BY SARAH STEPHEN
The August 8 High Court decision that the Refugee Review Tribunal (RRT) had denied two applicants "natural justice" when its members lied about having studied all the material the applicants had submitted with their initial applications, highlighted the tribunal's role as an instrument of the federal government's policy of denying sanctuary to refugees.
The RRT was established in 1993. Peter Mares, in his 2001 book Borderline, explains that RRT members are "supposed to follow a European-style inquisitorial model rather than the adversarial approach used in our courts ... In theory this should enable the presiding member to elicit as much information as possible from the applicant in a non-threatening manner... the procedure is supposed to be so friendly and straightforward that the applicant does not even need the assistance of a lawyer or migration agent."
The reality is rather different. As Mares notes, "tribunal members often ... treat the applicant as an adversary."
The RRT is a body with a shady record, and with questionable independence from the government. It is government-funded and its members are appointed by the governor-general on the recommendation of the immigration minister, who also fixes their terms of appointment.
Ministerial interference in the work of the RRT is not uncommon. According to a 2002 paper by Susan Kneebone, an administrative law expert at Monash University, immigration minister Philip Ruddock "will intervene in cases where he disagrees with the way that the tribunal is implementing his 'policy' in relation to the refugee convention. For example, in 1996 the minister publicly chastised members of the RRT who were finding that abused women satisfied the refugees test."
An asylum request is first assessed by an officer within the immigration department, a process which is deeply flawed. The majority of cases are decided on the basis of the written application alone, with 87% of non-detention applications and 33% of detention applications rejected without interview.
If the department finds that an applicant does not fit the definition of a refugee, the applicant can appeal that decision to the RRT, and about 90% of unsuccessful applicants do. Of those who do go through the RRT process, about 3000 every year, around 10% will be successful.
The immigration department has come under fierce criticism for its assessment of applications. Dr Rory Hudson, a former RRT member, told the 2000 Senate legal and constitutional affairs committee investigating refugee and humanitarian determination processes: "Primary decision-makers ... are often woefully ignorant of the law and of conditions in the country against which they assess the applicant. Anecdotal evidence is that they are often arrogant, hostile and even abusive towards applicants.
In some cases, they reveal attitudes of prejudice, xenophobia and racism."
According to legal practitioner Leonard Karp, forms are often completed without the assistance of an interpreter, and due to time constraints in completing the initial application (which, if in detention, must be submitted within three days of the applicant being allocated a migration agent), agents have told applicants that details can be added at a later date, which they cannot.
The courts have been progressively pushed out of overseeing the refugee determination process. Starting with the implementation of mandatory detention in 1992, the courts were denied a role in assessing the lawfulness of detention. Then in 1994, the Labor government amended the Migration Act so that the Federal Court could only hear cases which related to an error of law in the RRT hearing, and not the merits of the asylum seeker's refugee case.
The life-and-death nature of refugee cases warrants the greatest number of checks and balances but, sadly, it is the area of decision-making which has the least.
The restrictions imposed on the jurisdiction of the courts were supposed to curb the number of judicial reviews, but instead they have snowballed. In the past five years, migration matters before the Federal Court have increased 300%. In the 2000-01 financial year, nearly 23% of all appeals brought to the Federal Court were under the Migration Act, as were 46% of appeals to the full bench of the Federal Court. At June 30, 2001, the Federal Court had 453 applications before it, while the High Court had 54.
Evidence suggests that, rather than asylum seekers trying to prolong their stay in the country, the increase in the number of judicial appeals has resulted from hasty and inadequate decision-making by the immigration department and the RRT, as well as the inadequate provision of legal advice.
Ruddock's preference is for the decisions of the RRT to be final, without any "interference" by the courts. To this end, the Howard government introduced legislation in September 2001, and again in July this year, designed to rule out access to the courts in all but exceptional circumstances.
The steady removal of judicial oversight means that there is less transparency or scrutiny of RRT decisions. Without judicial oversight and pressure to be accountable, the standard of decision-making has become harsher. The RRT's set-aside rates (the percentage of departmental decisions overturned) reflect this, as well as an increasing pressure to reject applications. Set-aside rates have gone from 14.5% in 1993-94, and 17.5 % in 1994-95 and 1995-96, to 9.8% in 1997-98 and 9% in 1999-00.
Kneebone told ABC Radio National's Law Report on June 5, 2001, that the decisions of the RRT were notoriously inconsistent and success before the tribunal was a lottery. "From my observation it's only when an applicant is in fact extremely articulate and has access to good sources in the country of origin for up-to-date information that that person is likely to succeed."
Lawyer Mark Robinson told the Senate committee: "There are dozens and dozens of Federal Court references to the tribunal's obsession with the credibility of an applicant. It is an issue because it is a primary reason for refusal of the tribunal... It is ... lazy, because the tribunal does not have to determine the real issues. It can simply say: 'I don't believe you. Next case please.'"
According to Mares: "Many asylum seekers feel that their true story does not get heard, and that the focus is on destroying their personal credibility. 'It is a constant problem that has plagued refugee determination', says refugee lawyer Carolyn Graydon... She believes that there is a 'fixation with credibility of applicants', that genuine refugees are rejected on the basis of minor inconsistencies in their testimony."
Mares cited a case documented by National Legal Aid where an applicant from Pakistan claimed to be an Ahmadi facing religious persecution. The immigration department case officer did not interview the applicant, made no inquiries about his faith, and yet rejected the application on the basis of credibility. The officer wrote simply: "I have very great difficulty accepting the applicant's claim that he is an Ahmadi..."
Kneebone found that some tribunal members carried prejudices about particular countries into the hearing room. "The High and Federal Courts have found that a number of members have laughed at the applicants and have really been quite unpleasant and unsympathetic. It is totally inappropriate and I would suggest they are legally biased."
In an November 9 Age article, journalist Melissa Fyfe pointed out that a "big problem is that, as the government has stripped away legal aid for asylum seekers, the advice [RRT members] get from lawyers is bad to non-existent".
Prior to July 1998, asylum seekers had access to legal aid if they satisfied the means test and their case had a reasonable chance of success. At the same time, the government established the Immigration Advice and Application Assistance Scheme (IAAAS), which is available to all detained asylum seekers and those living in the community who are deemed "eligible", at the primary stage of their claim, and for appeals to the RRT.
It does not extend to representation at an RRT hearing, nor to assistance with judicial review. According to National Legal Aid, the amount of money spent assisting asylum seekers halved after the introduction of the IAAAS.
Mares explains: "While all asylum seekers in detention are guaranteed IAAAS support, very few places are made available for asylum seekers in the community. The Legal Aid Commission of New South Wales (the state where most asylum applications are lodged) received funding for just 40 community cases in 1997-98."
Furthermore, many asylum seekers are unaware of the availability of IAAAS assistance. In its submission to the Senate committee, the Kingsford Legal Service noted: "In 1997-98 there were 8508 applicants for a protection visa (asylum seekers), yet during the same period only 542 asylum seekers were assisted by IAAAS."
Criticisms have been raised about the adequacy of representation provided by IAAAS migration agents, who are employed on government contracts. Some protection visa applications prepared with IAAAS assistance have been criticised as overly brief and inadequate.
According to Mares: "To many lawyers, the inadequacies of the IAAAS explain why there is an increase in refugee litigation before the Federal Court, particularly by unrepresented applicants."
From Green Left Weekly, August 28, 2002.
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