Judicial Review Notes In Migration Law

“The primary purpose of administrative law therefore is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok”. Those words from Wade & Forsyth, Administrative Law (7th Ed), aptly describe the role of the Federal Court.

There are some apposite recent examples. In  ALN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1592, Gleeson J found that that  these words below did not identify with “clarity” what the deadline was for filing an application to the AAT:

As you are in immigration detention, the prescribed timeframe commences on the [end of page 1] day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day).

Therefore the notice did not comply with s66 of the Migration Act which, as relevant, required

“Notification of a decision to refuse an application for a visa must:

(d)        if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:

(ii)        the time in which the application for review may be made;”

Imagine a person in a detention centre trying to work out what those words in the letter meant. There is no extension of time provision in the AAT, once the time is missed the AAT has no jurisdiction. Here a person reading that sentence may be confused, the first day was a Wednesday so that the application had to be lodged by the following Thursday, even a seasoned lawyer might be confused by the working in the letter. So the decision in ALN19 did stop “the engines of government running amok”.

Is a person ‘evasive’

Sometimes the tribunal of fact (even if it a judge) makes a broad statement like that applicant was ‘evasive’ and therefore not to be believed. In this case this broad finding was made by a judge of the Federal Circuit Court. But a Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53, found that the transcript did not justify that finding. The Court in a joint judgment emphatically made these findings:

120.There is nothing evasive about the first appellant’s answers. She should not, of course, have been placed in a position where she was required to answer such a series of forceful leading questions from the Judge hearing her case, adverse to her narrative, where both parties were ably represented. Nevertheless, she answered them directly. The finding of “evasiveness” cannot be supported by reference to the evidence the first appellant gave, in the terms she gave it.

121.Recognising the well-established difficulties in relying on witness demeanour, but also recognising it has a role to play in a system dependent on oral evidence, if there was something “evasive” in the first appellant’s demeanour (rather than her actual answers) which contributed to the primary judge’s conclusion, then this should have been set out in the reasons. Its absence means this Court cannot conclude that the primary judge based his “evasiveness” finding on anything he observed about the demeanour of the first appellant in the way she gave her answers to his questions…….

128.Again, it may well have been open to a court to reject the first appellant’s explanations, once the proposition that she had been complicit in the fraud from the outset was put to her, but if that was to occur, there needed to be some reasoning and justification for such a finding. There was none. The global finding at [39] that the first appellant was not a “witness of truth” adds little. It plainly does not mean what it says, as the primary judge accepted and relied on aspects of the first appellant’s narrative in her evidence. Whatever it does mean was not explained. The finding in [35] does not save the reasoning of the Federal Circuit Court, or ameliorate the errors in its fact-finding.