Reining in the Tribunal

By Lorenzo Boccabella, Barrister-at-law, specialist in migration law

By Lorenzo Boccabella, BA, LLB, a specialist in migration law (01 September 2020)

Often at hearings, the Tribunal raises an issue not raised in the refusal decision by the delegate. This can leave an applicant in a nervous state and an advocate unprepared, both leading to the best case not being put forward at the hearing.

There is a technique to stop the Tribunal doing that and it comes from a couple of decisions in the courts combined with the use of the some of regulations. The situation differs slightly in relation to non-visa cases (ie sponsorships or nominations) and those situations will be dealt with at the end.

In SZBEL v MIMIA [2006] HCA 63 (15.12.06), the High Court examined the difficult issue of the RRT member remaining silent during a hearing and then deciding the matter adverse to an applicant on issues not raised during the hearing and not raised in the refusal decision by the delegate. The High Court (at para 32) endorsed what the Full Federal Court said in Cmmr for ACT Territory Revenue v Alphaone (1994) 49 FCR 576

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” (emphasis added) 

 So what needs to be done in the days leading up to the hearing a letter should be sent in these terms to the Tribunal:

“We act for the Mr X. The visa was refused because the delegate concluded that the applicant did not meet the criteria in paragraph X of the Migration Regulations, in summary because…[here insert a brief synopsis of the reason for refusal].

This case before the tribunal is being prepared and presented solely on the basis that that issue raised by the delegate is the only issue before the Tribunal.

We note s. 349(2)(c) of the Migration Act which states :

‘The Tribunal may

(c)      if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal  as are permitted by the regulations;’

A prescribed matter is defined in Reg 4.15 :

‘Reg 4.15  Tribunal’s power to give directions

(1)  For paragraph 349(2)(c) of the Act (which deals with the Tribunal’s power to remit):

(a)  an application for a visa….is a prescribed matter; and

(b)  subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa….’

Hence this matter is being conducted on the basis that the applicant will seek an order from this tribunal, setting aside the refusal and remitting the matter for re-consideration with ‘a direction that the applicant must be taken to have satisfied’ the criterion for the visa of [here insert the relevant criterion].

In this regard, reference is also made to the paragraph 8.2 of the direction from the Principal Member entitled Conducting Migration and Refugee Reviews dated 1 August 2018 which reads :

‘As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.’

Should there be any matter the tribunal may wish to raise with the applicant, not raised or averted to in the reasons for decision of the delegate, formal request is made for the tribunal to disclose those matters to us as the applicant’s representative well prior to the hearing.

WORKSHOP CALENDAR

THE EXISTENCE OF ANY CERTIFICATES

In some instances, the Minister (or his or her delegate) may have issued a certificate under s375A of the Migration Act, which ‘has certified..that the disclosure.. of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate’. In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 [Avtar Singh], the Full Federal Court found that a copy of such a certificate must be disclosed to the applicant see [46]. Therefore formal request is made for a copy of that certificate if any exists. The court also noted at [55] “Carefully drafted particulars may have the effect of providing a fair hearing without disclosing the confidential information.”   Formal request is also made for written particulars of any such material contained in the certificate (if any such certificate exists). It would be unfair on the applicant if oral particulars were given at the hearing as then the applicant would not be able to properly prepare for the hearing or an adjournment would need to be sought.

We make a similar request for any certificates issued under s376 of the Migration Act and if any such certificate exists we formally request the opportunity to make submissions under s376(3) (b) which states that the tribunal “may, if the Tribunal thinks it appropriate …, disclose any matter contained in the document, or the information, to the applicant…”

”  SALUTATION.

What this means is that the Tribunal is then constrained from raising any other issue and if it does raise another issue the applicant can apply for an adjournment to enable the applicant to be given proper time for preparation and consideration of that other issue. It is important that the applicant take that time for preparation. The writer has seen many cases lost on the basis that the Tribunal sprung a new matter on the applicant either in the day of hearing or at the hearing itself. The result often is that the client did not present the best case he or she could have presented. A client usually has only one shot at merit review that that shot has to be the client’s best shot.

The situation is different for sponsorships, nominations and visa cancellations.  These are not prescribed matters. One goes back to s 349 to see what the powers of the Tribunal are. These powers are:

Section 349   Tribunal powers on review of Part 5-reviewable decisions

 [349] (1)      The Tribunal may, for the purposes of the review of a Part-5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

[349] (2)      The Tribunal may:

(a) affirm the decision; or

(b) vary the decision; or

(c) if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision;

Because nominations, sponsorships and visa cancellations are not prescribed matters, the ordinary order sought is to ‘set the decision aside and substitute a new decision’. Tribunals often interpret this as meaning that, for example if a nomination was refused, that the tribunal would then go on to determine the whole issue of the nomination not just the issue on which the nomination was refused on. Hence one has to go to the Tribunal armed with all the evidence necessary to meet every aspect of the nomination, not just the issue which formed the basis of the refusal.

There is an argument to raise that the power to ‘vary the decision’ could include varying it by setting aside the part of the decision which was a refusal with a determination that the applicant met the criteria in dispute. However the writer has not attempted such a course, preferring the other course of going to the tribunal fully armed with all the material necessary to prove that all the criteria for the nomination is met.

The above applies equally to sponsorships.

Visa cancellations are different in that a visa is refused for a particular reason and if that reason is shown to be wrong or the discretion was not properly exercised then the cancellation is simply set aside. Hence in visa cancellations there is some value in writing a letter informing the Tribunal that the case is prepared on the basis of dealing with the issue raised by the delegate and at the same time asking the tribunal to draw to the applicant’s attention any matters not raised in the reasons for decision which the tribunal may wish to raise at the hearing.

Tribunal success is based on good preparation, the above is just one example of that preparation.

ENDS