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The limits of judicial review in migration decisions – an international perspective

Frank Brennan SJ AO

Migration Institute of Australia
Victoria State Conference
Grand Hyatt, Melbourne
12 November 2003

A. INTRODUCTION

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 Australia.

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 country.

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 said:

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 problem:

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 been completed.

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 decision making.

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:

  2000-2001 2001-2002 2002-2003
Afghanistan 69% (160/232) 62% 32%
Iraq 81.9% (461/563) 87% 52%
Other Groups 9.9% (327/6171) 7.9% 5.3%
Detention 35.7% 44% (377/855) 19.9% (47/236)
Community 5.9% 6.6% 5.2%
Lebanon 13.7% 4% 10.6%
Iran 40.7% 24% 31%

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 the appeal.

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 funding.

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 V.A.T).

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 officers.

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 stated:

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 seekers:
  • 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.

3. Canada

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.

C. CONCLUSION

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 back.

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' decisions.

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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