In an exclusive Q&A session with Legalwise Seminars, Chris Honnery, Barrister at Frederick Jordan Chambers, addresses key questions regarding decisionmakers’ obligations in the migration law context. Hear more from Chris at theVisas Under the New Regime and Judicial Review conference taking place Friday, 8th September, where he will discuss emerging and enduring issues relating to judicial review of migration decisions. Click here to view the full program and register your attendance.
Can you tell us a bit about your background and journey into the legal profession, from being a solicitor to becoming a barrister?
It has certainly been a journey, both literally and figuratively! My work as a solicitor spanned stints in London, Nauru, and Melbourne, over the course of a decade. I returned to London in 2020 to do the UK Bar Transfer Test but my plan to be a barrister in London was foiled by the pandemic. Following a mad scramble to snag a very expensive flight home, I was back in Australia. After a stint at the Federal Court, I sat the Bar exam in NSW. I’ve been at Frederick Jordan Chambers for the past year, primarily focusing on administrative law cases, and in particular migration matters, which was my focus as a solicitor.
You’ve been involved in several significant cases recently, such as ECE21 and DVS18. Could you briefly describe the key takeaways from these cases and how they contribute to the understanding of judicial review in immigration law?
ECE21 was a Full Court appeal from earlier this year. It addresses the tension between the Full Court’s decision in Minister for Home Affairs v Omar [2019] FCAFC 188 and the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 in relation to the nature of decisionmakers’ duties to consider representations and submissions. I will be talking about this issue in my session.
DVS18 was a recent Federal Circuit Court judicial review case that I ran for Human Rights for All (an organization that tirelessly upholds the rights of refugees and asylum seekers, please look them up if you’re unfamiliar with their work). It joins an emerging line of cases in which courts have found decisionmakers’ adverse credibility findings were based upon unwarranted assumptions and illogical reasoning. There’s an antiquated perception that credibility is not the domain of a court on judicial review, so it was nice to contribute to the jurisprudence explaining the circumstances in which a court will intervene and find a decision is affected by jurisdictional error based upon flawed reasoning.
The case GHSS involving Refugee Legal emphasised the importance of detailed psychological reports. How do these reports play a role in supporting immigration and asylum cases, and can you share some insights into their impact?
GHSS was an AAT matter involving a South Sudanese refugee who had been in immigration detention for around a decade. There was a huge amount of work done by the tireless folk at Victoria Legal Aid and Refugee Legal, as well as counsel Min Guo, before I became involved in the case. Refugee Legal obtained a psychologist’s report addressing the applicant’s low risk of recidivism. Due to the nature of the Direction that the Tribunal is required to follow when deciding whether to revoke a visa cancellation, obtaining a psychologist’s report is crucial if the former visa holder is to have a reasonable chance of succeeding on the review and getting their visa back. Without it there would have been no way for the applicant to demonstrate his rehabilitation, so detailed psychologists’ reports are important – in fact I would say essential – in visa cancellation cases for that reason.
Your webinar will analyse decisionmakers’ duties to consider following the case of Plaintiff M1/2021 v Minister for Home Affairs. Can you elaborate on these obligations, especially in light of recent legal developments like the case Plaintiff M1/2021 v Minister for Home Affairs?
The High Court in Plaintiff M1 addressed decisionmakers’ obligations to consider representations made by a former visa holder as to why there is another reason they should get their visa back. The majority of the High Court held that while decisionmakers must identify and evaluate the representations, it is likely to lead to error if courts enquire into the quality of consideration in a decision maker’s reasoning. My session will address the broader ramifications of Plaintiff M1 and how the case has been applied across the migration law sphere, and in other areas of administrative law.
What can participants expect to gain from your upcoming session at the immigration law program?
I hope participants can enhance their understanding of what a decisionmaker’s ‘duty to consider’ actually entails, as it is one of the most common, but also one of the most nebulous, grounds of judicial review. I’ll review recent cases following Plaintiff M1 to give participants an understanding of what to look out for in a migration decision where they suspect an issue might not have been properly considered, and discuss how courts are likely to approach a ‘failure to consider’ ground of judicial review post Plaintiff M1 so participants get a sense for how the issue is being treated judicially too.
Chris has broad experience in public/administrative law, judicial review, regulatory law, migration law, refugee law and human rights matters across state and international jurisdictions. He regularly appears in the Federal Court and Federal Circuit Court in judicial review applications and appeals relating to migration decisions. Prior to being called to the Bar, Chris was a solicitor at Victoria Legal Aid for several years. He also oversaw Craddock Murray Neumann’s judicial review practice representing asylum seekers on Nauru, where he is admitted as a solicitor and barrister. Additionally, his background comprises in-house stints at the Federal Court of Australia, Settlement Services International and in the litigation department of the Australian Broadcasting Corporation. Chris also passed the England and Wales Bar Transfer Test following stints in the London head office of international media law NGO Article 19 and at Hickman and Rose solicitors Connect with Chris via LinkedIn or his website.
