Nye neighs loudly at Circus Court judgment that did not get to grips with the evidence …  Twigs assembled for a “forensic bird’s nest” … Blots on the judicial escutcheon … AAT’s incompetence … Eight years later application remains unresolved … Justice Charlesworth finds more jurisdictional error in the case of an Iranian conscientious objector  

Justice Nye Perram in Singh v Minister for Immigration and the AAT and Justice Natalie Charlesworth in EOC20 v Judges of the Federal Circuit Court, both found in each case there had been jurisdictional error and sent the cases back to start again. 

In the Singh case it went back to a differently constituted tribunal and in EOC20 Charlesworth sent it to a fresh FCCA judge for another crack. 

Justice Perram was scathing about Judge Street’s finding that no jurisdictional error had been made by the AAT in finding Singh and his wife Sophia Swart were not in a married relationship within the meaning of s.5F(2) of the Migration Act.

Swart is an Australian citizen so these findings meant that Singh, a citizen of India, was not entitled to a visa. 

Apart from a valid marriage, the Act also required a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship must be genuine and continuing and that they must live together or at least not live separately and apart on a permanent basis. 

There was evidence from four witnesses that Singh and Swart were married and met the criteria demanded by s.5F(2). 

However, Street said there “is no basis to find that the tribunal did not take into account the evidence of the witnesses” and in any event it is not bound to accept the witnesses opinions. 

“The court does not accept that there was any material or significant evidence that required further express consideration by the tribunal …”

Perram said “this is entirely erroneous” – but by now he had a head of steam, saying of Street’s judgment: 

“It reflects a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest. Judgments like this are a blot on the judicial department of government. The appeal must be allowed with costs.” 

This puts the “wagyu beef and shiraz” flourish in the shade. It is not the first time that Perram has fired a broadside at Street – he was part of a full court decision in another “no real engagement” case. 

One of Justinian’s field agents observed ruefully:

“As Bernard would say, ‘Yes, but Minister birds don’t form blots. They don’t produce ink. For that you need a cuttlefish’.” 

Perram added, “for completeness”, the next time the AAT gets around to hearing this will be the fourth occasion “it will have attempted to determine the appellant’s review application according to law”. 

The first decision on July 2, 2015 was set aside by consent when the parties agreed in the Federal Circuit Court that the AAT had failed to consider mandatory matters, involving the same issues the subject of the most recent appeal, i.e. the social aspects of the relationship.  

The second tribunal decision on November 2, 2016, was set aside after it was found that the second tribunal had “extensively plagiarised” the first tribunal’s reasons. 

Now the third tribunal decision made on November 22, 2019 has been set aside because it failed to consider evidence favourable to the appellant. 

The initial application for review of the delegate’s decision was filed with the AAT on December 12, 2013 and it has been trying to get to grips with it for nearly eight years. Justice Perram observed: 

“It is to be hoped that the appellant, who is still a relatively young man, lives a long enough life to see the tribunal deal with his review application according to law. 

“It is by no means too much to expect that the tribunal takes into account the matters which by law it is required to take into account, that it does not unwisely plagiarise earlier decisions which have been set aside and that it remembers to consider not only the evidence which is unfavourable to the appellant but also that which is in his favour. 

Public confidence in the tribunal resides in its reputation for competence. The conduct of the present review application is apt to undermine that confidence.”

Confidence has long been shot since attorneys general Brandis and Porter started to stack the AAT with under-qualified appointments and failed party hacks. 

Nishan Singh v Minister for Immigration and Administrative Appeals Tribunal – Judge Street 

Nishan Singh v Minister for Immigration and Administrative Appeals Tribunal – Justice Perram 

Again, she found that active intellectual engagement was missing from Judge Street’s reasons in EOC20 v Minister for Immigration. 

The Immigration Assessment Authority refused an extension of time for judicial review after a ministerial delegate denied the applicant a grant of a safe haven enterprise visa. 

Justice Charlesworth found that Street “committed an error that is properly characterised as jurisdictional or otherwise committed an error warranting the remedies sought in this court”. 

The applicant is Iranian, of Azeri ethnicity. He deserted from the military where he was expected to fire on and kill people demonstrating against the reelection of Mahmoud Ahmadinejad, who had been accused to using fraudulent tactics to secure victory. 

His claim was that he objected to military service on political, religious or moral grounds – which, if established, would have put him within the definition of a refugee. 

The authority thought that the applicant didn’t have any “political motivations” for deserting his compulsory military service and that he would not be subject to persecution in Iran on the basis of race, religion, nationality or political opinion. 

HH Sandy Street dismissed the application for judicial review because it “is clearly an invitation to the court to engage in a merits review”. 

However, there was a requirement for him to analyse whether the facts that had been established brought the applicant within the protections of the Refugee Convention, particularly as the Iranian was clearly a conscientious objector. 

Justice Charlesworth found that Street had failed to grapple with the legal consequences of desertion arising from orders to kill; had not considered the nexus between feared persecution and political opinions; and did not engage with arguments as to why the authority’s findings and reasoning were erroneous.  

Judge Street’s errors were jurisdictional. The judge also delivered his reasons ex tempore with Justice Charlesworth observing: 

“If the minimal requirements for adequate reasons in the particular case cannot be met by delivering reasons orally, then judgment should be reserved to ensure that adequate reasons can be prepared.” 

Ouch.  

EOC 20 v Minister for Immigration and Immigration Assessment Authority – Judge Street 

EOC 20 v Minister for Immigration and Immigration Assessment Authority – Justice Charlesworth