: Migration decisions
The limits of judicial review in migration decisions – an
Frank Brennan SJ AO
Migration Institute of Australia
Victoria State Conference
Grand Hyatt, Melbourne
12 November 2003
For the last two years, I have been visiting immigration reception
and processing centres each month in places like Woomera and Baxter.
I have met regularly with government seeking some resolution of
the outstanding problems. And I have had the opportunity to visit
the UK, the Continent, Canada and the US seeing how they are dealing
with onshore asylum issues.
Onshore asylum decisions make up just one subset of migration decisions
but it is a subset that highlights the policy problems confronting
government in tailoring the appeals processes. Here in Australia
we have a deep mindset that these are matters for the Executive
alone. We are an island nation continent in a region that does not
regularly produce its own refugees. With a fully computerised visa
system augmented by carrier sanctions and airline liaison officers,
we have a virtual offshore border. Without a bill of rights, we
have a system of Executive government which is now less constrained
by the judiciary than any other equivalent country whose jurisprudential
foundations sprung from the UK.
Since 2000, the RRT has set aside 6% of all decisions appealed
by onshore asylum seekers not being held in detention, but in the
same time the RRT has set aside 37% of all decisions appealed by
onshore asylum seekers being held in detention. 90% of those held
in detention onshore have established an asylum claim. Only 50%
of those held in detention offshore in places like Nauru have established
an asylum claim. Government's main stated reason for excising islands
from our migration zone is the opportunity to process asylum claims
without access to the courts, thereby avoiding the legal skewing
of the determination of refugee status. Presumably another reason
is the ongoing desire to send a message to people smugglers and
other prospective asylum seekers that they should not bother trying
to reach Australia where they are more likely to be proved to be
refugees and where they would then be guaranteed resettlement in
The Pacific Solution is unlikely to be abandoned by the present
government until we have streamlined the appeals process for refugee
decisions onshore. Though there be a case for streamlining the appeals
process, there is still a need to affirm the role of the courts
in upholding human rights even in matters of political controversy
and even in a jurisdiction lacking a bill of rights.
When the Dutch relinquished West Papua to Indonesia in 1963, Australia
for the first time confronted the reality of a land border with
territory that could produce a steady refugee flow. Sir Garfield
Barwick, Minister for Foreign Affairs, told parliament, "If
any requests are received under the heading of political asylum,
they will be entertained and decided on their political merits from
a very high humanitarian point of view in accordance with traditional
British principles." But he told his departmental officers
that they "should not be too infected with the British notion
of being a home for the oppressed". Once these determinations
were subject to judicial and parliamentary scrutiny, there was bound
to be a problem - not of national sovereignty but of Executive accountability.
B. THE SITUATION OF LAWYERS, MIGRATION AGENTS AND APPEALS IN AUSTRALIA
1. Government's Desire to Keep Lawyers Away from Asylum Seekers
The demonisation of migration agents and refugee lawyers has reached
a new low in Australia. When a boatload of 56 Vietnamese turned
up at Port Hedland in July, many of us reasonably assumed that they
would be brought ashore for processing at Port Hedland. Afterall
the joint parliamentary committee explained in 1994 that the rationale
for detention of asylum seekers was in part because the Port Hedland
detention facility was close to where most of the boats landed.
The parliamentary committee admitted that the remoteness of Port
Hedland would create some problems for ease of access to legal advice.
Instead, nine years later these people were to be transported to
Christmas Island. Immigration Minister Ruddock took the opportunity
for another potshot at lawyers and do-gooders:
I don't think, particularly, Australians will be happy at the
sight of a large number of prospective pro bono legal advisers
becoming almost orgasmic at the prospect of being able to get
to Christmas Island and to offer them advice.
When asked how he would describe those people, Mr Ruddock replied
to the press conference, "I think I've used enough colourful
words to make your day."
When the second boat to reach Australia in two years was being
towed out on to the high seas last week, lawyers sought the intervention
of the Supreme Court of the Northern Territory to ensure that the
14 Turkish Kurds could pursue their asylum claims if they had any,
which of course was highly likely. Australia has just completed
its participation in the UNHCR's annual EXCOM endorsing the "Conclusion
on Protection Safeguards in Interception Measures". That conclusion
sets down two relevant considerations "to ensure the adequate
treatment of asylum seekers and refugees amongst those intercepted":
- The State within whose sovereign territory, or territorial waters,
interception takes place has the primary responsibility for addressing
any protection needs of intercepted persons
- Interception measures should take into account the fundamental
difference, under international law, between those who seek and
are in need of international protection, and those who can resort
to the protection of their country of nationality or of another
The Commonwealth saw fit to inform the court by affidavit: "On
6 November 2003 the AFP/DIMIA team boarded the vessel and conducted
interviews with the crew and passengers to elicit intelligence information
regarding possible people smuggling." Why did the Commonwealth
not see fit to inform the court of the interviews conducted about
possible asylum claims? Or were no such interviews conducted? Did
the Commonwealth see itself as having primary responsibility for
addressing the protection needs of these intercepted persons? Is
Australia now following the US precedent of the shout test? When
conducting the credible fear test in international waters, the US
Coastguard directly asks Cubans and Chinese, "Do you have any
concerns?" Others are not asked any questions about possible
asylum claims. Unless they shout, "I want asylum", they
are treated as having no credible fear. The Australian authorities
went to great lengths to ensure that these 14 had no access to lawyers,
the media or do-gooders. Only by ensuring complete isolation of
persons without English language and without familiarity with the
options available to them could the Australian authorities dare
to submit to a court (as the affidavit did):
If the person or persons in charge of the vessel requested to
be detached from the towline in order to proceed anywhere in the
world except Australia, subject to the Commander of the HMAS Geelong
being satisfied of the bona fides of that intention and subject
to his being satisfied in relation to his obligations concerning
the safety of life at sea, the towline will be detached and the
vessel permitted to leave.
The Government's conduct on the high seas and in the court is consistent
with the perspective that the protection needs, if any, of these
intercepted persons were the responsibility of any country other
than Australia and the last thing Australia wanted was to hear any
expression of protection needs. The strategy could come completely
unstuck if lawyers were able to advise these persons to claim asylum
and if lawyers were to advise them that they had a right to go anywhere
except Indonesia. Just one more contemporary instance of why we
need vigilant lawyers and dedicated migration agents. It is intriguing
to note the new minister's explanation to the Australian public
that these 14 could seek Australian protection visas in Indonesia.
In previous years, Australia has granted only 13 such visas from
Indonesia each year, and for a sound policy reason. The previous
minister used to explain that the grant of any more visas from Indonesia
would set up Indonesia as a honey pot. People smugglers and desperate
asylum seekers would think they only needed to make it to Indonesia
in order to have a fair chance of entering Australia lawfully.
2. The Clogging of the Australian Courts Following the Government's
Misconceived Attempt to Institute a Privative Clause
In 1985, the Australian courts had started granting judicial review
of migration decisions under the comprehensive Administrative Decisions
(Judicial Review) Act. Under this Act, the courts were able to review
decisions by public servants and tribunals and set aside those decisions
if there had been a denial of natural justice or if the decisions
were judged to be so unreasonable that no reasonable person could
have made the decision. In 1989, a code for decision makers in the
migration area was enacted in legislation in the hope that when
the decision makers followed the code, there would be little chance
of successful appeals to the courts. Those persons wanting to extend
their stay in Australia by delaying a final decision would have
less access to the courts. In 1993, the Refugee Review Tribunal
(RRT) was established in the hope that all failed asylum seekers
would be able to access the tribunal which would be able to give
quick, fair and transparent decisions, reducing the need for any
access to the courts.
Though Australia does not have a bill of rights, section 75(v)
of the Constitution does provide:
In all matters in which a writ of mandamus or prohibition or
an injunction is sought against an officer of the Commonwealth,
the High Court shall have original jurisdiction.
The effect of this clause is that when a decision is made by a
Commonwealth public servant (including the RRT), the person affected
by the decision has the right to appeal to the highest court in
the land claiming that the decision was not made in accordance with
the law. Usually, the judges and politicians are agreed that it
is not a good idea to have the time of the High Court taken up in
considering such applications in the first instance. The jurisdiction
is transferred to a lower court and the High Court retains its traditional
role as the ultimate court of appeal. Marking the centenary of the
High Court of Australia on 6 October 2003, Chief Justice Gleeson
Refugee cases are now a major area of constitutional litigation,
especially in the application of s 75(v). Judicial review of the
lawfulness of action by officers of the Commonwealth was regarded,
at Federation, as an essential protection of the rights of citizens
and of the States. In the Convention debates, Mr Barton referred
to the necessity of providing for the issue of constitutional
writs to public officers "so that the High Court may exercise
its function of protecting the subject against any violation of
the Constitution, or of any law made under the Constitution".
The capacity of citizens to challenge, and of courts to judge,
the validity of legislation, and the lawfulness of administrative
action, means that the judiciary must remain at arm's length from
the legislative and executive branches of government. In Alfred
Deakin's speech to Parliament in support of the Judiciary Bill,
he quoted Edmund Burke, who said:
"Whatever is supreme in the State ... ought to give a security
to its justice against its power. It ought to make its judicature,
as it were, something exterior to the State".
Burke made that statement in criticising the lack of independence
of tribunals set up by the revolutionaries in France. The idea
that power and justice are distinct, and separate, aspects of
sovereignty still struggles for acceptance in many places. It
came early to Australia. It is embedded in our Constitution. It
goes to the essence of the role of this Court.
When the courts have shown a willingness to overturn refugee decisions,
the politicians have been less than impressed. For more than a decade,
Philip Ruddock has been very impatient with the role of the courts.
Back in March 1992, while in Opposition, he told the Joint Committee
on Migration Regulations, "I have said to people that if we
want the High Court of Australia to concentrate its mind on these
matters, we should let 23,000 applicants put their cases to the
High Court. It would quickly find a mechanism for dealing with them."
He went on to say:
I am still one of those who would be quite happy to remove that
matter from the purview of the Administrative Decisions (Judicial
Review) Act and leave the courts to see whether or not they would
like to use their original jurisdiction. The High Court could
willingly do that, I suppose. I guess that is the matter that
the Government was not prepared to bite the bullet on, was it?
For some years, the politicians were concerned that the Federal
Court was making decisions too favourable to asylum seekers and
was reviewing too many decisions of the DIMIA case officers who
were rejecting refugee claims. The politicians took a gamble and
restricted the jurisdiction of the Federal Court hoping that the
High Court itself would not want to fill the gap. The High Court
made it clear that it had no option but to exercise its constitutional
jurisdiction if the politicians were not going to allow lower courts
to perform the role.
Ultimately, the Parliament in wake of Tampa decided to try and
oust the jurisdiction of all the courts including the High Court
with the use of a "privative clause" which purported to
exclude decisions under the Migration Act from judicial review by
the courts. Minister Ruddock was furious when some of the Federal
Court judges continued to overturn migration decisions on the basis
that his privative clause did not exclude all review by the courts.
On 30 May 2002, he told the Channel 9 Today program:
What we are finding is that, notwithstanding that legislation,
the courts are finding a variety of ways and means of dealing
themselves back into the review game.
And what I have said to the Parliament is, look, we’ve
passed this legislation, this was a decision of the Parliament.
The High Court of Parliament is saying decisions of the Tribunal
should be final and conclusive and if we need to give the court
some further advice we may need your support again.
Parliament that decided the laws and not the "unelected and
unresponsible officials" of the courts. This Ruddock approach
would be arguable if Australia did not have a Constitution that
sets limits even on the powers of a popular government and on an
unsympathetic parliament acting against unpopular groups. Ultimately
it is justices of the High Court who are charged with the constitutional
function of ensuring that all persons and all institutions are subject
to the law.
There was a time when the Commonwealth conducted itself as a model
litigant before the courts. Because of the politics of refugees,
those days have gone and we now pay the price of losing such sensible
conventions. When the Federal Court constituted a special five member
bench to consider appeals on the new privative clause provision,
Chief Justice Michael Black saw fit to call Minister Ruddock to
account for his public statements critical of the courts. He addressed
the Solicitor General of the Commonwealth:
Despite these statements I have not previously responded to any
of them publicly. The most recent statement however raises a new
issue since it would appear that it could only refer to the issues
before the Court on these appeals – appeals to which your
client is a party. He is the respondent in four appeals, in which
he was successful before the trial judge, and he is the appellant
in one appeal in which he was unsuccessful before the trial judge.
The statement was made only a matter of days before the date fixed
weeks ago for the hearing of the appeals.
You would of course know Mr Solicitor that the court is not amenable
to external pressures from Ministers or from anyone else whomsoever,
but we are concerned that members of the public might see the
Minister’s statements as an attempt to bring pressure on
the Court in relation to these appeals to which he is a party.
All this simply earned Mr Ruddock a pat on the back from the Prime
Minister and a round of applause in the party room.
In February 2003, all seven justices of the High Court threw out
Minister Ruddock's attempt to deny asylum seekers access to the
courts. The government's intention was that once the Refugee Review
Tribunal had reviewed a decision to refuse a protection visa there
would be no appeal possible to the courts. In the main test case
on the privative clause, a Bangladeshi person who was refused a
protection visa appealed to the courts on the ground that he was
denied natural justice. He argued that the tribunal took into account
adverse material which was relevant to his case without giving him
notice of the material and without giving him any opportunity to
address it. The High Court has said that persons in this situation
can still appeal to the courts. They can appeal not only to the
High Court, but also to the Federal Court and the new Federal Magistrates'
Court. Importantly the High Court, despite attempts by the government
to stop this practice, can still remit such matters to lower courts
to avoid the High Court being clogged with such cases.
Chief Justice Gleeson insisted on the need for decision makers
not only to act in good faith. They must also act with fairness
and detachment: "the requirement of a fair hearing is a limitation
upon the decision-making authority of the Tribunal of such a nature
that it is inviolable". The Chief Justice said that the broad
reading, which the Commonwealth tried to give to its privative clause,
was inconsistent with four principles of statutory interpretation:
- If the words are ambiguous, the court should interpret the
words consistent with Australia's international obligations
- The court should not impute to the Parliament an intention
to abrogate or curtail fundamental rights or freedoms
- The Australian Constitution is framed on the assumption that
the rule of law applies to actions by the executive government
- The court presumes that the parliament does not intend to deprive
a person access to the courts except to the extent expressly stated
or necessarily implied.
It is not enough for the immigration officers or the RRT simply
to establish that they acted in good faith. Asylum seekers, like
the rest of us, are entitled to expect fairness. The Chief Justice
concluded: "Parliament has not evinced an intention that a
decision by the Tribunal to confirm a refusal of a protection visa,
made unfairly, and in contravention of the requirements of natural
justice, shall stand so long as it was a bona fide attempt to decide
whether or not such a visa should be granted."
Five of the other justices pointed out that the Migration Act is
a very complex piece of legislation and any decision made by the
Minister or the RRT must be "a decision made under the Act".
They said, "It is impossible to conclude that the Parliament
intended to effect a repeal of all statutory limitations or restraints
upon the exercise of power or the making of a decision." As
the Migration Act and Regulations contain an exhaustive list of
the criteria for the grant of various classes of visa, Justices
Gaudron and Kirby pointed out that the privative clause could not
be invoked to shield a wrong decision on the basis that the decision
maker had acted in good faith when failing to be satisfied that
the conditions for the grant of the visa had been fulfilled. If
the criteria for the grant of a visa have been misconstrued or overlooked,
the decision maker's error is a jurisdictional error reviewable
by the courts. Also the courts retain the power to review RRT decisions
which have been reached without according procedural fairness to
an applicant. The privative clause comes into play, excluding court
review, only if the error made by the decision maker is a "non-jurisdictional
error" i.e. an error made within the jurisdiction which the
decision maker has. The Australian Constitution guarantees that
Courts must always be able to assess whether a Commonwealth decision
maker has made a decision within their jurisdiction. Five of the
justices were very scathing in stating that "the fundamental
premise" for the privative clause legislation was "unsound".
They went out of their way to make it plain that the litigation
was not a mere word game. They said:
It is important to emphasise that the difference in understanding
what has been decided about privative clauses is real and substantive;
it is not some verbal or logical quibble. It is real and substantive
because it reflects two fundamental constitutional propositions,
both of which the Commonwealth accepts. First, the jurisdiction
of this Court to grant relief under s 75(v) of the Constitution
cannot be removed by or under a law made by the Parliament. Specifically,
the jurisdiction to grant s 75(v) relief where there has been
jurisdictional error by an officer of the Commonwealth cannot
be removed. Secondly, the judicial power of the Commonwealth cannot
be exercised otherwise than in accordance with Chapter III. The
Parliament cannot confer on a non-judicial body the power to conclusively
determine the limits of its own jurisdiction.
There is guaranteed constitutional access to the courts to correct
jurisdictional errors by the RRT and the Minister. This guarantee
covers any application based on the claim that the minister or the
tribunal has not acted with fairness and detachment. Back in 1994,
the parliamentary committee investigating mandatory immigration
detention in remote areas had acknowledged the inconvenience and
problems with accessing appropriate services, including the additional
travel costs for lawyers. Justice Callinan highlighted the constitutional
There are certain matters which cannot be ignored for the purposes
of judicial notice. Those matters include that the persons seeking
the remedies may be incapable of speaking English, and will often
be living or detained in places remote from lawyers.
Justice Callinan pointed out that Parliament could not even set
time limits on access to the courts "as to make any constitutional
right of recourse virtually illusory".
How then did the government get it so wrong? Weren't they warned?
Yes they were. Locking out the courts has been one of Minister Ruddock's
abiding passions. He first tried introducing this legislation in
June 1997, and again in September 1997. Back then, the Labor Opposition
opposed the legislation and accurately predicted that "the
Coalition will probably fail in this objective. The jurisdiction
of the High Court cannot be totally excluded" . Mr Ruddock
claimed that the legislation had been given the tick by a bevy of
silks including Tom Hughes QC, once a Liberal Attorney General.
That seemed a dubious claim once Mr Hughes appeared before the Senate
committee in January 1999 saying, "the entrenched constitutional
jurisdiction of the High Court to grant what is called prerogative
relief…cannot be eradicated and abrogated, except by passage
of legislation after a referendum". He warned that the "passage
of this bill would produce the altogether undesirable effects to
which two former chief justices, Sir Anthony Mason and Sir Gerard
Brennan, had alluded". A month before Mr Hughes had come out
and given evidence in his personal capacity, Minister Ruddock was
so cock sure of his position (which has now been discredited 7 -
nil in the High Court) that he told Parliament, "My good friend
Sir Gerard Brennan has misunderstood in part the nature of the provisions
that we are proposing." Hughes, Mason and Brennan understood
all too well.
It was only in the aftermath of Tampa that the government was bold
enough and the Opposition defeated enough for the Parliament to
retreat from legal principle, enacting the ambiguous and suspect
privative clause. There will continue to be added uncertainty with
future litigation because the government wanted to play fast and
loose, tampering with constitutional principle despite all the warnings.
Now any disaffected asylum seeker can appeal to the courts (including
the Federal Magistrates Court) alleging that they have been denied
a fair hearing before the RRT. A week after the High Court decision
on the privative clause, the Government published some information
for the thousands of TPV holders who were applying for renewal of
their visas. They were told:
A TPV holder whose application for another protection visa is
refused will have the right to seek review of the decision from
the Refugee Review Tribunal or the Administrative Appeals Tribunal.
If the review fails, or they decide not to seek review, they
will need to leave Australia once any review proceedings have
What will be the situation for those persons seeking judicial review
of their RRT rejection? Will they be removed from Australia? Will
they be taken back into immigration detention? Will they be eligible
for a bridging visa? If so, will they have to provide a bond or
security? Will they have the right to work? These are not academic
questions given that the appeals process could take some time. It
is conceivable that some TPV holders who have been living in the
community for three years might now take many more years to exhaust
their appeals in the courts once the RRT has rejected the renewal
of their visa.
Rather than complaining about this outcome, Minister Ruddock should
heed the call of Tom Hughes when he addressed the Senate Committee
four years ago:
It seems to me that the driving force behind this proposed legislation
is economy of administration—a very laudable objective in
itself, although perhaps it can sometimes be carried as an objective
to undue lengths. What the committee might like to ask itself,
looking at the matter on a more general level than the strictly
legal, is this: we are, as I said, an affluent and a free society.
It is in the nature of things, that being such a society, people
claiming to be oppressed and to be the victim of injustice in
their own countries will be forever knocking on our doors. It
is one of the burdens of being a free society that we should,
you may think, provide a system of dealing with persons claiming
to be refugees which is as legally certain as any branch of the
law can be and that has established and clearly understood legal
criteria of exemption or liability.
Now that the High Court has established beyond doubt that a privative
clause cannot be devised to exclude refugee decisions from the courts,
it is time for the executive government to design a process for
the orderly determination of these matters in the courts. No reform
will get through the Senate unless it is first approved by the judiciary
as a reform that they think to be more productive of fair and efficient
Government's constant mistake has been to try and narrow the window
of opportunity for appeal by limiting the grounds on which one may
appeal. A desperate, failed asylum seeker wanting to buy time in
a free country will try any appeal no matter how narrow that window
of opportunity. The key technique is not the narrowing of the window
but the limiting of access to the window, no matter how wide or
narrow that window might be. The key to reform will be the need
to obtain leave to appeal. Insofar as leave cannot be denied because
of section 75 of the Constitution, the courts have the power to
deal with the application for prerogative relief on the papers.
There will need to be an alignment of the grounds on which any court
in the hierarchy can grant relief such that "there is no advantage
for an applicant making an application under section 75(v) of the
Constitution to the High Court".
3. The Need for Strictly Regulated Appeals
Make no mistake. There has to be a limit placed on appeals in migration
decisions in the wake of the collapse of the government's privative
clause strategy. The latest DIMIA annual report reveals that 6,351
applications and appeals to the courts were lodged against department
or tribunal decisions in 2002-03 as compared with 2,597 for 2001-02.
4,363 matters were resolved in the courts in 2002-03 as compared
with 1,899 for 2001-02. The Minister's success rate went up from
90.4% to 92.5%. There were 3,165 active cases before the courts
as at 30 June 2003 as compared with 1,079 active cases as at 30
June 2002. But these blowout figures do not provide a reason for
scrapping appeals to the courts completely. And constitutionally,
it is just not possible.
Appeals from primary decisions are critical in the more politicised
areas of migration law and policy. During the financial year 1 July
2001 - 30 June 2002 at the height of the processing of the fourth
wave of boat people, the Refugee Review Tribunal (RRT) set aside
62% of all Afghan decisions appealed and 87% of all Iraqi decisions
appealed. This means that Afghan asylum seekers got it right 62%
of the time when they claimed that the departmental decision makers
got it wrong. And the public servants got it wrong 87% of the times
that the Iraqi applicants claim to have been mistakenly assessed.
In that time, the RRT set aside 115 of the 132 Iraqi decisions appealed
and 197 of the 318 Afghan cases appealed. Meanwhile it set aside
only 7.9% of decisions appealed by members of other ethnic groups
(398 of 5012 cases). Even more disturbing than these comparisons
is the statistic that in 2001-2, the RRT finalised 855 detention
cases of which 377 were set aside. This is a 44% set aside rate
in detention cases. Though there are problems with the significant
Iraq and Afghanistan caseloads, DIMIA rightly notes that over 90%
of the refugees from these two countries "are identified by
the Department through the primary decision-making process".
But those Iraqis and Afghans who are turned down have had a very
high success rate before the RRT.
Set aside rates in the RRT:
The RRT delegation in their presentation of evidence at the HREOC
inquiry last year was unable to give a coherent public explanation
for the discrepancy in set-aside rates for Afghan and Iraqi cases.
Especially in the case of Iraqi claims up until early in 2003 where
there had been little in-country change from the date of primary
decision to the date of RRT hearing, the set-aside rates are very
troubling. Admittedly there has been a rapid change of circumstances
in Afghanistan but those changes are just as likely to render the
applicant ineligible for protection some months later when they
appeal to the RRT from the primary decision maker. And yet 62% of
those who appealed the primary decision succeeded in 2001-2.
When the government's internal decision making processes are so
infected in relation to an asylum group who have been so publicly
demonised by government in part for the government's own domestic
political advantage, it is imperative that the decision making process,
including review by a government appointed tribunal with members
on part time contracts and with a decision making process that is
not public, be reviewable by the courts able to correct errors of
law made by the decision makers.
B. OVERSEAS EXPERIENCE
What lessons are there from overseas, especially from those countries
that process many more onshore asylum claims than we do. At the
outset, even human rights advocates such as myself have to concede
that there are limits to the resources governments can dedicate
to onshore asylum appeals. The success rates of appeals in the higher
courts is very low. There is a discrepancy between the international
offshore appeal requirements and the onshore requirements. People
will use the appeals process to delay their departure from the country
of asylum even if they have no refugee or humanitarian claim. But
government also needs to concede that a closed system of public
service determination and a single appeal to a tribunal whose membership
is dependent on regularly renewed government appointment is unsatisfactory
unless there be some prospect of judicial review and some access
to legal aid.
I will outline the situation in the UK and make some observations
on developments on the Continent, in Canada and the US.
1. United Kingdom
The UK Home Secretary David Blunkett has shared the concern of
Australia's Philip Ruddock that too many court resources have been
dedicated to fruitless refugee appeals which bring satisfaction
to the legal purists but which do little to change the outcome in
the particular cases. Meanwhile these appeals provide the non-paying,
failed applicant more time to remain in country. The Nationality,
Immigration and Asylum Act 2002 provides a more restrictive range
of appeals to the courts. Asylum claims in the UK are determined
by public servants who act in the name of the Secretary of State.
The Secretary of State either grants the asylum claim, rejects it
or grants the applicant leave to enter or to remain in the UK for
a set period of time (what used be called exceptional leave to enter
or remain [ELE or ELR]). An asylum seeker can appeal on the basis
that the original decision was unlawful or that the person taking
the decision should have exercised differently a discretion conferred
by immigration rules. If the decision was to remove the applicant
from the UK, then an appeal may be brought to the adjudicator on
the basis that the removal would be a breach of the UK's obligations
under the Refugees Convention or under the Human Rights Act 1998.
If the original decision maker decided to refuse a claim for asylum
and instead only to grant leave to remain in the UK for one year
or less, there is no appeal to an adjudicator. However if the applicant
later applied for an extension of the leave to remain and that extension
was refused with the result that the applicant was liable for removal
from the UK, it would be possible to appeal to an adjudicator.
If the adjudicator refuses to grant asylum, there is no further
right of appeal. The applicant may appeal further to the Immigration
Appeal Tribunal if the Tribunal gives its permission for the appeal.
The appeal can be only about a question of law. There is no way
that the Tribunal will involve itself in the merits of the applicant's
claim. If the Tribunal declines to give permission for an appeal,
the applicant can go to a court and seek review of the Tribunal's
action. A single judge who will decide the matter on receipt of
written submissions constitutes the court. The judge will not hear
oral evidence and the judge's decision is final.
If the applicant gets permission for an appeal but then fails before
the Tribunal, the applicant may appeal further to the Court of Appeal
but only if the Tribunal or the court gives permission. Once again
the court will consider only questions of law. The aim of these
provisions is that the failed asylum seeker is usually given one
appeal to an adjudicator who can consider whether the decision maker
exercised the discretions under the rules correctly and whether
the decision maker made a decision within the law. It is not for
the adjudicator to say that another decision would have been preferable.
If the original decision maker could have come to that decision
acting lawfully, that is the end of the matter. The failed asylum
seeker has further appeals but only if the argument is restricted
to the original decision maker's and the adjudicator's interpretation
of the law.
The UK has now adopted the system of non-suspensive appeals. Even
if a person appeals their decision, this does not have the effect
of suspending the order for removal from the country. A failed asylum
seeker may not bring an appeal while remaining in the UK if the
Secretary of State issues a certificate that another Member State
of the EU has responsibility for the processing of the claim, or
if the applicant can be removed to another country with no risk
of refoulement or threats to life and liberty. Even if the failed
asylum seeker is bringing a human rights claim, departure from the
UK can still be a condition for the hearing of any appeal if the
Secretary of State certifies that in his opinion the human rights
claim is clearly unfounded. By certifying that an asylum claim or
human rights claim is clearly unfounded, the Secretary of State
can require the departure of the applicant before any appeal proceeds.
The British Refugee Council is aware of only 1 non-suspensive appeal
having succeeded. There is no question of the court or tribunal
having a discretion to decide whether the applicant's presence would
be helpful for the determination of the appeal. The only long term
safeguard is that the Secretary of State has to appoint someone
to monitor his exercise of this certifying power. The monitor is
then to report to Parliament at least once a year. If the asylum
seeker is entitled to reside in one of the ten proposed new Member
States of the EU, the Secretary of State must require the departure
of the applicant unless he is satisfied that the claim is not clearly
unfounded. Government sees two advantages in an expanded EU: there
will be no prospect of asylum claims coming from the new Member
States; and there will be every opportunity to return asylum seekers
from other countries if they have even a right of residence in one
of the new ten Member States. The legislation permits the Secretary
of State to add other states to the list of safe residence countries.
The Secretary of State can even obtain the removal of the applicant
before the hearing of an appeal. He certifies that the applicant
will be removed to a country other than the applicant's country
and that "there is no reason to believe that the person's rights
under the Human Rights Convention will be breached in that country".
The government assumes that most appeals brought by applicants from
outside the UK will be abandoned by the applicants.
If the Secretary of State or an immigration officer thinks an appeal
is being brought only to delay removal from the UK, he may sign
a certificate that results in the appeal being discontinued. If
they think the original immigration decision being appealed relates
to a matter that could have been raised in an earlier immigration
appeal by the applicant, they may also issue a certificate discontinuing
Given the post September 11 concerns, there are also provisions
which allow the Secretary of State to discontinue appeals if he
certifies that the original decision to deny asylum was because
it would be in the national interest that the applicant be removed
from the UK, or even that it would be in the interests of the relationship
between the UK and another country. The Secretary of State can also
stop an appeal if he certifies that the original decision to deny
asylum was based on information that should not be made public.
The Secretary of State can even stop an appeal if he certifies that
the original decision to deny the asylum claim was made personally
by the Secretary of State on the ground that the applicant's exclusion
from the UK was "conducive to the public good". Even worse,
an appeal can be denied if the decision to deny asylum was made
by a public servant in accordance with a direction given personally
by the Secretary of State identifying this particular applicant.
Australia is not alone in going to great lengths to limit the appeal
rights of asylum seekers.
Access to legal aid is under threat in the UK. In migration cases,
there are very limited resources available. The Lord Chancellor's
Consultation paper states:
What is not guaranteed is that within the maximum fee scheme
a representative will be able to claim the costs of attending
with the client at either a screening or substantive interview.
We are proposing that the time allowed for providing initial
advice in an asylum case should be limited to a maximum of 5 hours
work. We see the key to putting the client's case to be the statement
of case prepared on behalf of the client by their representative
and setting out the reasons for applying for asylum which is then
submitted to the Home Office.
Regarding appeals, the Lord Chancellor's paper states:
Subject to a means and merits test, public funding is available
for representation before the Immigration Appellate Authority
and the Immigration Appeals Tribunal.
The success rate at the adjudicator stage (including both legally
aided and non-legally aided cases) was 22% in 2002, and 17% in
the first quarter of 2003.
Evidence from the LSC audit process and peer review suggests
that there is over-claiming in appeals work and that suppliers
continue to fund unmeritorious cases. The LSC receives complaints
from representatives about the conduct of other suppliers whom
they believe are providing representation in cases which have
no merit and where previous representatives have refused to grant
We therefore propose to introduce a maximum fee for representatives'
and interpreters' costs at the adjudicator stage and a separate
maximum fee when applying for leave to appeal to the Tribunal.
This will apply both to asylum and non-asylum cases.
It is proposed that the maximum fee for preparing an appeal to
an adjudicator will equate to 4 hours' costs to prepare the appeal.
The necessary time for attending the hearing will also be allowed
in addition. .
We also propose to set maximum limits for interpreters' costs
and disbursements such as medical reports at the appeal stage
and again have asked the LSC to consult on the appropriate limits.
It is proposed that the maximum fee for applying for leave to
appeal to the Tribunal will be limited to £150.00 (excluding
As of 1 January 2004, legal aid will allow only 5 hours for preparation
and presentation of case. The presence of lawyer at the interview
is judged to be unnecessary. Presently 15-20 hours are needed to
present a case. The government is acting in the name of quality
control and efficiency but the unscrupulous agents will still operate
in 5 hrs and the good ones in conscience say it cannot be done.
An asylum seeker cannot go to another lawyer unless they have brought
a complaint against first lawyer. The Law Society has warned of
dangers but the politicians are not to be deterred.
In his address to the Labor Party Conference on 30 September 2003,
Tony Blair said:
Britain should always be open to refugees. We can be proud of
the part immigration has played in this country. But economic
migrants should come in through a proper immigration process.
Changing the law on asylum is the only fair way of helping the
genuinely persecuted - and its best defence against racism gaining
ground. We have cut asylum applications by a half. But we must
go further. We should cut back the ludicrously complicated appeal
process, de-rail the gravy train of legal aid, fast-track those
from democratic countries, and remove those who fail in their
claims without further judicial interference.
The then leader of the Conservatives, I D Smith, told their conference
a week later:
The asylum system is a disaster – spiraling out of control.
While Tony Blair travels the world, the world is travelling here.
As Oliver Letwin has pledged, under the Conservatives there’ll
be 80,000 fewer asylum seekers – and 40,000 more police
The Conservatives' Shadow Minister Oliver Letwin pledged removal
of persons to islands for processing but was not able to name the
islands. The Conservative policy document issued at the conference
Conservatives will set a fixed annual quota of 20,000 refugees
identified overseas and end the right to apply for asylum from
within the UK.
- Conservatives will set a quota limiting the number of asylum
- We will identify refugees in greatest need overseas and allow
a fixed annual quota of 20,000 into the UK
- Any asylum seeker not coming as part of the quota will be immediately
removed to an offshore location for the processing of their claim.
- We will renegotiate or withdraw from international asylum agreements
as necessary to implement our new approach. Conservatives will
end the right to apply for asylum from within the UK.
2. European Union
One of the greatest problems confronting all democratic countries
priding themselves on the rule of law is how to process asylum claims
effectively. They need to ensure fair decision making for the applicant
without at the same time providing opportunities for unsuccessful
applicants to exploit the appeals process so as to extend their
stay. The EU Commission has found it very difficult to draft a proposed
council directive on the minimum procedures to be used by Member
States in granting and withdrawing refugee status. The Commission's
first attempt underwent 106 amendments when it reached the European
Parliament. Europe is now contemplating a two track system for processing
asylum claims: a normal procedure and an accelerated procedure.
In every case, the applicant would be entitled to remain on the
territory of the Member State until the primary decision maker has
made a decision to grant or refuse protection. If the applicant
were being put through the accelerated procedure, there would usually
not be any right to remain in the country while the appeal was heard
and determined. For example, if the claim related to alleged persecution
in a country that was listed as a safe third country, the applicant
would have no right to remain. The accelerated procedure would be
available to Member States not only in the usual types of case when
it is asserted that the claim is manifestly unfounded. It would
also be available in those frequent cases when "there are serious
reasons for considering" that the applicant has "in bad
faith, destroyed or disposed of an identity or travel document that
would have helped establish his/her identity". What would constitute
bad faith in these circumstances? Often the people smuggler has
ordered the destruction of documents. On other occasions people
just think they will be maximising their chances of asylum by destroying
documentation, especially if some of the documentation is forged.
Is that bad faith?
Consistent with the directive on reception of asylum applicants,
this proposed directive on procedures for granting refugee status
reaffirms that Member States shall not hold applicants in detention
for the sole reason that the application needs to be examined before
a decision is taken. There are only two circumstances in which a
Member State may hold an applicant in detention during the processing
of the claim. The first is the Oakington type situation, when it
is "objectively necessary for an efficient examination of the
application. The second is when in the particular case there is
a strong likelihood of the applicant absconding. The assessment
must be made "on the basis of the personal conduct of the applicant".
The EU knows that this attempted harmonisation of the procedure
for granting refugee status is fraught with difficulty. The Commission
proposes that the directive be reviewed every two years.
Earlier this year, a coalition of the willing including the UK,
Netherlands and Denmark put forward their idea "to achieve
better management of the asylum process globally through improved
regional management and transit processing centres". Without
net migration programs and with porous land borders (including the
Chunnel) several European states have been worried that their asylum
processes are being clogged by unmeritorious claimants who need
to be diverted to another course so that onshore asylum processes
and appeals can be more readily available for bona fide asylum seekers.
The Blair proposal envisaged transit processing centres "on
transit routes into the EU". Being outside the EU and managed
by IOM, the centres could be provided with "a screening system
approved by the UNHCR". It was a great shock to learn of Tony
Blair's claim that "IOM and UNHCR have expressed an interest
in working up these ideas". UNHCR then responded with its three
prong proposal under the Convention Plus agenda.
UNHCR has proposed EU-based processing centres for those asylum
seekers coming from countries least likely to produce refugees.
UNHCR justifies its proposal on the basis that most of the claimants
will be economic migrants making manifestly unfounded claims. In
this instance, UNHCR is even prepared to countenance detention.
"First instance decisions should be taken promptly, and appeals
could be handled in the form of simplified reviews." Most cases
would be concluded within a month. UNHCR would "monitor decision-making
and be prepared to consider participating in a review board".
In the light of the protracted European negotiations on this part
of the harmonisation exercise, one can have sympathy for those governments
which are concerned by the burgeoning lists of court appeals from
failed onshore asylum seekers. Something needs to be done to reduce
the consumption of precious court resources and the drain on the
treasury coffers especially when most appeals do not result in a
reversal of the finding about refugee status. Even in the small
percentage of appeals that succeed, it is usually the case that
the primary decision maker or administrative tribunal is asked to
review the matter again but this time according to the law set down
by the court. This does not usually result in a change to the final
decision. The draft European directive provides much latitude for
Member States to experiment with different appeals mechanisms before
the European directive is passed.
The Canadians overhauled their onshore asylum processing system
with the passage of the Immigration and Refugee Protection Act which
came into operation last year. Whereas previously, asylum applications
were decided by a two member panel which granted asylum if only
one of the members was so minded, the decisions are now made by
a single member of the Refugee Protection Division of the Immigration
and Refugee Board. The legislation does provide for an appeal to
the Refugee Appeal Division of the IRB "without a hearing,
on the basis of the record of proceedings of the Refugee protection
Division". The Appeal Division would be able to consider written
submissions from the applicant, government, and the UNHCR. The only
problem is that more than one year on, the government is yet to
set up the Refugee Appeal Division. Denis Coderre, Minister of Citizenship
and Immigration told the House of Commons, on June 6, 2002: “I
have already made a commitment to the Canadian Council for Refugees
that we will have an appeal system in place in one year’s
time.” The appeal system has still not been instituted. Refugee
advocates are understandably upset that there is no appeal process
for onshore asylum claims in Canada.
4. United States
In the US, there are now few advantages in applying for asylum
unless you are a refugee. So now there are high approval rates -
40% in the first instance and 40% of those who fail then get up
on the appeal. The 1996 US reforms have worked, in part because
the government had a highly consultative process with trusted immigration
lawyers and advocates involved in the lead up to the reforms. The
outstanding 300,000 claims went to the bottom of the pile so that
there could be prompt processing of new claims within the 6 months
after which an applicant is entitled to work. There is now no advantage
in spurious claimants making themselves known to government. They
get no public benefits and no work rights.
Affirmative asylum applications follow when the person presents
voluntarily claiming asylum. In the first instance, assessment is
made by the Asylum Office in Department of Homeland Security. If
refused, they are referred to one of the 200 Immigration Judges
in the Executive office for Immigration Review (Department of Justice).
They can then appeal to the board of Immigration Appeals (BIA).
The members of this bench also serve at the pleasure of the Attorney-General,
being a creation of regulation only. There is a BIA backlog of cases.
The rest of system is working well in that an onshore asylum seeker
will have decisions from the asylum officer and the immigration
judge within six months.
The BIA was expanded in mid 90's. Under President Clinton, it was
expanded to 19 members with the addition of some members from outside
the INS. In the past, the BIA could review de novo questions of
law, discretion and judgment. The BIA was able to review the Immigration
Judge's findings of fact, including findings of credibility, to
determine whether the findings were clearly erroneous. Attorney-General
Ashcroft has now taken away the BIA's de novo review power and so
it is powerless to buy into credibility issues. The BIA has been
told to clear its backlog in 6 months. Ashcroft sacked the more
liberal members so the bench is now down form 19 to 12 members.
Usually the BIA sits a panel of 3 but members can sit individually.
The BIA will sit en banc if it is to make a precedential decision.
In all first world countries, there is a major problem with failed
asylum seekers pursuing every available appeal avenue if only to
delay their removal from the country. Decision makers and administrative
tribunals cannot be kept accountable unless the lawfulness of their
decisions is reviewable by the courts. In Europe it is now common
to permit the removal of a failed asylum seeker while their appeals
to the higher courts are processed.
Here in Australia, the ALP published its alternative policy in
December 2002. Labor says it will replace with the RRT with a three-person
refugee Status Determination Tribunal "with one legally qualified
member and two members drawn from the community". Julia Gillard
and Simon Crean announced:
Appeals under Labor's streamlined processing system will be strictly
limited to one appeal by leave on points of law. There will only
be one appeal from the RSDT decision and that would be to the
Federal Magistrates Service in relation to errors of law by leave.
Leave to hear the appeal will only be granted if, in the opinion
of the Court, the asylum seeker has done everything reasonably
in his/her power to prepare for removal if the appeal is unsuccessful.
An asylum seeker will only be able to appeal a negative Tribunal
decision if he or she has fully co-operated and is ready to be
removed from Australia if the appeal fails.
Asylum seekers found not to be refugees will be quickly sent
A Labor Government will also introduce new rules designed to
discourage lawyers and migration agents acting on a fee or reward
basis from encouraging applicants to make frivolous appeals. Asylum
seekers on the mainland will also have case workers.
Refugee claims which are manifestly unfounded will be placed
on a special expedited decision making track by the Tribunal and
disposed of quickly.
Judicial review of migration decisions is here to stay in Australia
unless the major political parties were successfully to propose
a constitutional referendum taking away the High Court's inalienable
jurisdiction to supervise the lawfulness of the actions of Commonwealth
public servants and tribunals. That is not very likely. For over
a decade, politicians like Philip Ruddock have thought their problems
would be solved if they could convince Parliament to pass a privative
clause excluding court review of refugee decisions. This has proved
a dead end.
Politicians on both sides of the Parliament need to accept the
constitutional guarantee of access to the courts for failed asylum
seekers. With this access, the courts must ensure that the decision
maker acts in good faith, with fairness and detachment, being satisfied
that the detailed criteria for a visa are fulfilled, those criteria
having been properly construed and fully considered. Our politicians
are right to insist on Parliament's capacity to ensure that not
every minor point is appealed to the courts. Now that Tampa has
passed, the government needs to respect the constitutional limits
set by the High Court and the political constraints which the Senate
will rightly apply to any new law limiting appeals.
With the establishment of a Federal Magistrates' Court, much of
the review of the RRT could now be transferred from the overtaxed
Federal Court. There ought to be an automatic right of appeal on
points of law to the Magistrates' Court. There should then be an
appeal to the Federal Court but only with leave being granted by
a single judge of the Federal Court. The Americans have long lived
with a detailed system of court appeals. In the US, a failed asylum
seeker will have his case referred to an Immigration Judge. If the
judge also refuses to grant asylum, there is an automatic appeal
to the Board of Immigration Appeals. If there are complex questions
of law, the case can then be heard by one of the 13 Federal Circuit
Court of Appeals.
The Australian technique of the last decade attempting to remove
all administrative discretions, to codify with increasing complexity
the criteria for the grant of a visa, and to remove the courts from
the role of supervision has failed. The RRT should be better resourced
with country information which is known to be reliable because it
is provided by sources which are credible and mandated to provide
objective, up to date information. There should be an automatic
right to appeal questions of law to the Federal Magistrates' Court.
There should be no further appeals allowed except with leave of
the court. The government could be given the option of applying
to the court that any further appeal proceed only once the applicant
has been removed from Australia. With proper court supervision,
we could then avoid the prospect that complex appeal points are
formulated by lawyers only to assist the applicant to remain longer
in the country when there is little prospect that a protection visa
will be granted at the end of the judicial and administrative process.
If failed asylum seekers unable to return to their country are
held in endless detention, there must be regular review of their
detention by the courts. Without a bill of rights, our judges have
been unable to restrict the law on endless detention, as has the
US Supreme Court. A federal magistrate should be commissioned to
conduct regular hearings about the ongoing detention of asylum seekers
who cannot be removed from Australia. If there is no reasonable
prospect of their removal within a reasonable period of time and
if they are not a flight risk or security risk, they should be released
into the community on bail awaiting notification of their renewed
detention prior to their immediate removal from Australia.
When the government was trying to exclude all judicial review of
refugee decisions back in January 1999, Dr Nygh the principal member
of the RRT presented the Senate committee with compelling statistics.
At that time the RRT had decided 26,401 cases since it commenced
in 1993. There were 1,837 Federal Court appeals. In only 276 cases
had the RRT decision been set aside. But even in those cases, the
court only had the power to send the matter back to the tribunal
for a new decision in conformity with the law stated by the court.
In only 48 cases did the RRT finally reverse its decision with the
result that the asylum seeker was then granted a protection visa.
According to him, there was a difference in the ultimate decision
in only 0.2% of the cases. But this set of figures does nothing
to discount the fact that a tribunal subject to judicial review
is likely to produce results which are fairer to the applicants
and more consistent with the law than a tribunal which is free to
make decisions without court oversight once they have been appointed
on their short term contracts by the government of the day which
then conducts quality control assessments of the tribunal members'
We could all breathe more easily with the cost effectiveness of
removing the courts from supervision of the correctness of these
decisions if we could be more convinced of the professionalism and
independence of the primary decision makers and of the competence
and security of the RRT members. When 18.2% of RRT decisions appealed
to the Federal Court have been set aside in a year, there are good
grounds for concern when the Parliament attempts to limit judicial
review of RRT decisions. Justice McHugh, hardly an expansionist
High Court judge, told the Australian Bar Association Conference
in July 2002:
Even if 30 percent of applicants have commenced proceedings "as
a means of prolonging their stay in Australia", it seems
a small price for a just and prosperous country to pay for maintaining
the rule of law.
The frustration of the Executive as the result of applicants
abusing the judicial review system is understandable. But Parliament
and the Executive should never forget the statement of Sir William
Wade, the doyen of administrative lawyers, that "to exempt
a public authority from the jurisdiction of the courts of law
is, to that extent, to grant dictatorial power". Review of
a public servant's decision by an administrative tribunal, whose
members do not have the same security of tenure and independence
as judges, is no substitute for review by a court. In principle,
even a national emergency should not be a sufficient basis for
refusing to permit the courts to examine the legality of the conduct
of the Executive Government.
Under the separation of powers doctrine, the principal function
of the judiciary is to uphold the rule of law. It is a corollary
of that doctrine that the judiciary cannot be deterred from exercising
that function by criticisms of the Executive branch even if the
Executive's criticisms have the support of the general public.
The Judiciary has to apply the law, not public opinion.
Overseas experience demonstrates that all governments are anxious
to limit the judicial review of sensitive migration decisions. A
workable system requires consideration of a vast array of factors,
allowing the appeals system to be unclogged with unmeritorious claimants
wanting to delay their removal, while granting access to meritorious
claimants and permitting sufficient use of appeals to ensure that
public servants and tribunal members behind closed doors know that
there is some chance that their actions and reasons will be exposed
to daylight by the application of the judicial process.
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