The Psychology of Advocacy
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 29 April 2024
I often say that the psychology of a case is just as important as the law. So often in migration matters, migration advisers get the client to meet the absolute minimum requirements for the grant of a visa but do not encourage clients to then move on to make the client a more attractive candidate for the grant of a visa. At the end of this blog are my 3 points about whether to use a particular strand of argument.
Equally protection against visa cancellation starts on the day the person is a granted a visa.
Often a client may technically meet the requirements of a visa, but the client is otherwise unattractive to the point where a decision maker may be looking for ways to make an adverse decision, consciously or subconsciously.
The converse is true, a client whose visa application is overwhelmingly appealing will get the benefit of any doubt.
A good example is the English language requirements, a client should not aim just to get the bare minimum but to get the next level above bare minimum. If the bare minimum is an IELTS score of 6 (or the equivalent) then the client should aim for a score of 7. Some clients when told this is a good idea would sometime say ‘what for?’.
It is particularly important in business visa matters for a client to well exceed the requirements. The reason why the business visa regime is under threat is that many applicants are at the lower end with business plans often focused on a restaurant, café or retail shop, one of which would inherently attract sympathy from a delegate.
Often persons do not do rudimentary things like join the relevant professional or business organisation. One client, although an accountant was not a member of any of the accounting professional organisation, like the CPA.
Businesses rarely join the relevant chamber of commerce. Often the businesses are not going flat out, I once suggested that a business open on a Saturday as well to boost sales and profit but the client was aghast.
No matter what the visa is, the client needs to achieve whatever accolades which may be in the client’s grasp.
Clients also need a history of doing good things, like joining local groups, doing some charitable work or even things like participating in a local Surfer Lifesaving Nippers program or simply giving blood. Often at the visa cancellation stage, when one looks on the client’s history, the client has done very little to contribute to society, (it is too late once the visa cancellation process has started).
Even witnesses need to build themselves up. If a person is an Australian born Australian citizen that should be stated in the statutory declaration. If the witness has a professional qualification that should be stated even if irrelevant to the issue at hand. I once relied on a witness who was a manager in a metal fabrication business who employed about 40 people. The manager said running a blue-collar business like that meant that he to make daily judgments about people and their character and balance the whole workforce, hence he said he developed his skills an affective people manager and had to make good judgment calls about people’s character. All this was stated in the statutory declaration so that when the witness gave a character reference it came from a level of experience and practical skill.
Here are my 3 points about planning one’s argument.
First, whether the argument intended to be made (or any question relevant to it) is really open on the facts, law and circumstances in the case;
Second, does the argument stand any real prospect of being successful; and
Third, is there any danger that the argument (or any question to be asked relevant to it) is likely to cause collateral damage to the client’s case; that is, are there aspects of the argument or aspects of the questions to be asked associated with it, which have a negative rather than a positive impact on the case overall.
Unless the argument meets all three of those ‘tests’ don’t use the argument.
All the above, of course apply to visa applications as well as AAT hearings, every visa application is an exercise in persuasion.