A Barrister's Blog

Character cancellation of permanent residence visas is a topic that I have blogged about before. Attempting to get character cancellation decisions revoked in the ART is one of my areas of practice. Usually the odds are stacked against success. In my matter this week the Minister’s lawyers actually conceded the factors were “finely balanced” (fingers crossed).

The ART proceedings are generally conducted politely and professionally and without some of the heat which is often present in commercial litigation. I was very surprised to find a matter where the member unleashed against the lawyers. This is how the decision in Leo’o Olo and Minister for Immigration [2024] AATA 2774 started:

1. A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia. [So far, so good – difficult to cavil with that]
2. However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.  [There is no reasonable prospects of success requirement and no costs orders in this jurisdiction]
3. Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand. [Manipulating the Tribunal is a big call]

I half expected there to be a judicial review bias case subsequently. If there is one there is no decision published yet. I am also thinking about representation generally and representation without fear or favour to the best of your ability?  Although I am poking fun at this decision, I hope the underlying conduct of the lawyers didn’t deserve this criticism. Of course I have one last barb….reasonable minds may differ on NZ.

Creative commons acknowledgment for the photograph.