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The Advanced Evidence and Advocacy Practicum organised by Legalwise which I attended on 2 March, did, I was pleased to discover, turn out to have content that I could re-shape from the litigation context and consider within our migration context.

Many elements addressed by the speakers (I heard: Sydney Jacobs, 13 Wentworth Selbourne; John-Paul Redmond, 53 Martin Place; Zoe Hillman, 8 Selbourne) replicate elements we use when submitting applications, responding to RFIs and on appeal. We use these elements to create persuasive and supported arguments to achieve the positive outcome our client desires.

The art of persuasion can only exist, however, when we can first persuade ourselves. If you believe in the justice of your client’s situation and believe that your client’s application falls within the rules, then you are more likely to be able to persuade the decision-maker to your point of view.

Once convinced yourself, you then need to build a strong case theory. ‘What is case theory?’ I hear you ask. It is the logical, persuasive story of what happened. Laying strong foundations from the beginning using your case theory, provides a structure within which you can develop your arguments and prepare your evidence, respond to an RFI, or later lodge an appeal.

When developing your case theory ask yourself these questions:
– What is the legislative criterion?
– What is in dispute?
– What is the evidence?
– How does the evidence match the criterion?

From there you can structure your argument:
– Identify the issue in contention
– Take a position (there could be one or more options here)
– Put forward your position supported by relevant evidence
– Identify the opposing view (eg Departmental policy, or contentions raised in an RFI)
– Propose an argument to counter that opposing view.

Clearly, then, your argument must be based upon evidence. Let’s review some key rules about evidence:
– Evidence should be relevant to the issues in contention
– Evidence should be accurate
– Documentary evidence should speak for itself ( your role is to explain how it fits your case theory)
– Witness statements should be relevant, non-argumentative, accurate and based on what they have witnessed with their sense

When using experts to support your client’s case (for example to show psychological distress, relating to medical issues, addressing financial matters), consider the following:

– Qualify your expert. What is their precise discipline and is it relevant to your client’s defined issue? What training or study have
they in this area? How much experience does he or she have of similar situations?
– Does your client’s case rest solely on this one expert’s evidence? It shouldn’t. Rather, the expert’s evidence should be supported
by other pieces of evidence.
– Is the expert’s opinion relevant to the issue?
– Is the expert’s report persuasive, logical and understandable? Consider it from an outsider’s point of view – use the ‘would my
grandmother understand this’ test!

Recommend your expert provides his / her report with a clear structure such as:

Outline of the question being addressed in the report
Assumptions on which the report is based

Slotting your evidence into your case theory, you will lead the decision maker step by step to the inevitable conclusion you wish them to draw. Using a structured approach is a practical tool to help you move from the quagmire of a position under attack to an unassailable argument in your client’s favour.