List of AAT members whose appointments were ‘extended’, possibly unlawfully, by Attorney-General Michaelia Cash

The ‘extension’ of the appointments happened apparently on 9 May 2022. The members in question:

MemberOriginal end date
Dragovic29 May 2023
Owen30 June 2024
Synon16 December 2023
Younes30 June 2024
Bellamy7 April 2024
Bishop30 June 2024
Cipolla30 September 2026
Watts26 May 2026
Cullen30 June 2024
De Bono7 April 2026
Dordevic30 June 2024
George1 December 2023
Kennedy27 September 2024
Kirk29 January 2024
Longo31 December 2024
Morris30 November 2024
Trotter29 September 2023
Westaway30 June 2024
Grigg30 June 2024
Hewson30 September 2024
Petrovich1 December 2023

Source:

As to potential unlawfulness, see:

Evidence of bias by former Minister for Immigration

Here is the incendiary speech delivered by former Minister for Immigration, demonstrating a total disregard of the rule of law. Apart from the disgraceful attack on lawyers, note the proposition that he thinks that a less-than-100% success rate by him in litigation somehow indicates courts were upholding unmeritorious judicial review cases.

Noting the double-might nature of the test for apprehension of bias, how could this speech not possibly demonstrate such an apprehension?

See also the extensive work done by the ALRC in relation to apprehension of bias.

The speech was electively leaked to the Daily Telegraph after it was delivered. A full copy was only made accessible to the public after an FOI request.

The Tribunal not being aware it had a discretion to inform itself so as to avoid the two-day rule is a misunderstanding of the law

In Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945, Jackson J found:

… in appearing to direct itself that s 500(6H) prohibited it from taking into account anything of which there had not been 48 hours’ written notice, the Tribunal conducted its review on the basis of a misunderstanding of the applicable law. If that misunderstanding was material, the Tribunal fell into jurisdictional error.

This is similar to the error in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 and the misunderstanding that there was no residual discretion.

Each obligation to “have regard to” information is an obligation to engage in “‘an active intellectual process’ directed at the information”

See DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375 at [12].

It is entirely permissible to read reasons in respect of s 473DD and infer from what is not said that things were not considered

The Minister’s recycled argument that there is ‘no duty to give reasons’ in respect of s 473DD, and that it is not permissible to infer from what is not referred in reasons that the thing not referred to was not considered, was rejected in AUS17.

Although not subject of express analysis, this can be the only consequence of the reasoning of the plurality.

After confirming that s 473DD(b)(i) and (ii) are mandatory relevant considerations for s 473DD(a), the plurality said at [17]-[18]:

17. The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms:
"I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information."
18. Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).


In the Minister’s written submissions in AUS17, the recycled argument relating to the absence of a duty to give reasons in respect of a s 473DD decision appears at [46] and [51].

At the hearing, the following exchange also occurred:

EDELMAN J: Do you accept that, conversely, if there were circumstances that were so glaring or important that a failure to mention those circumstances might justify an inference that those circumstances had not been considered?

MR KENNETT: That may occur . …

See also the written reply submissions at [9] which contend that s 473DD findings are always material to the eventual decision and so therefore there is actualy a ‘duty’ to give reasons in respect of s 473DD, and the plurality at [6].

‘Materiality’ is back-door merits review: it even insulates credibility reasoning that was affected by actual legal error

See BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [119]ff where the Court dissects a credibility finding, and concluded that the Tribunal would have used the same credibility reasoning even if it had not asked improper questions requiring waiver of privilege, and denied the applicant the procedural fairness he should have been given–and even when those errors went directly to the credibility reasoning that was actually adopted.

‘Not open on the evidence’ is not the same as ‘no evidence’

The persistency with which these two separate jurisdictional errors continues to be conflated by the Minister deserves calling out.

Justice Perry did so in BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036 at [23]:

A finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point.

The IAA’s ‘visual impression’ that it forms based on observations in an interview is ‘new information’, and so should impressions based on reviews of audio or video recordings

If the IAA interviews an applicant, it might them form an impression of the demeanour of the applicant. This impression is ‘new information’ and attracts the obligation to invite comment, under s 473DE. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:

... The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility[27] and which was not before the Minister when the delegate made the referred decision[28].

See also [17]:

Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate[31], the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment[32]. ...

By parity of reasoning, the IAA’s impression it forms based on observations it makes from listening to or watching a recording should also be ‘new information’, because these impressions are also ‘knowledge of an evidentiary nature’.

Hence, it is unreasonable if the IAA ([25]):

... without good reason, ... does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.