AustLII Home | Databases | WorldLII | Search | Feedback

Australian Law Reform Commission - Reform Journal

You are here:  AustLII >> Databases >> Australian Law Reform Commission - Reform Journal >> 1999 >> [1999] ALRCRefJl 23

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Editors --- "A Tough Call: Making Immigration Decisions" [1999] ALRCRefJl 23; (1999) 75 Australian Law Reform Commission Reform Journal 24


Reform Issue 75 Spring 1999

This article appeared on pages 24 – 26 & 69 of the original journal.

A tough call: making immigration decisions

By Gabriel Fleming*

Making migration decisions is a tough business. Apart from a knowledge of the law and legal process, it requires ongoing humility and compassion.

Humility in the recognition that you, as the decision maker, enjoy enormous privilege in security of place, familiarity with our legal institutions and the ability to communicate easily and fluently in the dominant language, English. Compassion in the face of despair, fear, and the social disadvantage and family dislocation, which so often attends the process of migration. A migration decision maker must be able to listen, empathise and communicate respectfully with persons whose entire future, and that of their families, may be in his or her control.

As a Member of the Immigration Review Tribunal (IRT) for five years I made many migration decisions. The Immigration Review Tribunal has now been replaced by the Migration Review Tribunal (the MRT). The MRT provides merits review of certain migration decisions made under the Migration Act 1958 (Cth) (the Act), which have been refused by the Department of Immigration and Multicultural Affairs. Cases before the MRT include applications to sponsor a spouse, a child, an elderly relative, a carer for a person with a special need, or a business or employee with particular skills. The Tribunal deals with the cancellation of visas and with the refusal to grant a visa to a person who is being held in immigration detention. All cases concern the application of specific criteria, which are set out in the Act and the Migration Regulations (the Regulations). The Act contains a code of procedure, which sets out the steps that must be taken by the Tribunal before coming to a decision in each case.

The benefits of tribunal, as opposed to court, review are many. They include a cheaper and speedier resolution of the case with as little formality as possible. The Tribunal does not rely on the presence of the department, as an adversary, to challenge the applicant and to defend the original decision. It can make its own inquiries, decide what witnesses to hear from and make a decision according to ‘substantial justice and the merits of the case’. The objective of the Tribunal is to make decisions in a way that is ‘fair, just, informal, economical and quick’. However, these objectives may sometimes present contradictions for decision makers. Fairness and justice in the instant case may mean that certain inquiries or investigations should be made by the Tribunal itself. The Tribunal may have to rely on the opinion of a third party, for example the Commonwealth Medical Officer or the National Office of Overseas Skills Recognition, for an assessment of one aspect of the regulatory criteria. These may take some time and sometimes difficult choices need to be about the extent of further inquiry which a particular case requires.

Informality, in the context of Tribunal proceedings that are determinative of important rights and entitlements, is also a complicated matter. The Tribunal needs to keep proceedings at a level where the applicant understands what is taking place and where the atmosphere is conducive to ‘telling the story’ that has to be told. At the same time informality must not lead to the situation where the proceedings appear unimportant or wander at length into matters of no relevance to the application. In the MRT the member has a complex role in that she or he must both elicit the evidence and then test the veracity of that evidence while not appearing to the applicant to be biased. Ultimately the challenge to the Tribunal decision maker is to find balance in the statutory objectives in a way which delivers timely, just and well reasoned decisions with a process that treats applicants with dignity and respect.

Differing difficulties

All decisions require careful thought and consideration and yet all are different in the difficulties they may present. Discussed below are three kinds of cases I have dealt with that highlight different issues for a decision maker. They are, firstly, cases where an Australian citizen or permanent resident has sponsored their spouse to migrate, secondly where a person is being held in a detention centre and is seeking a visa for their release, and finally cases where the Tribunal has no discretion to overturn the original decision that has been made.

There are often stories in the popular press of how loving couples have been forcibly parted due to difficulties with immigration ‘red tape’. Almost as often there are articles which speak of ‘sham marriages’ or ‘marriages of convenience’ which are designed to circumvent migration laws in order to obtain a permanent visa. In cases where the application for a spouse visa has been refused the primary issue is generally whether the husband and wife are in a genuine and continuing marital relationship. How does a Tribunal determine this? The nature of marriage is a highly subjective, culturally bound and complex issue. The Tribunal considers evidence of shared domestic arrangements, recognition of family and friends, shared financial affairs, the existence of any children of the relationship, whether the couple have a sexual relationship and the exclusivity of that. Often the couple will each present a very different view of the relationship. The time taken in processing of the application may mean that they have not seen each other for months, or in some cases years. Telephone contact and travel overseas may be have been difficult and is expensive. Men and women may view the relationship differently, varying aspects may be important to them; others may be forgotten or remembered differently. Women may not feel able to discuss aspects of the relationship because of prohibitive culture mores. There may be an element of ‘convenience’ in a marriage which, at the same time, does not detract from the genuine commitment to it of the parties involved. Ultimately none of these factors may reflect on whether either party is telling the Tribunal the truth about the relationship.

It is possible for the Tribunal to be made up of more than one member and in cases involving applications for a spouse visa there is clearly a benefit in having a gender mix on the panel. The Tribunal has a difficult task in determining the genuineness of a relationship. Added to these difficulties is the fact that usually the spouse who is seeking to migrate is still living overseas. Evidence is taken by telephone; both from the applicant and from his or her family who are supporting the marriage. Often the parties are distressed and this, as well as the need to have telephone evidence interpreted, makes the taking of evidence by telephone difficult.

Applications for a ‘bridging visa’ come before the MRT where the applicant is in detention. Often the applicant is a person who has been in Australia for many months or years and has previously lodged an application for permanent residence that has been refused. A bridging visa allows a person who does not hold any other visa to remain in Australia, in the community, either while they make adequate arrangements to depart or pursue further applications with the department, a tribunal or the courts. It is important that where a person is deprived of their liberty the Tribunal decides the matter as quickly as possible. However this also places pressures on the decision maker to hear, consider and reason a decision quickly. The Tribunal has only seven working days in which to decide bridging visa cases where the applicant is in detention. In this time an oral hearing may be needed. The applicant needs adequate notice, support witnesses need to be called and practical issues such as arrangements to transport the applicant from the detention centre under guard to the Tribunal must be organised. After the hearing there may be matters which the applicant needs to attend to before the visa is granted - the lodging of a bond, for example, or the purchase and production to the Tribunal of an airline ticket. The fact that the person is in detention and frequently has few community contacts, no family in Australia and poor English all add to their difficulty in attending to these matters quickly. As a decision maker, one needs to take care before finding that an applicant cannot comply with conditions of release rather than has not had the time or resources to enable them to comply.

There are other matters before the MRT where it has no discretion to change the original decision, for example where the application is out of time or statute barred. These matters are difficult both for the applicant and the Tribunal. Often the applicant will come to the Tribunal with false hope as to their chances of success. They may bring witnesses and family members who want to give evidence. It is hard for an applicant to understand why a right of review exists where the Tribunal can effectively do nothing. These matters are a reminder that the Tribunal has an important role in helping the applicant understand the decision that has been made, the reasons for it, further avenues of appeal and the decision’s ramifications (usually that the applicant must make plans to leave Australia). Often an applicant has not previously spoken to anyone in authority about their application, it may all have been processed on the papers presented.

On the papers

In my experience as a member of the IRT, the process of the review of migration decisions demands that you be highly organised and always alert to fresh evidence which may be presented. When a case is first constituted to you as a member you receive a full copy of the Department of Immigration and Multicultural Affairs file in relation to the applicant. This contains copies of the original application, previous decisions and departmental notes and computer generated records. The file often presents a one sided view of the application containing little evidence from the applicant to address matters of concern which go to their ability to meet the regulatory criteria. The Act provides that the Tribunal may make a decision ‘on the papers’ where, inter alia, a positive decision can be made. It is thus extremely important to review the file carefully, to be alert to obvious errors of law or findings of fact that may be manifestly unreasonable or unfair. In some cases the applicant has presented better documentary evidence in the time between the decision and the appeal to the Tribunal. This evidence must be carefully considered. In some cases the reason the application has failed is clearly because he or she is unaware of what evidence is needed to meet the regulatory criteria for the grant of the visa, rather than the fact that they are unable to meet the criteria or that their evidence to support the application has been disbelieved by the primary decision maker. The review ‘on the papers’ and the ability to call the applicant to an interview prior to a formal hearing are both significant steps in the decision making process. At either point, a decision may be made in the applicant’s favour, which is clearly of benefit to the applicant. It is also of benefit to the Tribunal because it alleviates the need for an oral hearing, thus freeing time and resources for other matters.

As I said at the outset, migration decision making is a tough business. What then makes a good migration decision maker? Those same qualities that attend all decision making tasks – and more. An understanding of administrative law and the processes of government administration, the ability to analyse and interpret difficult legislation, the ability to exercise good judgment and think independently and the capacity to manage a large, diverse and demanding work load. But there are aspects of migration decision making that are also unique.

It is important to keep alert to the seriousness of the task. To the ramifications for the individual and their families and the special difficulties which language and cultural dislocation can afford. To the fact that for many migrants their experience of the legal system is overwhelmingly negative and in some cases frightening. In my experience these issues present Tribunal members with a difficult yet, at times, extremely rewarding, task.

* Gabriel Fleming is currently completing a PhD thesis on ‘Rights and Values in Administrative Review’ at the University of Sydney. She is a part-time Judicial Member of the NSW Administrative Decisions Tribunal, a Member of the NSW Residential Tribunal and has recently been appointed as Senior Member of the NSW Fair Trading Tribunal.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/1999/23.html