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AAT member criticised for ‘significant’ cut and paste in immigration matter
A tribunal member was caught out for the “significant” copying and pasting in a decision to toss an international student’s visa.
Naomi Neilson
Member of the then-Administrative Appeals Tribunal (AAT), Vanessa Plain, was recently criticised by the Federal Circuit and Family Court of Australia (FCFCOA) for her “important or noteworthy” cut-and-paste job in a March 2020 immigration judgment.
Judge Val Gostencnik said the extent of Plain’s reproduction from submissions by the minister’s delegate left no doubt the AAT “failed to bring its own independent mind to the review”.
“Consequently, I consider the tribunal failed to discharge the statutory task imposed on it to consider the matter on review for itself afresh, so as to make a decision it considered the correct and preferable one,” Judge Gostencnik said in his written reasons.
Maazuddin was three days late to file a judicial review application, but Justice Gostencnik said a mistaken belief about the 35-day deadline and the short delay was an acceptable explanation.
Having been granted the extension, Maazuddin submitted that significant portions and passages of Plain’s decision were copied from the delegate without attribution or acknowledgement.
In one example, the delegate wrote: “I consider that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), fundamental to his visa grant. Therefore, I find the extent of his non-compliance with visa conditions to be significant.”
In Plain’s judgment, this same finding was set out almost word-for-word: “The tribunal considers that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), is fundamental to the visa grant. Therefore, the tribunal finds the extent of his non-compliance with the visa conditions to be significant.”
Referring to the decision in MZZZW, Judge Gostencnik said there was “no material difference” between word-for-word copying, moving words around in a different order, changing syntax, or adding a word when assessing whether a tribunal member, like Plain, brought an independent mind to bear on the preferable decision.
Further, Judge Gostencnik said the copied material included consideration of the same matters, common findings and language in expressing them, common or similar attribution of weight to the matters, and common and “apparently erroneous” considerations.
On the latter, the delegate – and the tribunal “in almost identical terms” – found if Maazuddin’s visa was cancelled, he would become an unlawful non-citizen and may be liable for detention under section 189 of the Migration Act 1958 and removal under section 198.
However, the effect of sections 14, 15, 82(1), 189 and 196 of the act is that on cancellation of the visa, Maazuddin would be liable for detention, Judge Gostencnik clarified in his reasons.
In response to Maazuddin’s appeal, the minister said that when the decision had been read as a whole, the extent of Plain’s copying and pasting was not “significant”, but Judge Gostencnik rejected this.
“If the assessment amounted to a mere comparative word count, that might be true, but as the earlier analysis shows, that which was copied was important findings, reasoning and whether the weight ascribed favoured was against cancellation,” he said.
“All this without attribution, acknowledgment or explanation.”
A writ of certiorari was issued to quash the March 2020 decision, and a writ of mandamus was issued to the Administrative Review Tribunal to determine the application fresh.
The minister was also ordered to pay costs in the sum of $8,371.30.
The case is Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349 (10 December 2024).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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