Be Careful What You Attach When Applying for a Merits Review Application at AAT
Let’s explore DTW17 v Minister for Immigration and Border Protection [2019] FCA 1622. The case concerns the protection visa holder whose visa was canceled due to the operation of s109 providing incorrect information.
What Did the Applicant Do When Appealing at the Tribunal
When appealing to the Administrative Appeals Tribunal (AAT), the Appellant provided the Tribunal with the visa cancellation decision record. The Tribunal affirmed the decision of the Department to cancel the visa. In the Tribunal’s decision record, it referred to the Relevant Information as “comprising part of the reasons for affirming the delegate’s decision”, but made no express reference to the delegate’s decision record in that context. Before making its decision, the Tribunal has never given the relevant information which would comprise part of the reasons for affirming the Department’s decision to the Appellant.
The particular section of the Migration Act which needs to be considered is s424A.
S424A of the Migration Act 1958 Information and invitation given in writing by Tribunal
1. Subject to subsections (2A) and (3), the Tribunal must:
a. give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
b. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c. invite the applicant to comment on or respond to it.
2. The information and invitation must be given to the applicant:
a. except where paragraph (b) applies--by one of the methods specified in section 441A; or
b. if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
2A. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
3. This section does not apply to information:
a. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
b. that the applicant gave for the purpose of the application for review; or ba. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
a. that is non-disclosable information.
A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Tribunal’s Decision on the Case
Before the Tribunal made its decision, the Appellant requested the Tribunal to make a teleconference with a witness whom the Appellant claimed to work at the Iranian Embassy in Canberra. The Tribunal refused to do so because it was impossible for it to determine the identity of the witness.
The Appellant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision, but the FCCA dismissed the application.
Three questions to be considered:
1. If the Tribunal can establish that the Appellant provided the Tribunal with a particular piece of information for the purpose of review, does it require for the Tribunal to put on notice that that information would be the reason for affirming the decision that is under review?
In our case of interest, no because due to the operation of s424A(3)(b), s424A(1)(a) does not apply to information that the Applicant gave for the purpose of the application for review.
2. Was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant specifically requested on the basis that it was impossible for it to determine the identity of the witness?
In our case of interest, no. It was not legally unreasonable. The Tribunal had an evident and intelligible justification for not doing so: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63]-[76]. I consider both of the reasons provided by the Tribunal at [20] of its reasons to have this character.
3. Was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant specifically requested on the basis that the phone call could lead to the Iranian government being informed of the Appellant’s protection claims?
The witness whom the Appellant was referring to is the person who the Appellant worked with at Iranian Embassy. It is difficult for the Tribunal to ask questions about the genuineness of the Appellant’s passport without disclosing his own identity (i.e. as a Tribunal member), the Appellant’s identity and the fact that the call related to a hearing about a protection visa. If the person in fact works for the Iranian Embassy, this would give rise to the government being informed of the Appellant’s protection claim.
What Did We Learn From This Case?
So what can we learn from this? When making an application for merits review at the AAT, it is in the best interest of our clients not to upload the decision record.
How Can Agape Henry Crux Help
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