On the federal front line … Liberal Party AAT appointment overlooks the fundamentals in a migration review case … Slap from upstairs … Street J and the line between efficiency and fairness … Trying to achieve both in a busy court … And – VCAT helps a barrister reveal herself … Theodora reports 

Federal Court judge Geoffrey Kennett has sliced and diced a migration decision emerging from AAT member Angela Julian-Armitage – one of the Christian Porter’s Liberal Party aligned appointments made on Christmas eve 2020. 

Ms Julian-Armitage is a former Liberal candidate for the Queensland state seat of Bulimba and an admirer of the Coalition’s policy of more rigorous English language requirements for new Australian citizens. 

In WQKK v Minister for Immigration, Etc, it was found that the AAT member had failed to consider relevant evidence about the rehabilitation achieved by a stateless  Kurd who had his visa cancelled because of the “character test”. 

In fact, Julian-Armitage dismissed the issue of rehabilitation in one paragraph, saying the applicant should have been “more proactive” in redeeming his offences for unlicensed driving and improperly obtaining prescription painkillers. 

It appears she overlooked various courses undertaken by WQKK as well as reports from his councillor, detailing his attendance and his progress in dealing with mental health issues. Kennett J said: 

“I am comfortably satisfied that the tribunal did not have regard to this matter in the course of considering what steps the applicant had taken towards rehabilitation.” 

She handed down her decision on November 21, 2022, affirming the decision to cancel the applicant’s visa. The actual reasons arrived more than two months later, on January 31, 2023. 

WQKK’s solicitor repeatedly asked the AAT by email when the reasons would arrive – on November 22, December 6 and December 15. 

No information about the delivery date was provided in response.

It meant an extension of time was required for the applicant to review her reasons. 

Back it goes for another whirl at the AAT. 

This is yet another case that weakens the wild proposition from former shadow attorney general Julian Leeser who claimed in March that the tribunal was out performing its benchmarks and that Mark Dreyfus’ decision to abolish it was a combination of a McCarthyist purge, the actions of Lavrenty Beria, the excesses of former Chinese president Hu Jintao, and something straight out of George Orwell’s Nineteen Eighty-Four. 

At the middle of last year the AAT had 67,720 cases needing to be finalised. 

WQKK v Minister for Immigration … 

In distress more than anger I have to report that Judge Sandy Street has been overturned in a migration case. 

Justice Michael Feutrill of the FCA thought that Sandy has failed to accord procedural fairness to a self-represented Nepalese husband and wife, who had applied for a protection visa – only to be knocked back by the minister’s delegate, the AAT, and then the Circuit Court. 

Theirs was a Hindu-Buddist marriage, which is not accepted by the Magar and Chhetrius ethnic groups in Nepal. Also, the husband had been kidnapped and tortured in his homeland by a group claimed to be a terrorist outfit.

Street explained to the applicants that he could only decide whether the AAT decision was affected by appealable error. However, Justice Feutrill thought there had been a failure to spell out the jurisdiction or process of the court and the applicants hadn’t been given a proper opportunity to explain why they thought the tribunal was in error.

Feutrill recognised that in a busy court it is “understandable that judicial officers adopt case management procedures designed to achieve efficient and timely disposition of large numbers of similar matters”.

However, there needs to be a balance between efficiency and fairness. 

“In my view, the primary judge failed to strike the correct balance and that resulted in an unfair hearing.” 

A Circus Court registrar had made orders that the applicants could file amended affidavit evidence and submissions, but nothing was filed. 

The Federal Court thought this was due to a failure to explain the order and what it meant. 

It appears the applicants did not understand Street’s explanations about the nature of judicial review and the use of legal lingo, therefore they didn’t understand that they were required to particularise their grounds for review. 

Street failed to provide assistance for the applicants to know what they were supposed to be doing.

Back it goes to another Circus judge to have a further crack at it. 

It’s not often that counsel seeks to appear without their identity being revealed – but it happened at VCAT in a claim for damages against a building surveyor involved in construction works at Melbourne’s Block Arcade.

The applicants run a tea room in the arcade and the barrister for the building surveyor, Du Chateau Chun Pty Ltd, sought permission to appear anonymously. 

Deputy President Ian Lulham said the application was made because counsel claimed the applicants, Kon and Kelly Koutoumanos, had been harassing the respondent client and its lawyers.

The Koutoumanoses denied any harassment but admitted sending “voluminous emails” to the other side’s lawyers and for publishing “commentary” on their website.

They made undertakings, which Lulham recorded in his reasons – 

The barrister who has been afforded these protective undertakings is Amanda Storey. 

Koutoumanos & Koutoumanos v Du Chateau Chun Pty Ltd