A careless “copy and paste” decision last year by an Administrative Review Tribunal member has led to a review win in the Federal Court.
In October last year, the tribunal affirmed a decision to revoke the visa of a New Zealand woman on character grounds, under Section 501 of the Migration Act 1958 (Cth).
In Sydney on Tuesday, Federal Court Justice Wendy Abraham granted the woman an extension of time to apply for review of that decision, saying “the tribunal reasons reflected at the very least a significant degree of carelessness, and inattention to detail and the task at hand”.
The woman had argued several grounds for the extension, including the decision being affected by apprehended bias and/or constructive failure to exercise jurisdiction, based on the fact that aspects of the decision were identical, or nearly identical, to a decision made by the same tribunal member two months earlier.
This included a paragraph which stated that “on 5 September 2024 the applicant was found guilty by the Local Court of New South Wales at Gosford of five counts of sexually touching another person without consent and sentenced to an aggregate term of 15 months imprisonment (‘the index offence’)”.
The woman’s index offence, however, involved two counts of aggravated robbery, to which she pleaded guilty in 2001, and was sentenced to a suspended term of two years’ imprisonment.
Under the heading ‘The strength, nature and duration of ties to Australia’, the tribunal stated that “the applicant’s immediate family are his father, stepfather, two brothers, two stepbrothers and a stepsister”.
The woman’s immediate family, however, comprised her mother, brother, sister-in law, adult son, and adult daughter and two minor sons.
The certification page at the end of the reasons recorded incorrect hearing dates and that legal representatives had appeared for the applicant and respondent.
The woman had been unrepresented, and the dates and appearance details corresponded to the member’s earlier decision.
Other factors the woman identified in the decision included the use of male pronouns in several other paragraphs, and the member’s use of identical language when describing the weight to be given to various considerations that were present in both cases.
As to apprehended bias, Justice Abraham said the woman submitted that the attribution of a sexual touching conviction might have led the tribunal to make a decision other than on the merits of her case.
“This is because: sexual touching is an offence of an inherently prejudicial nature, and the sexual touching offence in (the previous case) was committed against a minor; the stated offence occurred recently in 2024, whereas the applicant’s index offence occurred in 2001; the tribunal stated the applicant had been found guilty, whereas she pleaded guilty to her index offence; the offence was for five counts, whereas her index offence involved two counts; and the tribunal stated she had been sentenced for a term of imprisonment, whereas in 2001 she was given a suspended sentence,” she said.
“Similarly, the applicant submitted the error in identifying her family members might lead a fair-minded observer to conclude the member might have attributed weight to the consideration of ties to the community, based on links to wrongly identified family members.
“Alternatively, the applicant submitted the tribunal constructively failed to exercise jurisdiction and/or failed to discharge its statutory review task.”
Justice Abraham said the woman did not contend that copying from a previous decision necessarily gave rise to jurisdictional error, but rather that in this case, the member copied sections related to both the circumstances of an individual applicant and evaluative passages.
She said the woman submitted that the extent, nature, context and degree of the copying meant “that this court, on an overall impression, would be satisfied the member did not bring an independent mind to the consideration of her case”.
The Minister for Immigration and Citizenship accepted that the tribunal’s reasons contained paragraphs and passages that pertained to a different review applicant.
“However, the Minister submitted these were typographical errors that did not materially affect the tribunal’s decision,” Justice Abraham said.
“For example, the errors were said to be so obvious that the fair-minded lay observer would attribute them to drafting and editing carelessness, rather than matters that were legitimately taken into account in the decision-making process.
“The Minister submitted that, even taken together, the mistaken references to another review applicant would not lead the lay observer to question the tribunal’s partiality.”
The Minister accepted errors were made in the preparation of the reasons, she said.
“However, he submitted they are not errors that demonstrate the tribunal did not attend to the review as required under the Administrative Review Tribunal Act 2024 (Cth) and Migration Act,” she said.
Justice Abraham said the errors in the reasons were likely to have arisen by using the previous case as a template and removing paragraphs from it (and adding others that related to the woman and her circumstances).
“It may readily be accepted that jurisdictional error is not necessarily established simply because a member of the tribunal copied aspects of previous reasons they had drafted,” she said.
“What impact, if any, arises from the use of aspects copied from a previous decision, necessarily depends on the on the facts and reasons of the case.”
She said in this matter, the member’s copying was “not confined to a recitation of legal principles, or to matters of general application”, and that the member was required to apply the woman’s specific circumstances to the assessment.
She said the lack of explanation as to why the woman did not pass the character test, “does not assist, but rather highlights, at the very least, the significant lack of attention by the tribunal to the task at hand”.
The tribunal’s finding of the “very serious nature of the applicant’s offences” showed that “either the member inaccurately described a critical finding, or the finding that the applicant’s ‘offences’ are serious in nature is unreasonable and lacking intelligible justification”, she said.
“However, at their foundation, both permutations of the error reflect a lack of attention to the task at hand,” she said.
Justice Abraham said the tribunal was under a duty to provide reasons for its findings.
“That duty is not fulfilled if the member’s reasons do not reflect independent judgment was exercised in assessing the applicant’s particular circumstances,” she said.
“In the circumstances, I accept the applicant’s submission that on an overall impression of the reasons I cannot be satisfied that the tribunal brought an independent mind to the consideration of the applicant’s case.
“I consider the appropriate characterisation of the error in this case is a failure to discharge the tribunal’s statutory task.”
Given the woman had established jurisdictional error, it was unnecessary to consider the submission in relation to apprehended bias, she said.
Read the case here.
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