Australian Immigration Daily News

Ok everyone, it’s time for a Friday quiz!

How many of you are familiar with the lyrics from the George and Ira Gershwin song: “Let’s Call the Whole Thing Off”, from the 1937 (!!) Fred Astaire-Ginger Rogers (who?) film “Shall We Dance”:

“You say either and I say either,
You say neither and I say neither
Either, either neither, neither
Let's call the whole thing off.

You like potato and I like potahto
You like tomato and I like tomahto
Potato, potahto, tomato, tomahto.
Let's call the whole thing off”

(Don’t blame me, 1937 was before my time too, believe it or not (barely!!!)) (Take my word for it, this is wonderful stuff, watch it on You Tube by clicking here.)

What in the world does that have to do with migration law? A lot!!!!!! Keep reading!!!!!!!!

If you have been dutifully reading this blog every day (severe punishment including flogging or worse will be scheduled for anyone who admits they haven’t been!!) you will recall that earlier this week I posted an article about the Aulakh case and the implications of that case for challenging factual findings of the Tribunal.

Well, there’s another important case on that same subject that was handed down by the Full Court on 24 March and that appeared on Austii earlier this week, Gill v Minister for Immigration and Border Protection (2017).

And the case shows that you can successfully challenge adverse factual findings of the Tribunal!!!

It ain’t easy, but it can be done!!

This was the story in the Gill case:

The applicant was seeking a “Skilled (Provisional) visa” (presumably a Subclass 885 visa).

The applicant nominated the skilled occupation of “Cook” in his visa application.

In support of his application for a skills assessment by the Trades Recognition Authority, he submitted a “work experience letter” from a claimed previous employer about his employment history as a cook.  This letter described the various duties it was said that the applicant had carried out while working at an RSL and listed the dishes that it was said he prepared at the RSL.

This list of dishes included “rissoles” and “chicken schnitzel”.

Unfortunately for the applicant, the Department received information from another former employee of the applicant’s employer that some of the work references that had been prepared by the employer were not genuine.  After giving the applicant an opportunity to comment on that information, the Department proceeded to refuse the application on the grounds that the work reference letter that had been given to the TRA was a “bogus document”.  So the visa application was refused on the basis that PIC 4020 was not satisfied.

The applicant then sought merits review of the refusal in the Tribunal.

And that is where the soup in this case really began to boil.

The Tribunal member questioned the applicant about the recipes and methods that he had allegedly used in preparing some of the dishes that were referred to in the work experience letter.

To start with, the Tribunal asked the applicant how he had prepared “risotto” (even though risotto was not mentioned in the work experience letter as one of the dishes that the applicant had prepared). The applicant apparently understood that the Tribunal was questioning him about “rizolos” or “rissoles”.  Accordingly, he answered that he had prepared the “rissoles” by using “rice and flour”. 

However, the Tribunal considered that the applicant had been referring to the method he had used for preparing “risotto”. And it disbelieved that the applicant had cooked “risotto” with rice and floor.

The Tribunal also questioned the applicant about how he had prepared chicken schnitzels. The applicant was asked how he had “crumbed” the schnitzels. His answer was that he had done so using oil and baking powder. However, the Tribunal also disbelieved the applicant’s evidence on that issue, because the member believed that baking powder was not in fact used in crumbing chicken schnitzels.

On the basis of its doubts about the credibility of the applicant’s evidence, the Tribunal formed the view that the work experience letter was not genuine. And therefore it proceeded to affirm the Department’s refusal of the visa application.

Are you still with me, or has reading this far made you so hungry that you have decided to forget about the rest of the article and run out to get some food? Keep reading, please!

So, how was it possible for the applicant to overcome the adverse factual findings of the Tribunal?

The legal standard for challenging a factual finding is extremely high.  As discussed in Gill, the authorities say that in order to show jurisdictional error based on an erroneous finding of fact, it is necessary to demonstrate that the finding was illogical or irrational.  It is necessary to show that the illogicality or irrationality was “extreme” – it’s not enough to show that “reasonable minds could differ” about the finding of fact.

Luckily for the applicant in Gill, that type of extreme illogicality or irrationality was found to have occurred in his case.

For one thing, the Full Court found that the Tribunal’s adverse credibility findings about the applicant’s evidence concerning the preparation of “risotto” was based on a fundamental misunderstanding of the applicant’s evidence. The Full Court concluded that there had been a “total breakdown of communication” between the applicant and the Tribunal, with the applicant giving evidence about “rissoles”, while the Tribunal erroneously believed he was providing answers relating to “risotto”.

Accordingly, the Full Court determined that it was not open to the Tribunal to make adverse credibility findings concerning the applicant’s evidence about “risotto”, because in fact the applicant had been giving evidence which he believed related to “rissoles”.

The chicken schnitzel evidence was also fatal to the Tribunal’s decision in this case!

The Full Court found that it was not open for the Tribunal to make adverse credibility findings against the applicant on the basis of the Tribunal’s erroneous belief that baking powder was not used in crumbing chicken schnitzel.

There was no evidence before the Tribunal to support the finding that baking powder was not used in crumbing the schnitzel. So the Full Court found that the finding was illogical.

So there you have it. A visa application saved by a rissole and a piece of chicken!

You read it here first!