LCA IMMIGRATION LAW CONFERENCE - PowerPoint Presentation

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LCA IMMIGRATION LAW CONFERENCESYDNEY 24-25 FEBRUARY 2017

The Changing Landscape of Merits Review

Roz Germov

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Barrister and Registered Migration Agent 9256819Slide2

The changing landscape of merits reviewInquisitorial 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 4.17-4.18persons 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 providedSlide3

The changing landscape of merits reviewHow 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

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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

183

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 2017. This will apply to mandatory cancellations made on or after commencement. Royal assent is expected shortly.Slide4

The changing landscape of merits reviewThe 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.473DCSlide5

The changing landscape of merits reviewThe 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 reviewSlide6

The changing landscape of merits reviewPractical

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

D

ivision 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 summariesSlide7

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 lawSlide8

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 requiredSlide9

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

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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]."