Getting documents out of the AAT

There are many cases in the AAT where the AAT gives documents or evidence to an applicant at the hearing without prior notice or more importantly changes tack at the hearing as to what the issue before the tribunal is all about (again without notice).

Tribunal matters are still taking a long time to get to hearing, in may cases up to 2 years. There is always a lingering possibility that the AAT has sent an email to the applicant’s representative and it may have been missed.

There is some utility is making a telephone call to the AAT registry, every few months inquiring if a member has been allocated, this make pick up a missed email. Once a member is allocated, an application must then be made to the AAT under s362A of the Migration Act which states:

“Section 362A    Applicant entitled to have access to written material before Tribunal

(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.”

While, no doubt, most of you are aware of this, what is not often done is to make a second application under s362A a couple of days before the hearing date, asking for any further material collected by the AAT since the last disclosure was done.  This usually picks up if any ‘dob-in’ certificates under ss 375A and 376 have been issued.  If these ‘dob-in’ certificates are picked up then under the Full Federal Court decision of Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, particulars can be supplied to an applicant. The Court said:

“55…Carefully drafted particulars may have the effect of providing a fair hearing without disclosing the confidential information.”  

Particulars should always be requested so that material can be marshalled to prove the content of the certificates wrong. It is possible to challenge these certificates and I did so successfully in the Federal Circuit in Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687 see  https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2021/687.html

These certificates are based on a public interest immunity claim and one should always object to this claim, noting that the AAT can reject the legal correctness of these certificates.

Depending on how the AAT hearing goes, one can put a request to member asking for an assurance if any further information is obtained by the AAT AFTER hearing, then the tribunal should send a copy of that material to the applicant. One cannot always rely on this happening without request and if it appears that an inordinately long time has passed then it would useful to make a third s362A request which hopefully will pick up if the AAT has done investigations of its own. Some members are more prone to do this than others.

Regarding the whole issue of on-line or telephone hearings, there are occasions when a client is particularly disadvantaged by the absence of a face-to-face hearing, especially if the applicant’s credit is at stake. I have successfully specifically asked for on-line hearings to be adjourned until it is possible to return to face-to-face hearings. 

Here, the views of Kiefel CJ of the High Court are useful where Her Honour stated:

“So far as concerns the High Court, I can say that it has confirmed it is our view that oral argument made in the presence of the Court is far superior.” [address to Qld Symposium, 19 March 2021, the full text of her speech can be found at the High Court’s website under the Chief Justice’s profile].

Also there is s2A of the Administrative Appeals Tribunal Act which sets out the Tribunal’s objective:

Section 2A. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a) is accessible; and

(b) is fair, just, economical, informal and quick; and

(c) is proportionate to the importance and complexity of the matter; and

(d) promotes public trust and confidence in the decisionmaking of the Tribunal.

The most important objective is  (d) whereas, too often the AAT in migration matters emphasises (b). ‘Public trust and confidence’ is sometimes most enhanced by a face-to-face hearing.

Finally in these telephone or on-line hearings, always have a plan B for communication, buy a second cheap mobile phone and a cheap SIM card and have this as a backup in case the main form of communication breaks down as I have often seen. I have seen cases where the AAT simply does not try multiple times to contact the representative and the tribunal then proceeds to run the case with the applicant unrepresented. Inexplicably in some of these cases the applicant was not armed in advance,  to object to a continued hearing without the representative! The applicant should always insist on having the representative participate in the hearing, a fortiori in on-line or telephone hearings.

In my opening sentence in this blog I referred to the AAT ‘changing tack at the hearing’, in my workshop/webinars I detail strategies on making sure the AAT does not disadvantage an applicant by bringing on a new argument suddenly, without notice. At my workshop/webinars we also discuss how to best use s362A and what exactly to put in s362A notice to the AAT as well as a close look at challenging a public interest immunity claim at the AAT level.