Category: Migration

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.

fa-220500154-document-releasedDownload

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.

Activist lawyers should stop fighting to keep criminals in Australia_ Alex Hawke _ Herald SunDownload

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].

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.

It is not to the point that the Minister as personal non-compellable discretions that could bring about a different result

There are many cases which confirm that it is not to the point that the Minister as personal non-compellable discretions that could bring about a different result.

See eg NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [107]:

…it is not relevant to this circumstance that four of the applicants are (like NBMZ) in community detention or that the Minister has discretions under the Act which have not been exercised.

Active intellectual process required for protection claims, not just s 501CA representations

The contention that claims and evidence do not require active intellectual consideration (ie that Omar does not apply) to protection claims and that Omar instead is confined to s 501CA matters is made with alarming frequency.

In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [36] the Full Court said:

… Thus, in MZYPW v Minister for Immigration and Citizenship [ie not a s 501CA matter], the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J).

This is precisely the requirement confirmed in Omar that consideration requires findings of fact ‘one way or the other’.

Getting a witness to repeat a story multiple times will almost always produce an ‘inconsistency’

This proposition is obvious, and the resultant ‘inconsistency’ does not demonstrate that the witness is lying. The popular example used by Irving Younger of Max Steuer’s cross-examination in the Triangle Shirt Waist Factory fire case is a case in point: the witness there may well have fabricated her evidence, but it is self-evidently not always the case that an ‘inconsistency’ is an indicator that thw whole story is made up.

Nevertheless, particularly in immigration, decision-makers all too often seize on tiny ‘inconsitencies’ which only arise because the applicant has been forced to repeat his or her narrative multiple times over many years.

In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

The nonsense of a concept of ‘zero’ risk of re-offending

In Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [102]-[103], the Tribunal said:

102. To quote Dr Freeman: “In forensic psychology, we can never say there is no risk, because that’s not a concept that we can accept, but…using the structured professional judgment, my experience in regards to this matter is it’s very unlikely that Mr Vargas is going to engage in any more impulsive behaviours where he threatens anybody, puts his hands on anybody…”[77]

103. I have misgivings about the veracity of any propounded submission – either by an Applicant or a Respondent in a case such as this – about a decision-maker having to reach a point of satisfaction regarding an Applicant having a “zero chance” of recidivism. Surely such a concept can only exist on a hypothetical basis and, to the extent it exists at all, it can only apply to an extremely narrow sector of our community such as the very young or infantile population. The simple physical reality is that every able-bodied or otherwise physically self-sufficient member of our community can harm any other member of our community at any time.