0. Merits Review and the legal practitioner
Nicholas Poynder
Frederick Jordan Chambers
Sydney
Law Council of Australia: MERITS Review 24 February 2017

1. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
How do you think the nature of merits review of immigration matters has changed in recent years?
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

2. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

3. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
With the merger of the MRT and RRT with the General Division of the AAT from 1 July 2015 there are now good reasons to standardise the procedures for each division of the AAT.
There is now too much at stake before the MR Division of the AAT not to have the procedural protections available for migration/refugee cases in the General Division.
Not just Protection visas; there are now extremely serious issues before the MR Division – for example, cases involving criminal allegations such as:
Failure to meet Condition 8564 (holder not engage in criminal conduct), cancelation of BVEs under s 116(1)(g), reg 2.43(1)(p)(ii) (BVE holder charged with an offence)
No good reason why applicants effected by these provisions should not have access to the same protections as are available in the General Division for s 501 character cases.
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

4. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
Cases in the MR Division of the AAT are now complex and heavily weighted in evidence.
They are expensive to run.
Why, then, do experienced practitioners in refugee hearings have no right of appearance?
Why are experienced practitioners in migration general hearings:
not called “representatives”, but “assistants”: see s 366A(1);
required to sit mute during hearings: see s 366A(2); and
Rely on the Tribunal member to find there are “exceptional circumstances” justifying addresses: see s 366A(2)?
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

5. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
It is to be expected that, before too long, the monopoly of migration agents in the Tribunal will be removed, and legal practitioners will have an unrestricted right to represent migration applicants: see Independent review of the Office of the Migration Agents Registration Authority (2014).
We who are migration agents have become used to – perhaps acquiescent? – to the procedures in the MR Division.
But how’s it going to be when criminal or commercial solicitors and barristers start appearing in the MR Division and get told that they cannot say anything, or ask questions?
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

6. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
They might get a little:
ANGRY!
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

7. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
Or:
UNRULY!
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

8. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
I think that now is a good time to revisit the inquisitorial procedures of the MR Division of the AAT; to recognise that it needs to be brought into the 21st century, where applicants are entitled to appear with a representative who has some input into the conduct of the hearing.
That way, unsuccessful applicants can at least leave the Tribunal knowing that everything has been done to save or obtain their visa.
In this way, at last for legal practitioners, it may lead to the restoration of some…
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

9. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
NOT ENOUGH CHANGE!
CALM!
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

10. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What do you think good merits review looks like from your perspective of the conduct of practitioners in assisting review applicants?
Independence
Fairness
Consistency
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

11. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What do you think good merits review looks like from your perspective of the conduct of practitioners in assisting review applicants?
Independence:
Appointments to the Tribunal.
Personnel
Length of appointments
Country information.
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

12. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What do you think good merits review looks like from your perspective of the conduct of practitioners in assisting review applicants?
Fairness:
Credibility
Inconsistencies
Demeanour (not in IAA)
Surprise evidence in hearings
Listings
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

13. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What do you think good merits review looks like from your perspective of the conduct of practitioners in assisting review applicants?
Consistency:
Personnel
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

14. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What are the most pressing current challenges/issues for merits review of migration matters? What challenges/issues do you see on the horizon?
Evidentiary issues in cases involving criminal allegations.
Knowing what the Tribunal has:
Summonses
Access to documents:
Inspection (General Division)
S 362A and FOI (MR Division)
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

15. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What are the most pressing current challenges/issues for merits review of migration matters? What challenges/issues do you see on the horizon?
Making submissions on the evidentiary value of documents in cases involving criminal allegations.
Tribunal not bound by the rules of evidence: s
However the principles behind the rules of evidence may assist in a fair hearing:
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228;
Sullivan v Civil Aviation Safety Authority (2104) 226 FCR 555; [2014] FCAFC 93 (Sullivan) at 560 [8]
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

16. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What are the most pressing current challenges/issues for merits review of migration matters? What challenges/issues do you see on the horizon?
Transcripts of interviews are generally admissible: see s 64(2) Evidence Act
Judges sentencing comments are admissible: see s 178(1)(b) Evidence Act – but not as the basis for a factual finding in subsequent proceedings – see s 91 Evidence Act; rather, it is evidence of the elements of the offence with which the person was convicted, but not of the detailed facts found by the sentencing judge.
Can sometimes “go behind” the conviction to say “I didn’t do it”: see, e.g., Minister for Immigration v Ali (2000) 106 FCR 313; esp. at [41]-[45]
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

17. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
What are the most pressing current challenges/issues for merits review of migration matters? What challenges/issues do you see on the horizon?
With the above in mind, what possible evidentiary value is there in:
Police Facts Sheets prepared by an anonymous prosecutor?
Prison Records where the maker of the records is not available?
Probation and Parole reports where the maker is not available (c.f. common requirement to have applicant’s forensic psychologist available for cross-examination)
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

18. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
The Senate report on the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill How do you see this affecting merits review in practical terms?
Section 362A
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

19. The use/importance of medical evidence in merits review.
Rares J, Using the "hot tub" – How concurrent expert evidence aids understanding issues (available from the Federal Court website)
See Rule Federal Circuit Court Rules 2001
An example: BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [25]ff
Law Council of Australia: MERITS Review 24 FEBRUARY 2017

20. Law Council of Australia: MERITS Review 24 FEBRUARY 2017
THANK YOU!
Law Council of Australia: MERITS Review 24 FEBRUARY 2017