AAT’s Bellamy
The Administrative Appeals Tribunal produces more than its fair share of bizarro judgments and Senior Member Rebecca Bellamy’s broadside in Leo’o Olo v Minister for Rejections is a standout addition to the genre.
Her opening paragraphs set the scene:
“A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.
“However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.
“Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.”
The instructing solicitors were Zarifi Lawyers, and counsel was the well regarded Dr Jason Donnelly.
Migration lawyers of all hues are astounded at the suggestion that the applicant’s legal team lacked integrity and were dishonest in the presentation of the case.
Michael Jones, an accredited specialist in the field, posted on LinkedIn:
“The more I look at this the more concerned I get. The Tribunal has pilloried some of the most respected lawyers in the field, both counsel and solicitors, without even a nod to concepts like natural justice and the right of a client to have their case put forward without intimidation of their representatives. One hopes an appeal court will return the favour.”
A string of comments followed – critical of Bellamy’s aggressive slap-down of the lawyers.
She criticised the evidence provided by the applicant’s witnesses, yet did not provide details to justify her view that the lawyers are scrounging money from desperate people.
Here, like all cases, lawyers work with what they’ve got, even with clients who have criminal convictions.
Any person whose visa was cancelled has a statutory right of review – the Constitution says so. Regardless of any conclusions that might be drawn from excitable headlines in the Murdoch fishwraps, lawyers acting for people the government wants to deport are fulfilling a professional duty.
Michael Jones: concerned about intimidation of legal representativesFurther, the AAT is a merits review outfit and there is no requirement for cases that it hears to have a “reasonable prospect of success”.
In the Leo’o Ola instance, the lawyers were acting partly on a pro bono basis – so it can’t be said that they were lining their pockets while wasting the tribunal’s time.
If lawyers refuse to appear for migration applicants the task for the AAT in arriving at a fair outcome will be all the more wretched.
Leo’o Olo principal criminal conviction resulted in a two-year term of imprisonment for grievous bodily harm. He was granted immediate parole by the court – which would be a reasonable argument to run, yet was not sufficiently interrogated by the senior member.
The applicant will appeal Bellamy’s findings while several of the witnesses as well as the instructing solicitor are preparing to lodge complaints with the AAT.
There are complaints that Bellamy intruded issues that were not invoked by the minister, ambushed the applicant, and engaged in extended cross-examination from the bench.
Different lawyers have indicated they will run the appeal.
A boilerplate response came from a spokesmuffin to your correspondent’s query as to whether the tribunal will be “counselling” Ms Ballamy:
“Administrative Appeals Tribunal members are independent decision makers. The Tribunal does not comment on individual cases nor on the content of decisions made by members.”
Senior Member Ballamy has dealt with numerous migration cases involving applicants with criminal convictions – but without vexed swipes at the lawyers.
In Buntin and Minister for Rejections and Expulsions she overturned the department’s cancellation of a visa and allowed a British citizen with criminal convictions to remain in Australia.
The applicant has multiple sclerosis, which may have been why the senior member smiled on him – unlike Leo’o Olo who had been drug addicted. Dr Donnelly also acted for Buntin.
Bellamy also recommended the government reconsider the deportation of an Iranian man convicted of drug offences and assault because he was remorseful and had made changes to his life.
Six months later he was issued with a protection visa prior to a scheduled appearance in the Federal Court.
In another case, FCZT and the Minister, Senior Member Bellamy ticked all the boxes in the ministerial directions and exercised her discretion to set aside the visa cancellation in the case of a man from Sierra Leone who failed the character test.
Allens acted for the migration applicant before the High Court in the NZYQ case – a decision which ever since has seen the government floundering and the opposition incandescent.
Happily, the firm and the barristers it instructed were not bashed-up for arguing that a stateless Rohingya Muslim, convicted of a sex offence against a child, should not be locked up indefinitely.
Rebecca Bellamy has been a career public service lawyer in Queensland, with jobs at the Parole Board and the Fair Work Ombudsman. She was a principal legal officer at the Commonwealth DPP for 11 years.
The Rev. Christian Porter appointed her a part-time member of the AAT from April 2019 to May 2022.
On April 4, 2022, Attorney General Madam Cash announced that Bellamy would be elevated to Senior Member with an appointment to run until May 8, 2027. She joined 19 new and 26 extended or promoted appointees in a Coalition stacking exercise six days before Brother Scott called the election.