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Refugee Determination Procedures for Onshore Applicants - Facts and Implications

The only persons who may grant an applicant a protection visa are the case officer delegated with the Minister's authority, the Refugee Review Tribunal or the Minister. Judicial officers such as Federal and High Court judges do not have the authority to grant protection visas.

Arrival in Australia

  1. Immigration officials are not required to tell people that they have a right to claim refugee status. People without a visa are detained and generally kept separate from other detainees as part of a screening process.

    DIMIA Interview/Screening Process

  2. People arriving in Australia without a visa are interviewed by DIMIA officers without being provided with independent legal advice.

  3. Only people who tell a story that fits within the legal definition of a refugee will be allowed to apply for refugee status.

  4. These people are not told anything about the purpose of the interview or the determination process and may not appreciate the significance of what they say in their interview with DIMIA officers.

  5. There is a general obligation that a person who is responsible for another person's immigration detention must (at the request of that other person) give that person application forms for a visa or afford that person all reasonable facilities for obtaining legal advice or taking legal proceedings.

  6. There is, however, no obligation to afford persons in detention these facilities unless the person requests the facilities.

  7. Additional restrictions are imposed in certain circumstances, including on persons who are detained after being prevented from leaving a vessel under section 249 of the Migration Act or who entered Australia after 30 August 1994 and has not been immigration cleared since last entering Australia. For people in these circumstances, other than as provided in paragraph 5 above, nothing requires the Minister or officer to give the person an application form for a visa, advise the person whether they may apply for a visa, give a person an opportunity to apply for a visa or allow the person to access advice in connection with an application for a visa.

    Application Form

  8. The Migration Act 1958 and the Migration Regulations 1994 provide the sole legal authority for the grant of a visa to non-citizens.

  9. Section 499 of the Migration Act permits the Minister to formulate written directions in respect of the performance or exercise of its functions under the Act. The directions must not be inconsistent with the Migration Act or the Migration Regulations and a person to whom they are directed must comply with them. DIMIA also produces a Procedures Advice Manual (several volumes) and Migration Services Instructions.

  10. Only persons who satisfy the minimum criteria set out in the Migration Act 1958 and the Migration Regulations 1994 (Cth) may apply for a visa. The minimum criteria for a temporary protection visa (subclass 785) is as follows:

  11. The applicant claims to be a person to whom Australia has protection obligations under the Refugee Convention; and

  12. Makes specific claims under the Refugee Convention or is a member of the same family unit as a person who has made such a claim and that family member is an applicant for a protection (class XA) visa.

  • Decisions to grant a visa can only be made if the Minister is satisfied that the prescribed criteria have been met and factors preventing the grant do not exist. Therefore, the decision makers have no discretion to grant a visa if the prescribed criteria are not met.

  • Applicants that apply in Australia must apply for protection visas by completing a standard DIMIA application form.

  • The application for a temporary protection visa must be made within 28 days from the date the applicant arrives in Australia.

  • The form must be completed in English and must demonstrate that the individual meets the international definition of a refugee in the Refugee Convention facilities.

  • Once a person is admitted into this application process, that person is given access to government funded legal assistance.

    Initial Assessment

  • A case officer from DIMIA, who has the delegated authority of the Minister, assesses the written application and decides whether the applicant meets the definition of a refugee under the Refugee Convention.

  • If the case officer requires further information/clarification, the officer may interview the applicant and seek further information about the situation in the applicant's home country from sources such as the Department of Foreign Affairs, other governments and human rights groups.

  • As a result of recent cost cuttings, applicants may no longer be interviewed. This means that their application will be determined on the basis of their written application alone.

  • Questions have been raised about the quality of information obtained by case officers about an applicant's home country and the fact that more weight may be given to this information than the applicant's story.

  • Applicants have the right to respond to any adverse information that affects their case.

  • Migration agents can make written submissions on behalf of the applicant.

  • If the applicant meets the definition of a refugee and meets the public interest requirements and other requirements applicable to the particular visa application, the case officer will grant the applicant a protection visa. Otherwise, the applicant will be refused protection.

  • The public interest requirements are:

  • The applicant is of 'good character';

  • The applicant is not a direct or indirect risk to Australian national security;

  • The applicant is not a person who would prejudice the relationship between Australia and a foreign country; and

  • The Minister is satisfied that the grant of the visa is in the public interest.

  • Case officers are now allowed to require asylum seekers to swear or affirm a fact is true. Failure to comply can be used at any stage of the process to make an adverse finding about the credibility of the applicant.

  • Section 91V of the Migration Act allows a case officer to draw adverse inferences if the officer "has reason to believe" that the claimant is "not sincere" in making a statement.

  • Section 91W of the Migration Act allows a case officer to draw adverse inferences about the credibility of applicants who refuse or who are unable to produce documentary evidence of their identity, nationality or citizenship.

    Appealing an Adverse Decision

  • An applicant that is refused protection may challenge the factual basis of the case officer's decision. This appeal is generally to the Refugee Review Tribunal ("RRT") but, in special cases, is to the Administrative Appeals Tribunal ("AAT").

  • The RRT is inquisitorial in nature not adversarial.

  • The RRT is not a court of law and the members rely on the Minister for their reappointment. It has been suggested by the Law Council that for this reason decisions made by the RRT may be more open to Government pressure than decisions made by the courts.

  • Appeals to the RRT must be made within 28 days from the decision to reject the application.

  • Applicants also have limited rights to appeal to the Federal Court and the High Court.

  • The Minister may block an applicant from appealing an adverse decision if the Minister believes it is in national interest to do so.

    Refugee Review Tribunal

  • A single member of the RRT reviews the merits of the decision of the case officer. For the purposes of the review, the Tribunal may exercise all powers and discretion conferred by the Migration Act on the Minister or case officer that made the original decision. The RRT is not a court.

  • The RRT examines whether the applicant meets the definition of a refugee and is not required to assess the reasons given by the case officer.

  • The RRT makes findings on the basis of the facts and is required to interpret and apply Australian legislation and international law.

  • Initially the review is on the written documents. However, if the RRT is not able to make a favourable decision on the basis of the written documents, it must give the applicant an opportunity to be heard in person.

  • The applicant must appear in person and has no right to be represented by a lawyer at the hearing but lawyers may be present at the hearing as observers.

  • If the RRT believes that the case officer's decision was wrong based on the facts, it may overturn the case officer's decision and grant a protection visa to the applicant.

  • The RRT may also uphold the case officer's decision. In this case, the applicant must pay a fee of A$1,000 and leave Australia within 28 days.

  • The RRT, in carrying out its functions, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

  • The Tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence. However, it must act accordingly to substantial justice and the merits of the case.

  • The Principal Member of the Tribunal may, in writing, give directions not inconsistent with the Migration Act or the regulations as to the operation of the Tribunal or the conduct of reviews by the Tribunal. The Tribunal should comply with the directions as far as practicable.

  • The Tribunal must give the applicant particulars of the information that the Tribunal considers would be the reason or part of the reason for affirming the decision and ensure, as far as reasonably practicable, the applicant understands why the information is relevant to the review.

  • The hearing must be in private.

  • The Tribunal must prepare a written statement setting out the decision, the reasons for the decision, findings on material questions of fact and refer to evidence or other material on which the findings of fact were based.

    AAT Review

  • The AAT has jurisdiction to review certain decisions of the Department, including the refusal to grant a protection visa or to cancel a protection visa relying on Articles 1F, 32 or 33 of the Refugee Convention and the refusal to grant, or to cancel, a visa on the basis that the non-citizen does not satisfy the case officer that the person passes the character test.

    Review of Decisions by the Courts

  • In limited circumstances, an applicant whose application for protection is rejected may appeal to the Federal Court or High Court.

  • An applicant may appeal to the Federal Court if they believe that the case officer or the RRT has made a serious error of law. There is no right of appeal of the Federal Court's decision to the High Court - special leave to appeal must first be granted by the High Court.

  • While the RRT may review all of the facts of a case and grant a protection visa, the Federal Court can only review questions of law and refer the matter back to the RRT for reassessment. The Federal Court cannot grant a protection visa. The Federal Court can only uphold an earlier refusal to grant a protection visa or direct that an application be reassessed by the RRT.

Resolution of Appeal Applications from 1998/1999

Year

Applicant withdraws

Minister withdraws

Applicant successful

Minister successful

Total

1998/1999

256

199

73

387

915

1999/2000

262

111

77

473

923

2000/2001

396

205

71

611

1283

2001/2002

410

131

75

811

1427

 

  • Legislation was introduced in 1994 that restricted the ability of the Federal Court to challenge unlawful migration decisions.

  • The changes removed the ability of the Federal Court to intervene even if a decision of the RRT:

  • Breached the common law rules of natural justice;

  • Was so unreasonable that it could not have been made by a reasonable person;

  • Was made in bad faith;

  • Appeared to be biased;

  • Was made taking irrelevant considerations into account or without taking relevant considerations into account;

  • Constituted an abuse of power.

  • Until September 2001, applicants could still appeal to the High Court to intervene as the High Court has constitutional powers to review administrative decisions such as those made by the RRT. The constitutional powers conferred on the High Court cannot be taken away by legislation.

  • In September 2001, the Federal Government enacted legislation that repealed the 1994 legislation. The 2001 legislation provides that a "privative clause" decision:

  • Is final and conclusive;

  • Must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

  • Is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account - these are the regular administrative law remedies available at common law.

  • The effect of the privative clause is that the Federal Court and High Court can only overturn the Tribunal's decision in the following very limited circumstances:

  • The Tribunal did not act in good faith when making the decision;

  • The decision is not reasonably capable of reference to the decision-making power given to the Tribunal;

  • The decision does not relate to the subject matter of the legislation - i.e. it is beyond the scope of the legislation; or

  • The decision exceeded the limits in the Commonwealth Constitution.

  • Section 474(2) of the Migration Act defines a privative clause decision as an administrative decision made under the Migration Act or regulations. Most decisions about refugee protection visas fall within this definition. The legality of this clause is the subject of an appeal that has been heard by the High Court. A decision is expected before February 2003.

  • Despite the limitations imposed on the Courts by the 2001 legislation, the High Court retains the power to hear appeals in the following circumstances:

  • appeals on the legality of actions taken by officers of the Commonwealth - section 75(v) of the Constitution. This would include RRT and the Minister;

  • appeals where an issue involves an international treaty to which Australia is a party - section 75(i) of the Constitution.

  • The courts have generally accepted privative clauses despite challenges that they represent an attempt to oust the jurisdiction of the courts on the basis that they simply expand the jurisdiction of the decision maker so deem legal any decision made by the decision maker.

  • Commentators have suggested that for asylum seekers, the privative clause legislation means that provided a decision maker applies the Migration Act strictly, it will be difficult for a court to overturn a decision on the basis it is unlawful. This ultimately depends on how the courts interpret the Migration Act.

  • Decisions made by case officers cannot be reviewed by the Federal Court. Therefore, an applicant whose application is rejected must appeal to the RRT within the 28 day appeal period. Otherwise, the applicant will lose its right to appeal to the Federal Court but may still be able to appeal to the High Court.

  • The right to judicial review of administrative decisions is considered internationally to be a human right and the right of equal access to courts is recognised specifically in the Refugee Convention and other international treaties.

  • The Law Council of Australia has argued that judicial review of refugee decisions is essential because:

  • It encourages consistent decisions and ensures the correct interpretation of the law;

  • There is an ongoing need for interpretation of migration laws to keep place with changing international circumstances;

  • The rights of applicants in tribunals are severely restricted since there is no right to legal representation or to call witnesses or cross-examine witnesses; and

  • It encourages the independence of tribunals and helps prevent a negative culture of rejection of asylum seekers from developing.

Minister's Discretion

  • Section 417 of the Migration Act provides the Minister with power to grant a protection visa to an applicant where the RRT or a court has rejected an application for review.

  • The Minister can exercise this power when he or she believes it is in the public interest to do so but is not required to reconsider every rejected application.

  • The fact that the discretion is exercised by an individual inherently involves some bias. There have been suggestions that particular ethnic groups have been favoured over others.

International Appeals

  • Applicants have limited rights to make complaints to United Nations committees.

  • These are generally only available in extreme cases, are costly and involve lengthy delays.

Overall Observations

  • The process works in the Government's favour as applicants often do not have access to information about:

  • the purpose of the initial screening interview and that it is in the asylum seeker's interest to speak frankly about the reasons they are seeking asylum;

  • what is involved in applying for refugee status.

  • Even the most basic information about their rights and the process may assist.

  • The lack of information and access to legal advisers or other people who may provide the information appears to make the process inherently unfair.

  • A move to a more fair and just process upfront may lead to less appeals and assist in reducing the cost of detention and processing applications.

  • There is a real question about the effectiveness of the RRT review mechanism given the lack of independence of the RRT from the Minister in that the Minister effectively acts as prosecutor and judge in RRT reviews.