Know the Facts
Legal aspects of refugee claims - 2004 RAR National Conference
by Julian Burnside
Fundamentals
Constitutional constraints
When an appeal succeeds
48B and 417 applications
Terminology
Developments
The Process
Refugee Resources
Visa
[Note: law resists simplification. This is a very simplified account: it
admits of many qualifications and exceptions. Its purpose is to describe the
territory: it is not a map for explorers]
Fundamentals
A person who arrives in Australia without a visa and claims asylum must establish
that they are a person to whom Australia owes protection obligations ie, that
they are a refugee.
Shortly stated, a refugee is a person who does not wish to return to their
country of origin owing to a well-founded fear of persecution on racial, religious
or political grounds.
Refugee claims are governed by the Migration Act [1]
Delegate
On arrival, the asylum seeker is interviewed by an officer of the Department
of Immigration Multicultural and Indigenous Affairs (DIMIA)[2]
acting as the delegate of the Minister. If the delegate accepts the claim
for asylum, a protection visa will be granted.
RRT
If the delegate rejects the claim, the asylum seeker has the right to appeal
to the Refugee Review Tribunal (RRT)[3]. The appeal is a full
rehearing: ie, the asylum seeker gives their evidence again, and the RRT decides
whether to believe the evidence or not, and assesses whether the evidence
discloses 'a well-founded fear of persecution on racial, religious or political
grounds'.
The RRT has several notable features. The RRT members do not have to be lawyers.
The Migration Act does not prescribe any particular qualifications for membership
of the Tribunal. They are appointed for a short term but can be re-appointed.
If their decisions please the government, their chances of re-appointment
appear to improve. No doubt most members of the RRT are good and conscientious
people. But it is impossible to overstate the impact of the framework within
which they operate. In an article in the Washington University Law Quarterly[4],
Stephen Legomsky strongly criticized the pressure to which the RRT was subject.
RRT members sit alone, not as a panel: thus, the decision in a particular
case is made by one tribunal member.
If the RRT rejects the claim, the asylum seeker has the right to challenge
the decision by way of judicial review.
Judicial review
Judicial review is quite different from a normal appeal. In a normal appeal,
the appeal court considers whether the decision under appeal was wrong.
On judicial review, the question for the court is whether the tribunal exceeded
its jurisdiction or failed to exercise its jurisdiction. Thus, the question
is not error, but jurisdictional error.
An administrative body (like the RRT) identifies a wrong issue, or asks itself
a wrong question, or ignores relevant material, or relies on irrelevant material,
and the tribunal's exercise or purported exercise of power is thereby affected,
it exceeds its authority or powers. Such an error of law is jurisdictional
error which will invalidate the decision of the tribunal.
Challenges to RRT decisions may be made in either of two ways: by seeking
judicial review pursuant to the provisions of the Migration Act, or by seeking
a Constitutional Writ.
Whichever path is adopted, the case will initially be heard by a Federal
Court Judge. Such cases can also be referred into the Federal Magistrates
Court and be heard by a Federal Magistrate.
If the application for review fails, the asylum seeker has a right to appeal
to a Full Court. The Full Court comprises three members of the Federal Court
sitting together. If the initial case was heard by a Federal Magistrate, there
is also an appeal to a Full Court, but in this case the Full Court will comprise
a single judge of the Federal Court.
High Court
The High Court of Australia is the ultimate court of appeal in Australia.
There is no appeal as of right to the High Court. A person seeking to appeal
to the High Court from the Full Court must apply for special leave to appeal.
It is not a sufficient ground for special leave that the decision below was
wrong: there must be a question of general importance in the case.
Constitutional constraints
Australia's Constitution, though relatively old-fashioned, has two aspects
which are important constraints in this area; constraints, that is, on the
government's attempts to restrict refugee appeals.
Section 75(v)
The first is section 75(v) of the Constitution which gives the Court power
to ensure that the conduct of officers of the Commonwealth is according to
law. It provides a form of judicial review of administrative action. Since
the jurisdiction is conferred on the High Court by the Constitution, it cannot
be taken away by the government of the day: constitutional change has always
been difficult in Australia.
Separation of powers
The second is the separation of powers. The Australian Constitution entrenches
the separation of powers. The three powers of governments - legislative, executive
and judicial - are vested in the three different arms of government. The powers
of one arm of government may not be exercised by another arm of government.
Accordingly, the Parliament, established under Chapter I cannot exercise the
powers of the executive government which is established under Chapter II.
Courts established under Chapter III of the Constitution may not pass laws
Punishment is central to the judicial power. Accordingly, only a Chapter III
court can inflict punishment on a person.
When an appeal succeeds
When an appeal succeeds, it does not follow that the asylum seeker receives
a protection visa. Instead, the effect of a successful appeal is to set aside
the original RRT decision, whereupon the asylum seeker goes back to the RRT
for a fresh hearing. It often happens that their second RRT hearing also results
in refusal of a visa, in which case the whole judicial review process may
start again.
This explains why some people spend years in detention before ultimately
receiving a visa.
48B and 417 applications
When a person's claim for asylum has failed they must, according to the Act,
be removed from Australia as soon as reasonably practicable.
They are not permitted to make a further application for a protection visa,
although the Minister has a discretion to permit a further visa application
to be lodged. That discretion is conferred by section 48B of the Migration
Act, so these applications are referred to as 48B applications.
Another ministerial discretion is conferred by section 417. This is the discretion
to substitute a more favourable decision for the decision of the RRT. As a
matter of practice, the Minister does not consider a section 417 application
if the asylum seeker has any litigation on foot. The 417 application is supported
by a letter setting out all the circumstances which the asylum seeker relies
on as justifying their claim for protection. The Minister is not obliged to
exercise the discretion.
Terminology
417 application: The Minister has a discretion to substitute a more
favourable decision for the decision of the RRT. The discretion is conferred
by section 417 of the Migration Act. Applications of this sort are available
when all appeals have ended and the asylum seeker has been refused a protection
visa.
48B application: When a person's claim for asylum has failed
they are not permitted to make a further application for a protection visa
except with the permission of the Minister. The discretion to permit a further
protection visa application is conferred by section 48B of the Migration Act,
so these applications are referred to as 48B applications.
Bridging visa: A bridging visa is one which permits the holder
into the community pending the grant (or refusal) of a protection visa or
other substantive visa. They may be granted in cases of special need, such
as illness which cannot be adequately treated in detention. A person on a
bridging visa will not be permitted to work, and may be required to provide
security.
Chapter II court: a court established under Chapter III of
the Constitution. In Federal matters (including migration and refugee matters)
Chapter III courts have the exclusive power to exercise the judicial power
of the Commonwealth.
Constitutional writs: writs authorised by section 75(v) of
the Constitution[5] , by which the conduct of officers of the
Commonwealth can be required to conform to law. The constitutional writs provide
a constitutionally entrenched form of judicial review of administrative action.
Full Court: The Full Court comprises three members of the Federal
Court sitting together. If the initial case was heard by a Federal Magistrate,
there is also an appeal to a Full Court, but in this case the Full Court will
comprise a single judge of the Federal Court.
Habeas corpus: an order of the court (literally 'let us have
the body') by which the lawfulness of a person's detention can be considered
by a court.
Migration zone: The migration zone is simply a construct for
the purpose of the Migration Act. The islands off shore, 3000 or so that have
been excised, are all still part of Australia's territory. But they do not
form part of this notion the 'migration zone'. The importance of that is that
if an officer of the department finds a person, a non-citizen, in the migration
zone, or seeking to enter the migration zone. Then the officer has an obligation
under law to take that person into detention. That means that they are in
detention in Australia, where they can make application for a protection visa.
The point of excising the islands is that if a person reaches Australian territory
they are not required to be taken into immigration detention, although they
can be detained, and they are not entitled to make an application for a protection
visa. With the other machinery introduced immediately post-Tampa, the person
can then be taken, against their will, either to Manus Island or to Nauru,
where they are held by the International Organisation for Migration (IOM)
on Australia's behalf.
Privative clause: section 474 of the Migration Act which provides,
in substance, that a decision of the RRT should not be challenged appealed
or called in question in any circumstances in any court whatever. It was substantially
disabled by the decision in the case of Plaintiff S157.
Recent developments
Plaintiff S157
The High Court decided S157 in February 2003. The case was a challenge to
the 'privative clause' introduced into the Migration Act in the wake of the
Tampa case. The High Court said that section 75(v) of the Constitution prevented
the RRT's decisions being put wholly beyond challenge in the High Court. They
said that if the RRT exceeded its jurisdiction, then the result was not a
'decision' at all, since it was something the RRT had no power to do. Accordingly,
the privative clause did not operate to prevent a challenge to 'decisions'
made beyond jurisdiction. The decision substantially disabled the privative
clause.
'Al Masri' release; habeas corpus
Mr al Masri was a Palestinian from the Gaza Strip. He arrived in Australia
in June 2001 and was placed in Woomera Detention Centre. He applied for a
protection visa, claiming to be a refugee. He was refused a protection visa
and asked to be returned to the Gaza Strip. Although Mr al Masri was able
to produce a passport, officers of the Department of Immigration were unable
to return him, because they could not get permission for his entry to the
Gaza Strip. The Palestinians, it seems, thought he was an Israeli spy. Israel,
for its part, did not want him. Five months passed and Mr al Masri remained
locked up in Woomera. Mr al Masri applied to the court for an order releasing
him from detention. Not surprisingly, the government resisted that application.
Because of the separation of powers, only a Chapter III court can inflict
punishment on a person. Locking a person up is generally regarded as punishment.
However, the High Court has acknowledged that there are circumstances where
detention is necessary for the discharge of an executive function. In those
limited circumstances detention imposed directly and without the intervention
of a Chapter III court will be constitutionally valid. This holds good only
as long as the detention goes no further than can reasonably be seen as necessary
to the executive purpose which it supports.
The Migration Act requires that all unlawful non-citizens should be detained
and should be held in detention until granted a visa or removed from the country.
Mr al Masri's case presented a conundrum: he had been refused a visa but he
could not be removed. The question then was: should he remain in detention.
For the sake of accuracy, it is worth quoting a portion of the Judgment in
al Masri's case:
"Theoretically at least, detention might continue for the rest of
a person's life and the Solicitor-General did not shrink from that possibility,
whilst contending that in the real world such a thing would not happen."
Put simply, the Solicitor-General, on behalf of the Minister for Immigration,
had submitted to the court that, if it came to the point, Mr al Masri could
be locked up for the rest of his life, although he is innocent of any offence.
The judge at first instance, and the Full Court, ordered Mr al Masri's release.
They said that - The government sought special leave to appeal to the High
Court, but in the meantime they had managed to find a country to send him
to. Another case raising the same problem, al Khateb, was uplifted to the
High Court to test the question. The case was argued in November 2003. It
has not yet been decided.
Woomera escapees case
Woomera opened for business in December 1999. It was closed in September 2002.
At its peak, it accommodated nearly three times as many people as it was designed
for. Conditions in Woomera - physically and psychologically - were shocking.
Until public pressure forced some measure of improvement, a woman having her
period would have to queue for sanitary products. Children held in Woomera
typically developed enuresis: a colleague of mine described the haunting image
of a 12 year old Afghan girl wandering around aimlessly in the dust at Woomera,
wearing a nappy. On enquiry, it emerged that the child was incontinent from
the stress of detention. Desperate acts of self-harm were common. The use
of solitary confinement was common.
On several notorious occasions, detainees escaped from Woomera, only to be
recaptured shortly afterwards. They were charged with escaping from immigration
detention. The defence to those charges goes like this: detention under the
Migration Act is only valid so long as it does not constitute punishment.
It will constitute punishment if it goes beyond what is reasonably necessary
for the administrative purpose of processing a visa application and (if necessary)
removal from the country. Conditions in Woomera go beyond anything that could
be reasonably necessary for the purpose of visa processing and removal from
the country. Accordingly, detention in such harsh conditions is not detention
of the sort authorised by the Act, with the result that what they escaped
from was not "immigration detention" but some other, unauthorised,
condition.
In order to produce evidence of the conditions at Woomera, subpoenas were
issued to the Department of Immigration and ACM - the private prison operators
who run all of Australia's immigration detention centres. The Department and
ACM sought to have the subpoenas set aside.
Both the Department and ACM argued that the proposed defence could not succeed
as a matter of law. This involved the proposition that no matter how harsh
the conditions in Woomera might be, they were nevertheless lawful, and a court
could not interfere. Because of the way in which the question arose, the government
had to argue, and did argue, that even the harshest conditions of detention
imaginable would nevertheless be lawful.
Children in detention
The conditions in detention are characterised both by the hopelessness of
not knowing how long you will be there, and desperate uncertainty. This affects
children especially. People held in detention centres get moved around arbitrarily,
without warning. So that someone who is in Woomera today may be moved overnight
to Curtin which is 2000 km away. Children wake up and find that yesterday's
playmate has gone; and when they ask their parents "where has my friend
gone" their parents truly cannot answer. People simply disappear from
their lives with no explanation, and other people appear in their lives, likewise
with no explanation.
In February 2004, a case was argued in the High Court which put the proposition
that the indefinite detention of children could never be regarded as 'reasonably
necessary' to the administrative purposes of visa processing and removal.
Hence, it was argued, the mandatory detention of children offends the separation
of powers.
The case will be decided some time later in 2004.
The case of M38 - 'non-refoulement' cases
When a person has ultimately fails in their claim for a protection visa, the
Migration Act requires that they be "removed from Australia". In
practice, that often means that they will be returned to their country of
origin. At the present time there are approximately 200 Iranian asylum seekers
in Australia's detention centres who have been refused protection visas. A
number of those people live in genuine terror of the prospect of being returned
to Iran. The reason for their terror is not difficult to find. Many of them
have embraced Christianity, and apostasy is a very serious offence in Iran;
others of them belong to minor religious groups whose members are regularly
subjected to terrible treatment in Iran. Recent reports on conditions in Iranian
prisons make it clear that prisoners in Iran are treated with unrivalled cruelty:
torture is standard, disappearances and murders are common.
An Iranian, whose claim for asylum had been rejected, lives in fear of return
to these conditions. He applied to the court for orders preventing the Government
from returning him to Iran. The case theory was simple: the power to remove
a person from Australia does not go so far as allowing the Government to send
him to a place where he faces torture or death. The Government sought to strike
out the claim without a trial on the facts. When a party to litigation seeks
to strike out the claim on that basis, they assume all the alleged facts to
be true, and argue that those facts have no legal consequences. The Government
argued on the basis of facts which were to be assumed. Their argument was
this: it does not matter that he will be killed when he is returned; it does
not matter that he will be tortured when he is returned, nevertheless the
Government has the power and the obligation to return him to the place where
that will happen.
The government's view has prevailed. M38's claim was dismissed by a single
judge in May 2003; his appeal was dismissed by a Full Court in June 2003.
In the High Court on 10 December 2003, special leave to appeal was refused.
Thus Australia will become a murderer at one remove, a torturer's accomplice.
The Manus Island case
Aladdin Sislem was born a stateless Palestinian, to an Egyptian mother and
a Palestinian father. He was born in Kuwait. Kuwait will not allow them to
live there. Palestine will not allow him to live in Gaza or the West Bank
because he was not born there. Egypt will not allow him to live there. Since
1990 his family have been seeking permission to live in any country in the
world that they can get to, and no country will have them because they have
no country of their own.
Tiring of this lengthy wait, Mr Sisalem made his way to Jakarta where for
the next 12 months he waited while his application for asylum was considered
and then rejected. He went to Papua New Guinea where he applied for asylum
and was arrested, imprisoned and beaten up. He was found to be an illegal
entrant into Papua New Guinea. He bribed a fisherman to give him a ride across
to Saibai Island which is part of Australia and not yet excised from the migration
zone.
Mr Sisalem made his way to Saibai Island where he was intercepted by the
Australian Federal Police. He was unquestionably in Australian territory and
in the migration zone. He told them his story and he told them he had come
to Australia to seek asylum. They then took him off where DIMIA (the Department
of Immigration and Multicultural and Immigration Affairs) interviewed him.
He said why he'd come, and that he wanted to seek asylum. They then took him
to Thursday Island, another part of unexcised Australia, where he was interviewed
by the Manager of DIMIA on Thursday Island and said he wanted to seek asylum.
He was then part of a telephone hook up with Canberra where a DIMIA official
in Canberra took part in the conversation and he said he wanted to seek asylum
in Australia. They then took him, against his will, to a small aircraft and
said 'Your claim to asylum will be processed elsewhere'.
They then took him to Manus Island where he was locked up in the detention
centre, created under an agreement between Australia and Papua New Guinea,
run by IOM, paid for by Australian taxpayers. He was told he has no asylum
claim in Australia; that he had to deal with the Papua New Guinea authorities.
The government argues that Mr Sisalem has not got an asylum claim in Australia
because the only way you can seek asylum is by filling out form 866, and although
he said he wanted to seek asylum, he didn't ask for form 866: only if he fills
out form 866 does he have a valid application for a protection visa. Therefore
the Minister does not have any obligation to consider his claim for a protection
visa. And there's no point giving him a form 866 now, because they can only
be completed in Australia.
Section 256 of the Migration Act says that, on request, an officer must provide
an application form, advice about the availability of legal assistance and
facilities for making an asylum application. But it's on request you see.
And the Minister's submission on Monday morning, this Monday, in this country
was, 'Look, its true there's only one way to claim asylum and that's by filling
out form 866, but he only asked for asylum, and that's not the same as asking
for the form, therefore we had no obligation to give him the form'. And by
the same logic of course, if they changed the number of the form every week,
no one would ever be able to seek asylum because no one would ever know what
form to ask for, and DIMIA have no obligation to volunteer what form you should
ask for.
The Nauru case
The Pacific Solution debauches the Constitution of Nauru. That Constitution,
being a modern instrument, contains in it a guarantee that you will not be
detained except after a proper trial. In other words you can't be imprisoned
except by being found guilty of an offence. There are some limited exceptions
to that principle. The only one presently relevant is that you can be detained
without trial if you have entered the country unlawfully and you are being
held either for deportation or for extradition.
Now that exception simply can't operate in the case of the people who are
intercepted on the high seas and are dumped on Nauru.
Recently an action was begun in the Supreme Court of Victoria on behalf of
the remaining detainees on Nauru. The action seeks damages for false imprisonment.
The case questions the legality of the Pacific Solution. It offers the possibility
of inducing some movement in the government's stance, but these things are
hard to predict.
The government tried to strike the case out at the threshhold, but were refused.
This link will tell you more about the case: http://www.theage.com.au/text/articles/2004/01/23/1074732609655.html
***
[1]On internet find Migration Act at: http://scaletext.law.gov.au/html/pasteact/0/436/top.htm
[2]http://www.immi.gov.au/
[3]http://www.rrt.gov.au/
[4]76 Wash. U. L.Q. 243; Spring 1998
[5]"75. In all matters- ….(v) In which a writ of Mandamus
or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction."
***
***
Refugee Resources
Useful legal resources
Aust
Lawyers for Human Rights site
Refugee
research materials
University of Minnesota
Human Rights Library
U.
Minnesota Refugees Library
International resources and conventions:
Convention
on the Rights of the Child
ICCPR
Refugees
Convention
Torture Convention
UN
website
UNHCR
website
Country information:
Comprehensive country info from Uni.
Minnesota
(this library brings together country information compiled by human Rights
Watch, UNHCR and US State Department)
Afghanistan
; Women
in Afghanistan
Iran
; More about Iran
Human rights
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)
Level 8, 133 Castlereagh Street, Sydney
GPO Box 5218, Sydney NSW 1042, Australia
tel: (+61 2) 9284 9775
fax: (+61 2) 9284 9849
web: www.humanrights.gov.au
Links to other human
rights organisations
DIMIA
Melbourne (03) 9235 3901; fax (03) 9235 3948 fax (03) 9235 3973
DIMIA contact
details Australia-wide
GSL (Group 4):
www.g4f.com.au/
Administration
GSL (Australia) Pty Ltd; a subsidiary of Group 4 Falck Global Solutions now
runs Australia's detention centres.
Established in 1994 under the name of Group 4 Correction Services, GSL is
a wholly owned subsidiary of GSL UK Limited, which in turn is a wholly owned
subsidiary of Group 4 Falck. Group 4 Falck is based in Denmark and listed
on the Copenhagen stock exchange.
Level 16499
St Kilda Road
Melbourne Vic 3004
T 61 3 9864 4044
F 61 3 9866 8568
ww.gslpl.com.au
Detention Services
Suite 3: 03,
Phillips Fox Building
Canberra ACT 2601
T 61 2 6275 1500
F 61 2 6247 5280
Detention Centres
Baxter Immigration Detention Facility
ph; 08 8641 8902
(08) 8641-8934
Locked Bag 1
Port Augusta, SA, 5700
PO Box 2477
Port Augusta
SA 5700
Perth IRPC
Phone: (08) 9479 1257 & 9277 1914
PO Box 286
Belmont, W.A. 6984
Port Hedland IRPC
Phone: (08) 9173 2822
Fax: (08) 9173 2825
P.O. Box 377 (9am-10pm WA time) (9-5 Mon-Fri only)
Port Hedland, W.A. 6721
Dempster Street, Cooke Point WA
Maribyrnong IRPC
phone: (03) 9318 1999
53 Hampstead Street
Maidstone 3012
[visiting hours: 10am-11am; 2pm-4.30pm; 7pm-9pm]
Villawood IRPC
5 Miowera Road PO Box 413
Chester Hill Chester Hill
NSW 2162 NSW 2162
Christmas Island
Vagabond Road
Phosphate Hill
Christmas Island WA 6798
tel: 08 9164 8723
Nauru
Topside Camp,
Republic of Nauru,
Central Pacific
Migration Agents & legal support
Melbourne
Refugee and Immigration Legal Centre Inc. (RILC)
95 Brunswick Street, Fitzroy, Vic. 3065
Phone: (03) 9483 1144
Fax: (03) 9483 1136
rilc@rilc.org.au
Advice Line: 1-4pm Wed (03) 9483 1140
Asylum Seekers Resource Centre
267 Jeffcott Street,
West Melbourne 3003
phone: (03) 9326 6066,
Fax: (03) 9326 5199
asrc@start.com
Fitzroy Learning Network
198 Napier Street
Fitzroy 3065
03 9417 2897
http://www.fitzroylearningnetwork.org.au
Solicitor Erskine Rodan:
460 Victoria St
Nth Melbourne,
9329 8744
Adelaide
Refugee Advocacy Service South Aust (RASSA)
PO Box 54 Rundle Mall Adelaide 5000
08 8211 9097 08 8211 6955
rassa@rassa.org.au
Sydney
Refugee Advice Casework Service
Suite 8C, 46-56 Kippax St
Surry Hills NSW 2010
Tel: 02 9211 4001
Fax: 02 9281 8078
Australian Lawyers for Human Rights
Simon Rice
tel 02 9399 6153
mob: 0408 088 024
srice@zip.com.au
Public Interest Advocacy Centre (PIAC)
Level 1, 46-48 York Street
SYDNEY NSW 2000
DX 643 SYDNEY
Ph: (02) 9299 7833
Fax: (02) 92997855
Alexis Goodstone
agoodstone@piac.asn.au
Jesuit Refugee Service
Judy Hunt 02 9356 3888
judy.hunt@jesref.org
Brisbane
South Brisbane Immigration & Community Legal Service Inc
Boundary Chambers
Floor 1, 170 Boundary St
West End 4101
Ph: (07) 3846 3189
Fax: (07) 3844 3073
Support
Rural Australians For Refugees, Port Augusta:
Phone: 04 2198 3595
Hazara Association of Vic
PO Box 7268 Dandenong Vic 3175
Ph: (03) 9547 0849
Mobile: 0438 895 728
Fax: (03) 9792 0195
E-mail: hav2002@bigpond.com
SASH - Support for Asylum Seekers at Hearings
They accompany asylum seekers to hearings, DIMIA interviews, hospital appointments,
and other occasions likely to be stressful
Contact Margaret Howse 03 9380 5892 or 0400 812 183
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