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Australian Law Reform Commission - Reform Journal |
Reform Issue 75 Spring 1999
This article appeared on pages 27 – 32 of the original journal.
The Refugee Review Tribunal: a personal view
By Craig Colborne*
The adversarial system of justice is commonly criticised for its costs, delays and perceived emphasis on technicalities rather than establishing the truth.
The Refugee Review Tribunal (the RRT) is an Australian tribunal based on the inquisitorial model. The RRT member who decides an application often plays a major role in obtaining the information on which his or her decision turns. Applicants to the RRT have no right to be represented at the hearing, to call witnesses or to examine or cross-examine witnesses.
An inquisitorial tribunal with procedures that strike a fair balance between the interests of the state and those of applicants may have advantages in some Australian jurisdictions. RRT procedures, however, can at times be unfair or inhibit the RRT’s ability to arrive at the correct or preferable decision.1
The RRT commenced operations on July 1, 1993. It had a Principal Member, a Deputy Principal Member and the equivalent of 30 full-time members. In September 1993, the RRT doubled in size. Additional full and part-time members were appointed to address the backlog of cases the RRT inherited from the Refugee Status Review Committee. I was one of the full-time members appointed in the second round of appointments. I remained a member until September 1996. Since then, I have reviewed numerous RRT files and transcripts in my practice as a barrister.
The statutory provisions dealing with the RRT’s jurisdiction, membership and procedure are set out in Part 7 of the Migration Act 1958 (Cth). Unless otherwise stated, the sections I refer to are sections of that Act.
The RRT has a narrow jurisdiction. It and the Administrative Appeals Tribunal (AAT) provide the only merits review of decisions to refuse or cancel a protection visa. Delegates of the Minister for Immigration and Multicultural Affairs make these decisions. The AAT’s jurisdiction is confined to reviewing refusals or cancellations based on an applicant’s criminal conduct or on national security or public order grounds (s 500(1)(c)). The RRT has jurisdiction to review a refusal or cancellation on any other ground (s 411).2
The RRT’s decisions are subject to review by the Federal Court on the limited grounds specified in s 476 and by the High Court in its original jurisdiction under s 75(v) of the Constitution.
The principal criterion for a protection visa is that the applicant is a person to whom Australia has protection obligations under the United Nations’ Convention Relating to the Status of Refugees, as varied by its Protocol Relating to the Status of Refugees (s 36). Most applications turn on whether the applicant is a refugee, as defined in the Protocol. A refugee is any person who:
“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Most countries are signatories or parties to the Convention and Protocol.3 This has produced significant international jurisprudence on the interpretation of these treaties. The RRT and the Federal and High Courts often have regard to this jurisprudence, particularly that from other English speaking countries.
An applicant’s case has to be assessed against their country of nationality or former habitual residence. This calls for a good understanding of that country’s institutions, recent political history and human rights. Applicants come from dozens of countries. This has led the department to establish an electronic database of information about refugee issues that commonly arise in specific countries.
The Department’s File
When an application for review is lodged with the RRT, the Secretary of the Department of Immigration and Multicultural Affairs is required to give the registrar every document in the department’s control or possession that the Secretary considers relevant to the review (s 418). The department purports to meet this obligation by giving the RRT its file on the applicant and by providing the RRT with access to the electronic databases used by delegates.
The department’s Country Information Service maintains an electronic database of country information. This includes reports by academics, human rights organisations, Australian and foreign newspapers and journals, United Nations rapporteurs, the Australian Department of Foreign Affairs, the United States Department of State and the United Nations High Commissioner for Refugees. The department also has access to the electronic database maintained by the Research Directorate of the Immigration and Refugee Board of Canada.4 Unlike the Canadian database, the department’s database is not readily accessible to the public.
The department’s file contains the protection visa application, supporting statements and submissions, the correspondence relating to any specific investigations initiated by the department and a copy of the delegate’s decision and reasons. Delegates list in their reasons the various documents they have taken into consideration. The list can include 10 or 20 documents from the electronic databases. It is rare to see a departmental file that contains a copy of these documents or shows that the applicant has been give a copy of them.
The RRT has access to the Australian and Canadian electronic databases. The theory being that the RRT can access the database documents cited by a delegate. In practice this is seldom done. The documents relied on by the delegate are often dated and of little relevance, particularly with backlog cases. The RRT also often takes a different view of the issues. This can lead to the anomalous situation where the RRT review is conducted in ignorance of the contents of the documents relied on by the primary decision maker.
RRT investigations
The RRT has a Country Research Section to deal with requests for information by its members. Most of its staff have graduate or post-graduate degrees and possess impressive research and analytical skills. Members put questions raised by an application to Country Research. Country Research has access to the departmental and Canadian databases, the RRT’s own information collection, online news services, relevant Internet databases and libraries. It also can ask the Australian Department of Foreign Affairs to put specific questions to diplomatic staff in the relevant country or seek the opinions of academics or other experts.
A Country Research response sets out the questions that have been posed, the investigations that have been conducted and summarises and attaches the relevant information produced by those investigations. RRT members are discouraged from revealing the role of Country Research to applicants or mentioning it in their reasons. This is said to be necessary to protect Country Research staff from the risk of being summoned to appear in Federal Court proceedings. How that might come about is never explained. A more valid explanation is that it is the member’s analysis of the information that is relevant and not that of Country Research staff. This ignores the general expectation that a review tribunal will inform an applicant of the action it has or proposes to take in the applicant’s case. There is also the more mundane consideration that the Country Research response would often be useful to applicants and their advisers.
A different philosophy has been adopted in Canada. The introduction to The Research Program of the Immigration and Refugee Board states:
“The premise that objective, current and reliable information is essential to good decision making is central to the philosophy that inspired the creation of the Research Directorate of the Immigration and Refugee Board and continues to govern its activities. Through the provision of this information to all parties in the refugee determination process, the Research Directorate makes a valuable contribution to informed decision making and the integrity of Canada’s refugee determination system.”5
RRT members are only allocated cases in respect of a relatively small number of countries at a time. This is done to allow a member to acquire a reasonably detailed knowledge about the countries in question, which can then be applied to a significant number of cases.
It is not the practice of most members to put the Country Research response on the RRT file. Members keep the response for their own use when similar issues arise in other cases. Members also acquire information from their own reading and research and from other members. It is common for members to acquire their own library of books and travel guides on the countries they were allocated.
The result is that it is often impossible to tell from a RRT file what documents the RRT considered relevant or had before it when it arrived at its decision. The citation of documents in the RRT’s reasons and, notionally at least, the documents listed in the delegate’s reasons, often provide the only indication of what general country information was before the RRT.
Prehearing procedures
At the RRT’s first annual conference it became clear that some solicitors and migration agents were not happy with the RRT’s procedures. They were critical of the RRT’s failure to have any prehearing procedure for identifying the real issues or making relevant information available to applicants. These complaints were the subject of a report by a members’ committee, but no consensus was achieved by the members. These matters were left to the discretion of each member and the result was divergent practices.
A minority of members would hold prehearing conferences, by telephone or in person, to clarify the issues and the evidence the applicant would be providing and any investigations the RRT was undertaking. Other members did this by correspondence. Some members provided an applicant with the relevant information obtained by the RRT well before a hearing. Other members dealt with these matters at the hearing, when the applicant learnt for the first time of the issues that troubled the RRT and of the information it had obtained that it considered adverse to the applicant’s case. Even then, some members would provide an applicant with the documents and time to respond in writing. Other members would simply indicate what the member thought was the general thrust of the material and seek a response immediately. This last approach received some judicial support in Ntiamoah v Minister for Immigration & Multicultural Affairs6 but is difficult to reconcile with the reasoning of the High Court in Kioa v West.7
The formal position of the RRT is found in its Practice Directions.8 Prehearing conferences are dealt with at 8.12. Any prehearing procedures to deal with issues are at the discretion of the presiding member and will only occur in exceptional cases. How and when an applicant is given an opportunity to respond to significant and potentially adverse material is left to the discretion of the individual member. This is dealt with at 8.5. General access to documents and the departmental and RRT files on an applicant is dealt with at 15. Access is obtained by a request under the Freedom of Information Act, however, such requests are uncommon. Most applicants never see the documents cited in the delegate’s reasons and a significant number never see those cited in the RRT’s reasons.
In 1995 the Administrative Review Council stated that “as a general principle, applicants should never have to seek recourse to the FOI Act in order to obtain information relevant to the review of [a] decision involving them”. Its Recommendation 14 read:
“Subject to confidentiality and secrecy provisions, review tribunals should disclose to the applicant all the information, whether favourable, neutral or adverse, that it proposes to take into account in making its decision, and should give the applicant an opportunity to make submissions regarding that information.”9
The Act now gives applicants time to respond to any information, from a source other than the applicant, that would be the reason or part of the reason for an adverse decision. Information that is not specifically about an applicant or another person is excluded from this requirement (s 424A). There is a comparable provision that applies to the Migration Review Tribunal where it may provide an important right (s 359A). It makes no sense in the case of the RRT. The general country information on which most RRT decisions turn is excluded from the duty of disclosure.
The position of the RRT can be compared with that of the Canadian Convention Refugee Determination Division of the Immigration and Refugee Board. Its practice note Disclosure and Filing before Hearings of Relevant Evidence of May 5, 1998 states:
“A full and proper hearing conducted fairly and expeditiously requires:
• that the issues central to a claim or an application be defined;
• that the case be thoroughly prepared;
• that there be ongoing communication on the preparation of the case among all the participants in the hearing;
• that documents, reports, or other material to be produced as evidence be selected having regard to the issues identified; and
• that there be timely disclosure and filing before the hearing of all relevant evidence, particularly country condition and personal identity documents.”10
An applicant has the right to give the RRT registrar statutory declarations in relation to the facts and written arguments in relation to the issues (s 423). The former s 425(1)(b) provided that the RRT may obtain such other evidence as it considers necessary. Section 424(1) now provides that the RRT may get any information that it considers relevant, but if it does so, must have regard to that information in making its decision. This places an obligation on the RRT to reveal in its reasons whatever information it obtains in a case and explain the weight given to such information. This could lead to the RRT being more open about its investigatory activities.
The Hearing
Before an adverse decision can be made an applicant generally has the right to appear before the RRT to give evidence and present arguments about the issues (s 425). The former s 425 provided that no one other than the applicant had the right to address the RRT on the issues. Section 427(6) now states that a person appearing before the RRT to give evidence is not entitled to be represented or to examine or cross-examine any other witness. That is presumably meant to apply to applicants. The applicant has the right to request the RRT to obtain oral evidence from nominated witnesses. The RRT must have regard to the applicant’s wishes but is not required to comply with them (s 426).
The difference in how hearings were conducted was also the subject of criticism by solicitors and migration agents at the RRT’s first annual conference. Members differed about the nature of the right to give evidence. Some members considered that applicants had a right to give or be led through their relevant evidence. Other members considered that the principle purpose of the hearing was to enable the RRT to clarify issues and put adverse material to an applicant. Members also differed about the extent to which they would permit an applicant’s adviser to participate in a hearing. Some members would permit an adviser to examine witnesses. Other members confined advisers to making brief submissions at the end of the hearing. The RRT has a wide discretion as to how it can conduct a hearing11 but a lack of consistency makes it difficult for advisers to prepare for a hearing.
Decisions
Unlike other Commonwealth tribunals the RRT can only be constituted by one member (s 421). This saves on costs but increases the risks of inconsistent and idiosyncratic decision making. RRT members are not required to have any specific qualifications. Members come from a wide range of backgrounds. They include people who have been practising lawyers, public servants, United Nations officials, employees of non-government humanitarian organisations and academics.
With some 60 members making decisions, there is a need for a mechanism to facilitate a measure of consistency. This is largely the role of the RRT’s Legal Research Section. Its staff comment on members’ draft reasons, respond to specific requests for guidance on legal issues and produce bulletins and summaries on general legal issues of concern to the RRT. In particular, it produces general statements of the law, which members can and often do use in their reasons. The comments by Legal Research staff on a case are almost never placed on the applicant’s RRT file.
Commentary
The establishment of the RRT in 1993 was welcomed as an important and necessary reform of Australia’s procedures for meeting its Convention obligations. The RRT is now regarded poorly by many solicitors and migration agents that advise protection visa applicants. This is due in no small measure to the lack of consistency in its procedures and decisions and the belief that the procedures followed by some members deny applicants a reasonable opportunity to prepare and present their cases.
The issues central to an application are often not defined until the RRT hearing. On occasion they are identified for the first time in the RRT’s reasons for a decision. There is seldom full and timely disclosure of all relevant information by the RRT. This is reminiscent of the bureaucratic culture of secrecy and infallibility that existed prior to the Commonwealth’s administrative law reforms.
The Act gives an applicant the right to put his or her case to the RRT in writing, by giving evidence and making submissions in person, and by nominating witnesses. An essential part of a right to put a case is the right to a reasonable opportunity to prepare it. As Mason J explained:
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made ... a person ... is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”12
How can an applicant prepare and put a case without knowing the information to which the RRT proposes to have regard, which it has obtained from the department or sources other than the applicant? Without that knowledge, how could an applicant know what factual issues arise, what information needs to be rebutted or explained or what witnesses to nominate?
From the RRT’s perspective, it will be more likely to arrive at the correct or preferable decision if it has the applicant’s considered response to the information before it and to the issues raised by that information.
The same result is reached if an applicant is given the rights commonly accorded under inquisitorial systems. There would be a dossier or file, containing all the information obtained about the case, from the time the original application for a visa was lodged. The issues raised by that information would be identified by the decision maker. The applicant or the applicant’s adviser would have reasonable access to the dossier and the opportunity both to suggest new lines of inquiry and to supplement the material in the dossier. There would then be an opportunity to make submissions on what conclusions should be drawn from that information.
There is no reason why the RRT cannot adopt procedures that meet the criteria for a fair and expeditious hearing identified by the Canadian Immigration and Refugee Board that I quoted earlier. It may be that the various procedures adopted by RRT members are authorised by the statute under which the RRT operates. Whether or not this is so, people claiming refugee status in Australia deserve a fair and proper opportunity to make out their case for Australia’s protection. The RRT’s present inquisitorial model does not guarantee that opportunity.
* Craig Colborne is a barrister at Frederick Jordan Chambers in Sydney. He was a member of the RRT from 1993 to 1996.
Endnotes
1. In Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, 19 March 1999, Hill J explained at para 59 that the function of the RRT, like the AAT, is to arrive at the correct or preferable decision, a view endorsed by Wilcox and Madgwick JJ, at para 18.
2. In Daher v Minister for Immigration and Ethnic Affairs [1997] 77 FCR 107, at 110, the Full Federal Court held that the RRT’s jurisdiction must be read so as to exclude decisions reviewable by the AAT.
3. The terms of the Convention and Protocol and details of the counties that have ratified them are at <http://www.unhchr.ch/html/intlinst.htm> .
4. The information produced by the Immigration and Refugee Board is available at <http://www.irb.gc.ca> .
5. See the commentary on the Board’s research program at <http://www.irb.gc.ca/dirb/index_e.stm> .
8. The RRT’s Practice Directions are available at <http://www.austlii.edu.au/au/other/rrt/practice.html>
9. Administrative Review Council Report Better Decisions: Review of Commonwealth Merits Review Tribunals Canberra AGPS 1995, at 43-45.
10. The Practice Note is at <http://www.irb.gc.ca/crdd/practice2/index_e.stm> .
11. Rong v Minister for Immigration and Ethnic Affairs [1995] 38 ALD 38, p 64.
12. Kioa v West [1985] HCA 81; [1985] 159 CLR 550, at 582.
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