MIGRATION – APPEALS TO THE FEDERAL COURTS

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In appropriate cases, you can:

  • have applications for review adjourned at the Administrative Appeals Tribunal (AAT)
  • raise new grounds of appeal at the Federal Courts

Unreasonable Refusal of Adjournments

In a Federal Court of Australia case, an opportunity was given to the Appellant to have their matter reconsidered by the AAT.

Section 427(1)(b) of the Migration Act allows a matter to be adjourned from time to time. This section is preconditioned by the requirement that the exercise to provide an adjournment must be imposed reasonably. The High Court case of Li concerned a similar provision which clearly set the precedent that an adjournment was conditioned by the requirement that it be exercised reasonably.

In the case of BKQ16 v Minister for Immigration & Border Protection, it was held that the Appellant might have been assisted if he had legal representation. That the Appellant’s desire to have legal representation for a subsequent hearing would have greatly assisted him in managing a difficult legal situation. Appropriately, it was found that the AAT’s reasoning lacked consciousness, and that the Tribunal acting reasonably should have appreciated this factor and adjourned the hearing. In this instance, there was a need for an interpreter and the finding that the Appellant had an inability to make proper submissions as a lay person.

Note, each such case is based on its facts.

What is important is what is fair and just to an Appellant. This is captured by section 353 of the Migration Act.

Raising New Grounds of Appeal

Particularly, where an Appellant is not legally represented, but also where legally represented, a new ground of appeal can be added, provided the Court is of the view that the ground has merit. This was held in the Federal Court of Australia case of AJL16 v Minister for Immigration & Border Protection. The fact that the appellant was not represented at the AAT and Federal Circuit Court assisted the Appellant.

Conclusion

Where you find yourself in the appeal processes in the Federal Courts, and you are unsure of whether you have the requisite grounds to appeal a matter, or where grounds have not been previously raised with the AAT or a Federal Court, advice should be taken as to whether there are any prospects of amending your application to include grounds which have better prospects of being successful. This, no doubt, will have the possible effect of having your matter remitted to the AAT, and the decision of the AAT or subordinate Federal Court Orders dismissed.


Rodney Sahay is a Lawyer and Registered Migration Agent with over 30 years of experience in representing clients at the Administrative Appeals Tribunal and Federal Courts.

1 October 2019

 

Category: All / Migration