1. LCA IMMIGRATION LAW CONFERENCE SYDNEY 24-25 FEBRUARY 2017
The Changing Landscape of Merits Review
Roz Germov – Barrister and Registered Migration Agent

2. The changing landscape of merits review
Inquisitorial process has become increasingly constrained by prescriptive legislative amendments
Time limits for responding to invitations to comment – Section 359B(2) applies to information to provided in writing – if no period is prescribed it must be a reasonable period. In short the prescribed periods are 14 days for non-detainees; and either 2 or 7 days for detainees depending on which provision applies to the person seeking review: Reg persons in detention: reg 4.17(2) and (3). The Tribunal can extend these periods by the same amount of days respectively reg 4.18A-4.18B
Not as much use is made of invitations to comment as in previous years – there seems to be an increasing tendency to go straight to hearing even if extensive pre-hearing submissions and documents have been provided

3. The changing landscape of merits review
How and when adverse information must be put to applicants: ss359A/359AA/424A/424AA
Proposed new s.359A(4)(aa) of the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 will provide that the Tribunal is not obliged to give particulars of adverse evidence to a review application if the information was included or referred to in the primary decision
Proposed removal of s.362A by the Harmonisation Bill – which entitles the applicant to have access to all written information before the Tribunal – very useful and far superior to FOI. It should apply to the protection visa reviews. It is important to know what you don’t know viz – existence of section 375A or 376 Certificates. The Full Court in MIBP v Singh [2016] FCAFC decided Tribunal must disclose the existence of the s.375A certificate so applicant can have the opportunity to challenge it or request the Tribunal to specify the nature of the excluded information.
Proposed new section 360A(1) which will oblige applicants to notify Tribunal of witnesses before the hearing date
Character refusals and cancellations do not have the benefit of full AAT review rights. A special procedure applies to these cases: applicant has 9 days [s.500(6B)] from notification to lodge a review application with AAT and AAT has 84 days from the date of the decision to decide the case or the original decision will be deemed affirmed [s501(6L)(c)]. This restrictive time limit now extends to applications involving appeals against decisions not to revoke mandatory cancellations: Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 – passed by the Senate on 13 February This will apply to mandatory cancellations made on or after commencement. Royal assent is expected shortly.

4. The changing landscape of merits review
The requirement for the Tribunal to draw adverse inferences where refugee claims are not raised at first instance: s.423A
Proposed inclusion of section 358A by the Harmonisation Bill will extend this to non-refugee decisions so that where new claims or evidence arise after the primary decision and before the review decision is made.
Oral decisions: s. 360D/430D
Dismissal of applications for non-appearance: s.362B/426A
Guidance decisions. These must be followed unless clearly distinguishable: s.353B/420B
The codification of refugee law and elimination of the reasonable practicality of relocation test. Most of the codification encapsulates the case law but now there is less flexibility as case law can always be distinguished
IAA – no new evidence or interview unless exceptional circumstances apply: s.473DC

5. The changing landscape of merits review
The strictures on the Tribunal to correct errors in its decision – it is functus officio when it is signed off : s.368(2A)/430(2A) or after the time it is given orally: s 368D(3)/430D(3). The decision cannot be varied or revoked. This means that if the matter is affected by jurisdictional error the applicant will have to go to Court: Mora [2016] AATA 4198 – Tribunal could self correct where previous no jurisdiction decisions were made due to the FCCA decision in Lee [2014] FCCA 2882 which was later overturned by the Full Federal Court in Ahmad [2015] FCAFC 182; (2015) 237 FCR 365.
Rationale was that the no jurisdiction decision was not a decision but a preliminary determination concerning jurisdiction. The Tribunal referred to the Explanatory Memorandum to Migration Amendment Bill 2013 which stated that section 368(2A) only applied to validly made decisions not affected by legal error at [67 of EM].
The Tribunal held that decision should be revisited only if the jurisdictional error is so obvious that there is no possible doubt about the outcome if the matter went to judicial review

6. The changing landscape of merits review
Practical Changes
The length of time to make a decision has expanded considerably – often due to the increased workload caused by poor quality DIBP decisions involving overly hasty refusals
Electronic lodgement of review. Different lodgement procedures apply to General Division and the Migration and Refugee Division
AAT lost its own country research section which has affected the ability of the Tribunal to make further enquiries – reliant on DIBP
No longer publishing handy DFAT country reports on its website
The demise of Precis – This was a useful summary of  AAT and Court decisions – the AAT Bulletin is not as in-depth in its case summaries

7. Best Practice Merits Review from a Practitioner’s Perspective
Early assessment of cases so that those that can be decided on the papers or without the necessity for a hearing can be dealt with quickly
Early clarification of the issues in question. Pre-hearing conferences are being conducted in Sydney but not in Melbourne. This would save time and cost to all parties involved so effort need not be spent on covering matters that are not contention. However, these only work if the Member is fully on top of their case.
Positive findings made at primary level should not be disturbed without good reason. Matter may still arise at hearings that could not be predicted at prehearing conferences.
 Members being up to date with their case law

8. Good Merits Review from a Practitioner’s Perspective
Being treated with courtesy and respect at hearings
Not making decisions before the date agreed for further evidence
Not ambushing clients in hearings with “surprise” evidence
Addressing the matters raised in the representative’s submissions
Decisions to be made should be made in a timely manner if no further evidence is required

9. Good Merits Review from a Practitioner’s Perspective
More pro-active investigation and enquiries into an applicant’s case, particularly when evidence is provided from third parties who are contactable
More deference to expert witness evidence – particularly in assessment of refugee cases concerning trauma, PTSD and other mental health issues that can impact on the applicant’s ability to put their case effectively. Members with no forensic psychological expertise override these opinions and conclude the applicant is lying because of issues such as inconsistencies in the evidence, omission of certain events; late application for protection.
In Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535 the Court of Appeal discussed the central role of expert evidence concerning the risk of recidivism in criminal matters:
"Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk: at [124]."