The only persons who may grant an applicant a protection visa are
the case officer delegated with the Minister's authority, the Refugee
Review Tribunal or the Minister. Judicial officers such as Federal
and High Court judges do not have the authority to grant protection
visas.
-
Immigration officials are not required to tell people that
they have a right to claim refugee status. People without a
visa are detained and generally kept separate from other detainees
as part of a screening process.
DIMIA Interview/Screening Process
-
People arriving in Australia without a visa are interviewed
by DIMIA officers without being provided with independent legal
advice.
-
Only people who tell a story that fits within the legal definition
of a refugee will be allowed to apply for refugee status.
-
These people are not told anything about the purpose of the
interview or the determination process and may not appreciate
the significance of what they say in their interview with DIMIA
officers.
-
There is a general obligation that a person who is responsible
for another person's immigration detention must (at the request
of that other person) give that person application forms for
a visa or afford that person all reasonable facilities for obtaining
legal advice or taking legal proceedings.
-
There is, however, no obligation to afford persons in detention
these facilities unless the person requests the facilities.
-
Additional restrictions are imposed in certain circumstances,
including on persons who are detained after being prevented
from leaving a vessel under section 249 of the Migration Act
or who entered Australia after 30 August 1994 and has not been
immigration cleared since last entering Australia. For people
in these circumstances, other than as provided in paragraph
5 above, nothing requires the Minister or officer to give the
person an application form for a visa, advise the person whether
they may apply for a visa, give a person an opportunity to apply
for a visa or allow the person to access advice in connection
with an application for a visa.
Application Form
-
The Migration Act 1958 and the Migration Regulations
1994 provide the sole legal authority for the grant of a
visa to non-citizens.
-
Section 499 of the Migration Act permits the Minister to formulate
written directions in respect of the performance or exercise
of its functions under the Act. The directions must not be inconsistent
with the Migration Act or the Migration Regulations and a person
to whom they are directed must comply with them. DIMIA also
produces a Procedures Advice Manual (several volumes) and Migration
Services Instructions.
-
Only persons who satisfy the minimum criteria set out in the
Migration Act 1958 and the Migration Regulations 1994
(Cth) may apply for a visa. The minimum criteria for a temporary
protection visa (subclass 785) is as follows:
-
The applicant claims to be a person to whom Australia has protection
obligations under the Refugee Convention; and
-
Makes specific claims under the Refugee Convention or is a
member of the same family unit as a person who has made such
a claim and that family member is an applicant for a protection
(class XA) visa.
-
Decisions to grant a visa can only be made if the Minister
is satisfied that the prescribed criteria have been met and
factors preventing the grant do not exist. Therefore, the decision
makers have no discretion to grant a visa if the prescribed
criteria are not met.
-
Applicants that apply in Australia must apply for protection
visas by completing a standard DIMIA application form.
-
The application for a temporary protection visa must be made
within 28 days from the date the applicant arrives in Australia.
-
The form must be completed in English and must demonstrate
that the individual meets the international definition of a
refugee in the Refugee Convention facilities.
-
Once a person is admitted into this application process, that
person is given access to government funded legal assistance.
Initial Assessment
-
A case officer from DIMIA, who has the delegated authority
of the Minister, assesses the written application and decides
whether the applicant meets the definition of a refugee under
the Refugee Convention.
-
If the case officer requires further information/clarification,
the officer may interview the applicant and seek further information
about the situation in the applicant's home country from sources
such as the Department of Foreign Affairs, other governments
and human rights groups.
-
As a result of recent cost cuttings, applicants may no longer
be interviewed. This means that their application will be determined
on the basis of their written application alone.
-
Questions have been raised about the quality of information
obtained by case officers about an applicant's home country
and the fact that more weight may be given to this information
than the applicant's story.
-
Applicants have the right to respond to any adverse information
that affects their case.
-
Migration agents can make written submissions on behalf of
the applicant.
-
If the applicant meets the definition of a refugee and meets
the public interest requirements and other requirements applicable
to the particular visa application, the case officer will grant
the applicant a protection visa. Otherwise, the applicant will
be refused protection.
-
The public interest requirements are:
-
The applicant is of 'good character';
-
The applicant is not a direct or indirect risk to Australian
national security;
-
The applicant is not a person who would prejudice the relationship
between Australia and a foreign country; and
-
The Minister is satisfied that the grant of the visa is in
the public interest.
-
Case officers are now allowed to require asylum seekers to
swear or affirm a fact is true. Failure to comply can be used
at any stage of the process to make an adverse finding about
the credibility of the applicant.
-
Section 91V of the Migration Act allows a case officer to draw
adverse inferences if the officer "has reason to believe"
that the claimant is "not sincere" in making a statement.
-
Section 91W of the Migration Act allows a case officer to draw
adverse inferences about the credibility of applicants who refuse
or who are unable to produce documentary evidence of their identity,
nationality or citizenship.
Appealing an Adverse Decision
-
An applicant that is refused protection may challenge the factual
basis of the case officer's decision. This appeal is generally
to the Refugee Review Tribunal ("RRT") but, in special cases,
is to the Administrative Appeals Tribunal ("AAT").
-
The RRT is inquisitorial in nature not adversarial.
-
The RRT is not a court of law and the members rely on the Minister
for their reappointment. It has been suggested by the Law Council
that for this reason decisions made by the RRT may be more open
to Government pressure than decisions made by the courts.
-
Appeals to the RRT must be made within 28 days from the decision
to reject the application.
-
Applicants also have limited rights to appeal to the Federal
Court and the High Court.
-
The Minister may block an applicant from appealing an adverse
decision if the Minister believes it is in national interest
to do so.
Refugee Review Tribunal
-
A single member of the RRT reviews the merits of the decision
of the case officer. For the purposes of the review, the Tribunal
may exercise all powers and discretion conferred by the Migration
Act on the Minister or case officer that made the original decision.
The RRT is not a court.
-
The RRT examines whether the applicant meets the definition
of a refugee and is not required to assess the reasons given
by the case officer.
-
The RRT makes findings on the basis of the facts and is required
to interpret and apply Australian legislation and international
law.
-
Initially the review is on the written documents. However,
if the RRT is not able to make a favourable decision on the
basis of the written documents, it must give the applicant an
opportunity to be heard in person.
-
The applicant must appear in person and has no right to be
represented by a lawyer at the hearing but lawyers may be present
at the hearing as observers.
-
If the RRT believes that the case officer's decision was wrong
based on the facts, it may overturn the case officer's decision
and grant a protection visa to the applicant.
-
The RRT may also uphold the case officer's decision. In this
case, the applicant must pay a fee of A$1,000 and leave Australia
within 28 days.
-
The RRT, in carrying out its functions, is to pursue the objective
of providing a mechanism of review that is fair, just, economical,
informal and quick.
-
The Tribunal in reviewing a decision is not bound by technicalities,
legal forms or rules of evidence. However, it must act accordingly
to substantial justice and the merits of the case.
-
The Principal Member of the Tribunal may, in writing, give
directions not inconsistent with the Migration Act or the regulations
as to the operation of the Tribunal or the conduct of reviews
by the Tribunal. The Tribunal should comply with the directions
as far as practicable.
-
The Tribunal must give the applicant particulars of the information
that the Tribunal considers would be the reason or part of the
reason for affirming the decision and ensure, as far as reasonably
practicable, the applicant understands why the information is
relevant to the review.
-
The hearing must be in private.
-
The Tribunal must prepare a written statement setting out the
decision, the reasons for the decision, findings on material
questions of fact and refer to evidence or other material on
which the findings of fact were based.
AAT Review
-
The AAT has jurisdiction to review certain decisions of the
Department, including the refusal to grant a protection visa
or to cancel a protection visa relying on Articles 1F, 32 or
33 of the Refugee Convention and the refusal to grant, or to
cancel, a visa on the basis that the non-citizen does not satisfy
the case officer that the person passes the character test.
Review of Decisions by the Courts
-
In limited circumstances, an applicant whose application for
protection is rejected may appeal to the Federal Court or High
Court.
-
An applicant may appeal to the Federal Court if they believe
that the case officer or the RRT has made a serious error of
law. There is no right of appeal of the Federal Court's decision
to the High Court - special leave to appeal must first be granted
by the High Court.
-
While the RRT may review all of the facts of a case and grant
a protection visa, the Federal Court can only review questions
of law and refer the matter back to the RRT for reassessment.
The Federal Court cannot grant a protection visa. The Federal
Court can only uphold an earlier refusal to grant a protection
visa or direct that an application be reassessed by the RRT.
-
Legislation was introduced in 1994 that restricted the ability
of the Federal Court to challenge unlawful migration decisions.
-
The changes removed the ability of the Federal Court to intervene
even if a decision of the RRT:
-
Breached the common law rules of natural justice;
-
Was so unreasonable that it could not have been made by a reasonable
person;
-
Was made in bad faith;
-
Appeared to be biased;
-
Was made taking irrelevant considerations into account or without
taking relevant considerations into account;
-
Constituted an abuse of power.
-
Until September 2001, applicants could still appeal to the
High Court to intervene as the High Court has constitutional
powers to review administrative decisions such as those made
by the RRT. The constitutional powers conferred on the High
Court cannot be taken away by legislation.
-
In September 2001, the Federal Government enacted legislation
that repealed the 1994 legislation. The 2001 legislation provides
that a "privative clause" decision:
-
Is final and conclusive;
-
Must not be challenged, appealed against, reviewed, quashed
or called into question in any court; and
-
Is not subject to prohibition, mandamus, injunction, declaration
or certiorari in any court on any account - these are the regular
administrative law remedies available at common law.
-
The effect of the privative clause is that the Federal Court
and High Court can only overturn the Tribunal's decision in
the following very limited circumstances:
-
The Tribunal did not act in good faith when making the decision;
-
The decision is not reasonably capable of reference to the
decision-making power given to the Tribunal;
-
The decision does not relate to the subject matter of the legislation
- i.e. it is beyond the scope of the legislation; or
-
The decision exceeded the limits in the Commonwealth Constitution.
-
Section 474(2) of the Migration Act defines a privative clause
decision as an administrative decision made under the Migration
Act or regulations. Most decisions about refugee protection
visas fall within this definition. The legality of this clause
is the subject of an appeal that has been heard by the High
Court. A decision is expected before February 2003.
-
Despite the limitations imposed on the Courts by the 2001 legislation,
the High Court retains the power to hear appeals in the following
circumstances:
-
appeals on the legality of actions taken by officers of the
Commonwealth - section 75(v) of the Constitution. This would
include RRT and the Minister;
-
appeals where an issue involves an international treaty to
which Australia is a party - section 75(i) of the Constitution.
-
The courts have generally accepted privative clauses despite
challenges that they represent an attempt to oust the jurisdiction
of the courts on the basis that they simply expand the jurisdiction
of the decision maker so deem legal any decision made
by the decision maker.
-
Commentators have suggested that for asylum seekers, the privative
clause legislation means that provided a decision maker applies
the Migration Act strictly, it will be difficult for a court
to overturn a decision on the basis it is unlawful. This ultimately
depends on how the courts interpret the Migration Act.
-
Decisions made by case officers cannot be reviewed by the Federal
Court. Therefore, an applicant whose application is rejected
must appeal to the RRT within the 28 day appeal period. Otherwise,
the applicant will lose its right to appeal to the Federal Court
but may still be able to appeal to the High Court.
-
The right to judicial review of administrative decisions is
considered internationally to be a human right and the right
of equal access to courts is recognised specifically in the
Refugee Convention and other international treaties.
-
The Law Council of Australia has argued that judicial review
of refugee decisions is essential because:
-
It encourages consistent decisions and ensures the correct
interpretation of the law;
-
There is an ongoing need for interpretation of migration laws
to keep place with changing international circumstances;
-
The rights of applicants in tribunals are severely restricted
since there is no right to legal representation or to call witnesses
or cross-examine witnesses; and
-
It encourages the independence of tribunals and helps prevent
a negative culture of rejection of asylum seekers from developing.
