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This is the third post in an on-going series on Refugee Law, following what I’m learning in Refugee Law with Dr Michelle Foster. To read the full series go here.

This week in Refugee Law we learnt about what the three stage process is for refugees who are applying for asylum in Australia. First, there’s what is the determination by the Department of Immigration and Citizenship (formally DIMIA now DIC); then if they aren’t successful the refugee can generally appeal that decision to the Refugee Review Tribunal (RRT); and if they still aren’t happy with that outcome there is the final avenue of judicial review.

Applying at DIC
In applying for asylum to DIC the refugee make a written application, though the Migration Act does allow for interviews this is not a requirement and unbelievably 90% of refugee applications are assessed purely on the written application. Considering that a large part of what is being assessed is the credibility of the claim being made, it is hard to imagine how this could be done purely based on a written application. There are a few other issues with this first level of determination.
Firstly, it can be hard to get access to this level in the first place. Potential applicants are “screened in or out” at detention centres based on their responses to interviews conducted without any legal assistance. Immigrants are not told about their rights or how to apply for asylum, except at the discretion of the officer handling the interview. Though a recent Senate Committee recommended a duty solicitor be on call for detention centres this has been rejected by the government.
Secondly, DIC has been criticised by the Senate Committee for arbitrary and inconsistent decision making and for the lack of funding for legal advice given once the application process is underway.
Thirdly, the information relied on by DIC officers has also been called into question. For example, when the USA overthrew the Taliban in Afghanistan, DIC began rejecting Afghani refugee claims despite the obvious instability of the region and the likelihood of their being persecuted on return to Afghanistan. This shows the danger of government policy, as part of the coalition of the willing Australia had a vested interest in projecting an image of success, influencing refugee determination. Thankfully 89% of these cases were overturned on review by the RRT.
Finally, DIC being in control of refugee determination is itself an area of contention. DIC is primarily concerned with issues of migration and border control, that is trying to regulate who comes to Australia and keep people out. DIC doesn’t have the sort of international law expertise that, for example, the Attorney-General’s office has, and may be biased in their interpretation of refugee claims and legislation/conventions.

(for an interesting documentary on this level of determination see Well Founded Fear, an excellent American documentary which went inside the first level of the US’s determination process. See also this PBS website.)

Review at the RRT
If a refugee is turned down at DIC they can then apply to the RRT for review of the decision under s 457 of the Migration Act. The RRT was established in 1993 and has broad powers of review. They are able to affirm, vary or set aside a decision or send it back to DIC for reconsideration. It is a non-adversarial system, and is quite informal. It is designed to be a less confronting experience for applicants, though the wide discretionary nature of the procedure has the potential for abuse.
Reviews are heard by one member. An applicant is entitled to appear before the Tribunal to give evidence and present arguments and can request the RRT to call witnesses. However, the applicant is not required to appear in person. As the RRT mostly sits is Melbourne and Sydney many of the hearings are conducted via telephone or video link, this presents problems for members who are meant to be evaluating credibility of a refugee’s testimony when a large amount of relevant information will be conveyed by body language. Not to mention the difficulty for the applicant dealing with an interpreter, telephone connection and whole new country and legal system.
Along with the problems above the rules governing RRT member selection and retention present some problems. Five year terms for members means there is no tenure of the sort given to judges to certify their independence. Also, there is a lot of cross-appointment between the Migration Review Tribunal and Refugee Review Tribunal - two very different tribunals which require vastly different expertise.

At the Courts
The final stage of review is judicial review. Judicial review is in many ways more complex then the above two stages, but here are two pertinent points. Firstly, the courts can only review errors made in law not in fact, it is not a merits based review but rather a legal one. This means applicants needs to find faults in law to bring an appeal to the court rather then just a problem with the ultimate decision. Though there are some exceptions to this rule and creative legal maneuvering to get around it in some cases. Secondly, ‘privative clauses’ have been introduced to the Migration Act that attempt to limit the amount of review available to refugees by the courts. However, due to the jurisdiction given to the High Court by s 75(v) of the Constitution, this has meant a redistribution rather then reduction of refugee appeals.

So that’s a basic intro to the three levels of a refugee application. As the Convention doesn’t give any requirements for status determination, States are free to do whatever they want, though they must make a genuine effort to ascertain refugee status or risk contravening non-refoulement - a bedrock principle of refugee law that a refugee is not to be returned to a country where they being persecuted (hopefully to be blogged about soon). That said, other treaties such as the International Covenant on Civil and Political Rights does provide for some basic rights in regards to the legal system for all people, and art 16 of the Convention on Refugees does say that refugees should have free access to the courts of their resident country. But neither of these provisions are incorporated into Australian law so aren’t directly active or applicable in these cases.

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