Okay to Exhaust All Remedies


Losing review applicants who take on every point are not necessarily of bad character even if sometimes presenting wrong claims. DP Wright observed in Fox v MIMIA [2004] AATA 195 (27.2.04):

  1. The review applicant freely conceded that to assist the visa applicant to stay with him in Australia he had sought to use all means lawfully available to him. I think therefore that some observations should be made about this. There is I think a distinction to be made between (a) an applicant who seeks to exhaust all avenues lawfully open to him or her with a view to ultimately securing a beneficial decision even if the prospects, objectively assessed, may be poor or even hopeless, and (b) an applicant who has concocted a false case for protection and, having failed at primary level, then seeks to gain more time residing in Australia by implementing further appeals knowing they can only succeed if the false case is accepted. In the former case I think there should be no adverse character implications. In the latter, there are obvious issues suggesting absence of good character.

Significantly in Fox, the applicant had made a bogus refugee claim.  But (the AAT continued):

  1. In considering which category the present visa applicant falls into it is significant to me that upon appearing before the RRT the visa applicant immediately conceded the untruthfulness of the main grounds in her application for protection – hardly the course one would expect from a person complicit in the bogus allegations. I am not persuaded that the visa applicant acted improperly in this matter. I realise that normally a person is responsible for what is contained in a document bearing his or her signature but here I am concerned with character rather than gullibility and, having heard the visa applicant’s explanation I am prepared to accept it.