BY SARAH STEPHEN
Two Indonesians of Chinese descent fled to Australia from Indonesia
seeking asylum on the basis of religious and ethnic persecution after the
fall of the Suharto dictatorship in 1998. Assessed as separate cases, they
were found not to be refugees by the immigration department.
When each of them appealed, the Refugee Review Tribunal (RRT) upheld
the department's decision. The tribunal ruled that, according to information
before it, violence against ethnic Chinese was not officially condoned
by the Indonesian government, so there was no case for asylum.
In 1998, Sydney immigration lawyer Adrian Joel took the cases of Muin
v RRT and Lie v RRT to the High Court. He conducted his own research over
six months, and found evidence of injustice and maladministration within
the tribunal.
Announcing its decision on the two cases on August 8, the full bench
of the High Court found that the applicants were denied natural justice
because some information supporting their cases wasn't given to the RRT
by the immigration department.
The two applicants had in fact provided information that supported their
contention that Indonesian authorities could not and would not protect
their ethnic Chinese citizens from violent persecution.
The court's ruling was a strong one — 7-0 in favour of the first applicant
and 5-2 in favour of the second. While the decision applies directly to
only two cases, it has ramifications for another 7600 asylum seekers involved
in a class action suit, also filed by Joel, all of whom are affected by
essentially identical circumstances.
Joel labelled the High Court's decision “a recognition of significant
maladministration”. Speaking on ABC's Lateline on August 8, he said: “I
think there are vast implications because it benefits not just those in
the class [action], but all of those who have had decisions made from the
time that the tribunal commenced up until literally the Tampa legislation
[September 2001].”
Explaining the High Court's ruling, Joel said: “Once the department
of immigration makes a decision, they have to send the evidence to the
appeal board”, but instead of sending the evidence in document form, which
the law requires, the department sent it electronically. This meant that
not all documents were being transferred to the RRT. “A lot of substantive,
significant material never got — or may never have got — to the tribunal
to look at”, Joel added.
The tribunal sent letters to each of the two asylum seekers, saying
that all the documents — the original paper documents — had been sent,
and the tribunal had read them all. Joel pointed out that “when the person
went to the hearing, they were under a completely different impression
as to what had been read and what occurred”.
Mary Crock and Ben Saul explain the powers of the tribunal in their
book Future Seekers (published in March): “Applicants refused protection
may challenge the factual basis of the decision in an independent tribunal…
A single member of the RRT reviews the merits of the decision in a setting
less formal and adversarial than a court. It examines all over again whether
the applicant meets the refugee definition… The RRT can overturn the decision
of the immigration officer and grant a protection visa to the applicant
if it believes that the initial decision was wrong based on the facts.
The RRT can also uphold the immigration officers' decision, in which
case the applicant must pay a $1000 fee and must leave Australia within
28 days (unless the applicant appeals to the courts).”
Since its establishment in 1993, the tribunal has finalised more than
45,000 cases. It overturned the immigration department's decisions and
granted refugee status in only 11% of cases.
The tribunal has 67 members — lawyers, refugee advocates, public servants
and some retired politicians. They are well paid, on more than $86,000
a year. Full-time tribunal members are expected to examine about 120 cases
a year, or three a week.
There is a widespread perception that the tribunal is not genuinely
independent of the immigration department, since the department finances
the tribunal and the immigration minister appoints its members, who are
on three-year contracts.
Like his Labor predecessor Nick Bolkus, Coalition immigration minister
Philip Ruddock has made many political appointments to the tribunal. Former
NSW state Liberal MP Bruce McCarthy joined the tribunal in 2001, as did
former Victorian Liberal senator Karen Synon.
“There is ministerial pressure” on the tribunal, Adelaide barrister
Tony Gibbons told the November 9 Melbourne Age. Gibbons served on
the tribunal under Bolkus and Ruddock, but has now left. “It is indirect,
but there is a pressure to produce decisions and deal with them quickly
and [not to] bother about the niceties. There is pressure … indirectly
as well, to not say too many people are refugees.”
Age journalist Melissa Fyfe added: “With members on three-year
terms, facing the threat of not being reappointed, it is impossible for
members not to be influenced by the minister, critics say. `There is pressure
on them to deliver results conducive to their reappointment', says former
Federal Court judge Marcus Einfield. `That's a complete denial of judicial
independence'.”
The Refugee Council has called for the immediate constitution of a judicial
inquiry into the tribunal. Refugee Council president David Bitel commented
on August 8: “We are talking about people, not numbers, people who are
claiming that they will be persecuted if they are returned to their country
of nationality. Now can they put their case to Australia to seek protection
if the system that is deciding their case is not acting in accordance with
the law?”
In a press release issued on August 8, Democrats immigration spokesperson
Senator Andrew Bartlett said: “Unless the minister objects to the precedents
in these cases applying to those people who are signed up to the class
actions, it could lead to thousands of cases being sent back to the tribunal
for re-determination. If the minister does successfully object, it could
mean all of those cases having to be individually assessed for procedural
fairness by the courts.”
The High Court's ruling severely weakens the government's political
case to limit judicial reviews of tribunal decisions. Without the right
to judicial review, the tribunal's systematic denial of applicants' right
to a fair hearing might never have been revealed.
The Migration Legislation Amendment (Procedural Fairness) Bill 2002,
which the government passed with the full support of the ALP on June 26,
could be invalidated by the High Court's decision. The amendment attempted
to close the “loophole” that existed in the September 2001 legislation
which introduced a privative clause to stop all rejected asylum seekers
from being able to have their cases reviewed by the courts. However, the
courts continued to hear cases on the basis of the denial of “natural justice”.
The June amendment explicitly denied those denied a fair hearing by the
RRT the right to appeal to the courts.
Prime Minister John Howard's comments on the ABC's 7.30 Report
on August 8 reflected an unusual defensiveness. He said: “We're subject
to the law. Whatever the law is, the law will be followed. It does rather
reinforce the point that people in other parts of the world who criticise
this country for not treating people properly, I would say to them we have
a judicial system, we have a law…”
When compere Kerry O'Brien pointed out that this was the judicial system
that to a very substantial degree Howard had tried to shut out of the refugee
process, Howard tiptoed around the question, adding later on that “tribunals
and courts often operate unfairly”.
From Green Left Weekly, August 14, 2002.
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