Australian Immigration Daily News

Do you find the provisions of the Migration Act that limit the role of a migration agent/lawyer at a hearing before the Administrative Appeals Tribunal to be frustrating? 

As we all know, although section 366A of the Act provides that an applicant is entitled, while appearing before the Tribunal, to have am “assistant” present at a hearing that is convened under section 360, section 366A(2) also says that the “assistant” is not “entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so”. 

Does this mean that as a migration agent or lawyer acting for an applicant you are effectively reduced to being a bump on a log during the hearing?  That you are just an observer, and that there is little value that you can contribute by attending the hearing with your applicant/client? 

Not at all!!! 

There is a very critical role that you can play even if the Tribunal member lets you do nothing more than “observe”.   

By closely observing how the hearing process unfolds, you can help to ensure that the Tribunal accords your client the basic procedural fairness to which she/he is entitled, and which the Act requires the Tribunal to provide. 

And if you are able to determine, either based on your observations of what happens at the Tribunal hearing, or by reviewing the Tribunal’s decision record or a transcript of the hearing, that the Tribunal has not in fact complied with its obligations to provide procedural fairness to the applicant, you might very well be able to get the Tribunal’s decision “quashed” in the Federal Circuit Court and sent back to the Tribunal for re-determination! 

A decision that shows how critical it is that the Tribunal comply with its obligation to afford an applicant procedural fairness was recently “updated” on Austlii (on 24 August 2016): Thirikwa v Minister for Immigration & Anor  (2016) FCCA 1501 (21 June 2016). 

The facts of the case appeared potentially problematic for the applicant: 

The case involved an application for a Partner visa.  The applicant was a citizen of Kenya who had married her sponsor, an Australian citizen who was born in the South Sudan, in 2011. She filed her visa application shortly after the marriage took place.  In January 2012, while the application was still being processed by the Department, an informer had provided information to the Department alleging that the relationship between the parties had been fabricated, that the marriage had occurred as the result of the applicant’s having paid money to her sponsor, and that the parties had never lived with each other. 

On the basis of these allegations from the informer, the Department concluded that the applicant was not the “spouse” of her sponsor, and refused the application. 

So what happened at the Tribunal hearing, and what did the Federal Circuit Court (Judge Heffernan) think  had gone wrong, which led to a finding of jurisdictional error? 

The Court found that the Tribunal had failed to comply with the procedural fairness requirement under section 359AA to give the applicant “clear particulars of any information that the Tribunal considers would be a reason, or part of the reason, for affirming” the Department’s refusal of the application. 

This is what the Tribunal member said to the applicant at the hearing: 

“Now, there’s another matter that I need to mention with you that is relevant to this case. And that is that there is information on the Department’s file that your marriage…was fake. And the information that includes quite a lot of personal information about you is that you paid (your sponsor) to marry you and that’s why it’s fake. So that you could achieve residency in Australia….” 

Why, in the Court’s view, was this not sufficient notice of the particulars of the information that the Tribunal might rely on to affirm the refusal of the application? 

Before the Court, the applicant’s legal representative argued that the Tribunal had done nothing more than to provide the applicant with the “bare bones” of the adverse information that had been supplied to the Department by the informer, and that what was really required to meet the requirements of section 359AA was details about the source of the information and details about the information that had been provided to the Department that made the information “cogent” (persuasive) in the mind of the Tribunal member. 

The Court essentially accepted these submissions. 

Judge Heffernan found that the Tribunal should have given the applicant “more comprehensive notice of the nature of the information”. In other words, what was troubling to the Court was that the Tribunal had failed to do more than to say to the applicant that there was information in the Department’s file that claimed that the marriage that formed the basis of the partner visa application was “fake”,  without providing to the applicant the substance of the information (in other words, more details about exactly what it was that the informant had told the Department).  

Judge Heffernan concluded that because the Tribunal had not given the applicant enough details about the adverse information, she was denied a meaningful opportunity to respond to the allegations. 

So the moral of this case is that it is not sufficient for the Tribunal only to inform an applicant that there is information that is considered adverse to the review application.  

In order to meet its obligations for provide an applicant with procedural fairness, as required under section 359AA, the Tribunal must provide sufficient details to enable the applicant to know the substance of the adverse information which may be relied on by the Tribunal,  so that the applicant has a real opportunity to comment on, or respond to that information. 

The case is just another example of the principle that the Courts will be extremely vigilant to ensure that an applicant’s rights to procedural fairness have been safeguarded through the Tribunal hearing process.

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