Memorandum of Advice -Jurisdictional Error, Case Analysis in Migration Law

Assignment Task

Scenario

You are a registered migration agent in a small firm. Your supervisor has just returned from an Administrative Appeals Tribunal (AAT) hearing that did not go well. He is expecting an unfavourable outcome when the Tribunal hands down the decision, and has sent you the following email asking you to conduct some research.

Our client Caitlin O’Halloran married her sponsor, Alex Karev, in October 2019. He is an Australian citizen. She applied for Partner visas without professional assistance. They did not provide sufficient evidence to satisfy the delegate that she and Alex were in a genuine and continuing relationship. The delegate refused the subclass 820 visa application on the basis that Caitlin was not Alex’s spouse as defined in s 5F of the Migration Act 1958.

Caitlin and Alex engaged us to lodge an application for merits review. Both of them signed our Service Agreement. We provided a lot of evidence to prove that they were in a genuine and continuing relationship, including shared financial records, photos and evidence from friends as to the social aspects of their relationship, the nature of the household and the nature of their commitment to each other. I was pretty confident we would succeed.

We had the AAT hearing today. At the very end of Caitlin's evidence, without any warning at all, the Tribunal Member told me that she had a certificate issued under s 376, protecting ‘dob-in’ information from being disclosed to Caitlin. She showed me the certificate and gave me a minute to read it. It stated that a particular folio of Caitlin’s file contained an ‘allegation of significance’ given to the department in confidence; and that s 375A of the Act did not apply to that folio because the s 376 certificate did not specify that the information in the folio could only be disclosed to the Tribunal.

Then the Tribunal Member told Caitlin that the dob-in letter said that Alex had been in a de facto relationship with another woman for 10 years, that he had three children with that woman, and that he still lived with her and their children. The letter alleged that Alex married Caitlin so that his real partner could obtain Centrelink benefits as a single parent.

Caitlin asked to see the letter but the Member refused. I recall a case, Bui v Minister for Immigration & Anor [2019] FCCA 3363 (21 November 2019), where a merits review applicant tried to get access to a ‘dob-in’ letter. The court held that it was subject to public interest immunity because disclosing the document would disclose the identity of its writer, and that would breach confidence, and make the provision of similar ‘dob-in’ letters less likely in the future. This probably means that the ‘dob-in’ letter in Caitlin’s case is subject to that same public interest immunity, and the Tribunal was not obliged to give us a copy, or disclose the identity of the writer.

Caitlin was very upset. She was adamant that Alex does live with her. She explained to the Tribunal that Alex had children from a previous relationship. The children had actually attended their wedding, and stayed with them at their home on some weekends and during school holidays. [Some of the photos we provided were of Caitlin and Alex with the children.] Alex was outside the hearing room until he gave his evidence. When Alex came in the Member did not ask him about his earlier relationship at all. I asked him about it after the hearing and he confirmed that he does have three children with another woman but the youngest is five years old and his relationship with their mother ended before he married Caitlin. This is what he told me before we lodged the review application and it was set out in his statutory declaration.

I asked if we could have the address where Alex was supposedly residing, but the Member refused. The member also denied my request for an adjournment to allow me an opportunity to make submissions responding to the allegations. I don’t understand why the Tribunal did not invite us to respond before the hearing under s 358 of the Act. I know that s 359AA(1) allows the Tribunal to orally invite an applicant to comment on or respond to adverse information but what happened here just does not seem fair.

I’m planning to send in post-hearing submissions anyway. The Member will have to take them into account if I get them in before she makes her decision, so I’d be grateful if you could look at some relevant cases and give me your opinion as to whether a court is likely to find that the Tribunal made a jurisdictional error here. Please consider Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72, and how it might apply here. Bui v Minister for Immigration and Border Protection [2022] FedCFamC2G 265 (13 April 2022) might assist us too, so please analyse that case as well.

There’s one other thing I’d like you to look at for me please. I’ve just received an email from Alex asking if he could meet with me privately before I meet with him and Caitlin again. He wrote that he needs to tell me something in confidence. I’m a little worried about why he wants this meeting. If there is substance to the ‘dob-in’ allegations it will mean that his statutory declaration contains false information. Section 99 of the Migration Act 1958 operates to make the statutory declaration part of the visa application, and Caitlin will have an obligation under s 105 to notify the department if it contains any incorrect or misleading information. Could you please advise what my ethical obligations are here? What if he tells me that the allegations are true, but he does not want Caitlin to know? Can I keep his confidence? Can I keep acting for them?

I’ll need your Memo before I arrange any further meetings with Alex or Caitlin, thanks.

Your Task 

Provide a Memorandum of Advice to your Supervisor as to:

• The facts in Bui v Minister for Immigration and Border Protection [2022] FedCFamC2G 265 (13 April 2022) (Bui’s case) and whether they differ significantly from Caitlin’s case;
• The outcome in Bui’s case including how Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72 applied and how the decision in Bui’s case applies to Caitlin’s circumstances;
• Whether Tim is under an obligation not to tell Caitlin if Alex confesses that he is still in a relationship with the mother of his children and asks him to keep his confidence; and
• What Tim’s ethical obligations are if Alex tells him the ‘dob-in’ allegations are actually true?

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