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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