was a Sri Lankan army camp near his family’s house in the North West of Sri Lanka. He claimed that the army often came to his house and ordered him to go to the camp with them to work, and that if he refused, he was beaten. He also claimed that the army often rounded up Tamils in his area, included himself and his father, and ordered them to demonstrate against the government to create trouble between the Tamil and Singhalese communities. 

Prior to the hearing before the AAT, the applicant prepared a statutory declaration with the assistance of an interpreter. This statutory declaration was intended to respond to adverse findings in the decision of the delegate who had refused the application in the first instance.  The applicant was apparently represented by a lawyer at the Refugee and Immigration Legal Centre in Melbourne. 

During the hearing before the AAT, which lasted for about 3 hours, the member repeatedly asked the applicant to state what was in the statutory declaration. 

The statutory declaration had included some wording that was obviously prepared by a lawyer. 

For example, there was a sentence in the declaration that read: “I do not intend to repeat the claims that I have made in my PV application and rely on all evidence previously given”.

 And there was further wording in the statutory declaration that referred to the adverse findings of the delegate, in terms like this: “I am told that the case officer did not believe….” 

Towards the end of the hearing, the member said to the applicant that when he read the statutory declaration, the member had concerns that it was “not expressed in the “sort of voice” he would expect from a man such as the applicant, but rather that it had been written by a lawyer on behalf of the applicant. 

The member then said that, after asking the applicant to tell him what was in the statutory declaration, the member’s suspicions that the document had been prepared by a lawyer had been confirmed. 

The member also stated that he intended to give the material in the statutory declaration very little weight.

Indeed, it did turn out that the lawyer informed the member that she had prepared the statutory declaration based on asking the applicant questions through an interpreter, and that she had read back to the applicant the wording about not finding it necessary to repeat claims that the applicant had made in his visa application, and that the applicant had agreed that it was acceptable to him to include that language. 

I now call upon every lawyer who is reading this: How many times have you “taken instructions” from your client about factual matters, prepared either a stat dec or an affidavit based on those instructions, and then had the client read it and attest to it on oath or affirm it? 

I can speak for myself and say that I have done this more times than I could count.  Dozens, hundreds, thousands! (OK I am giving away that I am an antique!!) 

Well, what did the member have to say? 

I quote it in full: 

“You’re on very very dangerous ground. This is a statutory declaration. Now I’ve raised it with the applicant because I’m required to, but I see what are submissions put in an applicant’s voice. That gives rise to two concerns. One is that you have sought to mislead the tribunal. It might be grounds for a report to OMARA. (It might also be grounds for a) report to the Legal Services Board for professional misconduct., so I would urge you – I will not do either of those things but I would urge you in the future to be very careful how you present an applicant’s evidence.” 

In my opinion, that statement was absolutely unjustified. 

I do not know the lawyer who represented this applicant, but I do not have the slightest doubt at all that she did not do anything wrong at all!!!!!!!!!!!!!!!!!!

And what happened in the end? 

First of all, Justice Moshinsky of the Federal Court observed that he also did not think that the comments by the Tribunal member were justified. 

Further, His Honour concluded that in light of what he described as a “serious attack on the professional conduct of the applicant’s lawyer”, that it was appropriate to make a finding that the Tribunal’s decision affirming the refusal of the Protection visa was infected with jurisdictional error due to “apprehended bias”. 

As Justice Moshinsky noted, apprehension of bias will be found in circumstances where “a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision”. 

Here, Justice Moshinsky determined that the statements made by the Tribunal member concerning the conduct of the applicant’s lawyer might well cause a fair-minded lay person to consider that the member was so influenced by what he perceived to be the lawyer’s improper or inappropriate conduct that the member might not bring an impartial mind to the assessment of the applicant’s case. 

In addition, Justice Moshinsky observed that it could also be fairly apprehended, given the member’s criticisms of the lawyer, that the member would not bring an impartial mind to the consideration of the written submissions that the lawyer had prepared. 

So the result was that Justice Moshinsky quashed the decision of the Tribunal. 

To which I say: Amen. In my view, that was an absolutely correct decision. 

And as for what occurred before the Tribunal? 

I repeat: unbelievable, just unbelievable. 

Your thoughts?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.