Australian Immigration Daily News

Is it possible to challenge the factual conclusions that are made by the Tribunal?

Suppose, for example, that you have a client who is seeking a skilled visa and is relying on a claimed work history in a foreign country in support of that application. 

Suppose further that the Tribunal finds “inconsistencies” between the applicant’s account of her prior employment – for example, the hours during which the applicant worked, or the tasks that the applicant carried out - and the employer’s account.

Suppose that based on these supposed inconsistencies the Tribunal concludes that the applicant’s claim that she/he had been employed at a particular workplace overseas was not true.

Does that mean that the applicant’s case is “dead on arrival”?

That the applicant has no chance of getting the factual finding overturned by the Federal Circuit Court?

A case that was reported on Austlii late last week, Aulakh & Ors v Minister for Immigration & Anor (2017) FCCA 544 (23 March 2017) teaches us that “It ain’t necessarily so”.

Inconsistencies in an applicant’s story do not necessarily spell doom!

This was the story: The applicant in Aulakh claimed that she had worked at a hair salon in India, and relied on this work history in support of an application for independent skilled migration.  The hearing before the Tribunal took place in 2014, about 7 years after the applicant’s claimed work in the hair salon.

Following the hearing, the Tribunal identified a number of inconsistencies between the applicant’s account of her work at the hair salon and the evidence given by her former employer.

For example:

• The applicant told staff of the Australian High Commission that her work at the hair salon had involved 65% hairdressing work and 35% beauty work; however, in her evidence to the Tribunal she said that her work was 70% hairdressing and 30% beauty and her employer said her work had been 90% hairdressing and 10% beauty;
• The applicant told the Tribunal that she had worked from 10:00 a.m. until 5:00 p.m. until she married and then from 11:00 a.m. until 5 pm, but the employer’s evidence was that the applicant’s work hours had not changed over time;
• The applicant said that 3 hairdressers had worked at the salon, but the employer said that there had been there had only been 2 hairdressers;
• The applicant had told investigators from the Australian High Commission in India that she was famous for bridal makeup in the area of India where the hair salon was located, while in her evidence to the Tribunal she said that she was well known for her hairdressing skills.

Was all of that sufficient to be fatal to the application?

No, it was not.

Why not?

Because the evidence before the Tribunal, from the applicant, the applicant’s husband, and the employer, was all to the same effect and all confirmed that the applicant had indeed worked at the hair salon in India.

It was the Federal Circuit Court’s view that the inconsistencies in the evidence all related mostly to matters that were either immaterial or inconsequential.

The inconsistencies that were identified by the Tribunal were not, in the view of the Court, sufficient to refute the basic claim that the applicant had in fact been employed at the hair salon.

In fact, the Court took the view that the Tribunal’s reliance on the minor inconsistencies in the evidence amounted to “jurisdictional error”.  The Court found that the Tribunal’s determination that the applicant had not worked at the hair salon in India was so unreasonable that no reasonable Tribunal acting reasonably could have made that determination.  Therefore, the Tribunal’s conclusion was “legally unreasonable” in the sense proclaimed in the famous High Court case of Minister for Immigration and Citizenship v Li and Anor.

Registered Migration Agents and migration lawyers will be aware that it is not at all uncommon for the Tribunal to arrive at conclusions in the same way that occurred in Aulakh   the Tribunal will find some inconsistencies in the evidence, and then refer to those inconsistencies as the basis for making adverse credibility findings against the applicant or rejecting the applicant’s case in its entirety.

The result in Aulakh instructs us that even if there are inconsistencies, if those inconsistencies relate to matters that are not at the core of an applicant’s claims, then the inconsistencies may not be enough to destroy the applicant’s case.

There was another interesting aspect to this case, which was as follows:

In 2007, again, about 7 years before the hearing before the Tribunal, investigators for the Australian High Commission in India had investigated the applicant’s employment history at the hair salon in India in connection with a prior application for independent skilled migration.   The Tribunal questioned the applicant concerning the findings made by these investigators.

However, what the Tribunal did not do was to provide the applicant or her solicitor with the actual notes that had been prepared by the investigators.  All the Tribunal did was “paraphrase” what was apparently said in the notes.

The Federal Circuit Court found that the Tribunal’s failure to give the applicant the opportunity to examine the investigators’ notes, and thereby to confirm whether or not the Tribunal was accurately paraphrasing what was said in those notes in its questioning of the applicant, amounted to another “species” of jurisdictional error: 

By failing to give the applicant a copy of these investigative notes, the Tribunal had denied the applicant what the Court described as a “significant forensic opportunity”. It had thereby failed to afford her a fair hearing. And it had committed jurisdictional error.

What this tells us is that if the Tribunal wishes to question a witness about supposed inconsistencies between what has allegedly been said to Departmental officers and evidence that has been given in the course of a Tribunal hearing, the Tribunal must give the applicant a copy of the actual investigative notes or reports so that the applicant can determine whether there truly is any inconsistency.

Very important!