Australian Immigration Daily News

I think it is safe to say that there are many people who are greatly troubled by Australia’s current policies for dealing with so-called “illegal maritime arrivals”, or “asylum-seekers”.  

Is it really consistent with international humanitarian standards for Australia to hold people in what news reports have described as squalid, unsanitary and miserable conditions for years on end while their claims of refugee status are “processed”? I don’t think it is!!!! We are now in the midst of what has been called the greatest refugee crisis since World War 2, with 60 million people desparately seeking to escape wars and persecution. Yet we don’t see the governments in Europe putting people in detention!

Speaking purely for myself, there is something terribly wrong with this picture.  And as someone who is a migrant to Australia himself, and who comes from a family where ancestors were fortunate enough to escape from war and persecution, I have the greatest sympathy for refugees who find themselves in detention.

These thoughts are prompted by the High Court case that is the topic of today’s article.

The case – Minister for immigration and Border Protection v WZARH (2015) HCA 40 (4 November 2015) involved a challenge to the procedures that the Department followed in reviewing the case of an “asylum seeker”. The High Court found that the way that the Department had “assessed” the asylum seeker’s claims that he feared persecution in his home country were flawed and had denied the asylum seeker the “procedural fairness” to which he was entitled.

The case involved a Sri Lankan man of Tamil ethnicity who arrived in Australia by boat at Christmas Island in November 2010.  Upon his arrival, the man was taken into immigration detention.  Under the law as it stood at the time, he was prevented from applying for a Protection Visa. 

The man initially requested (in January 2011, two months after his arrival by boat) that a Refugee Status Assessment be conducted to determine whether Australia had protection obligations to him under the Refugees Convention. He claimed that he feared harm at the hands of the Sri Lankan authorities because of his Tamil ethnicity, his perceived support of the “Tamil Tigers” and his history of having campaigned in Sri Lanka for a particular politician.

In the first instance, a delegate of the Minister made an adverse assessment of the man’s claims to refugee status. This determination was made in April 2011.

The man then sought an Independent Merits Review of the Refugee Status Assessment.

He was then interviewed by an “independent merits reviewer” in January 2012 (more than a full year after his arrival!).  During this interview, he was told that the reviewer would conduct a fresh rehearing of his claims and would then make a recommendation to the Minister as to whether he should be found to be a refugee.

What then occurred was that the Departmental officer who had interviewed the man “became unavailable” to complete the Independent Merits Review.  Exactly why this occurred is not explained in the High Court’s judgment.

The case was then assigned to a second “reviewer”.  This reviewer did not interview the man again. Instead, the reviewer made an assessment of the case based on a consideration of transcripts of an interview that had initially been conducted on Christmas Island and the interview that had been conducted by the first independent merits reviewer, as well as a recording of that interview by the first merits reviewer.  

Based on this material, the second reviewer formed an adverse view of the man’s credibility. The reviewer rejected the man’s claims concerning his association with a particular Sri Lankan politician, and concluded that there was no real chance that the man was likely to be persecuted on the basis of his political opinions. Accordingly, this second reviewer determined that the man did not meet the criteria for the grant of a Protection Visa and should not be recognized as a person to whom Australia owed protection obligations under the Refugees Convention.

It was of critical importance to the ultimate decision made by the High Court that the man was not told that a recommendation to the Minister concerning his case would not be made by the same independent merits reviewer who had originally interviewed him, but that instead the decision would be made by a second reviewer who would decide the case only on the written record without conducting a further personal interview.

The man sought judicial review of the Deportment’s refusal to grant him refugee status in the Federal courts.  The basis of his claim was that it had been procedurally unfair for the second independent merits reviewer to decide his case without conducting a further personal interview. He claimed that because this reviewer had not interviewed him, the reviewer had not “sighted” scars which he said were evidence of torture.

The application for judicial review was dismissed by the Federal Circuit Court.  However, the judicial review application was successful both before the Full Court and in the High Court. In fact, the High Court decided the case in favour of the man by a vote of 5 – 0 (3 judges in the majority and 2 judges concurring in a separate judgment).

In their written opinion, the 3 judges who formed the majority observed that the outcome of the case might very well have been different if the second independent merits reviewer had interviewed the man personally rather than deciding on the basis of transcripts and recordings of prior interviews. The majority noted that the second reviewer might have formed a different view of credibility of the asylum seeker’s claims of persecution if a further interview had been conducted.  The Court thus concluded that information that had been available to the first independent merits reviewer concerning the man’s demeanour when he was interviewed was not fully reflected in the recommendation of the second merits reviewer (that the man be denied refugee status).

The majority of the High Court ruled that the process that had been followed by the Department in determining the man’s application for refugee status had been unfair.

The majority ruled that the man should have been given an opportunity to be heard concerning the way that the process of reviewing his case would be completed, so that he would not be disadvantaged by changes in the process. The High Court held that because the man had not been told that the first reviewer who had interviewed him would not be making the recommendation as to whether he qualified for refugee status, the man had been effectively denied the opportunity to request that a further personal interview be conducted by the second reviewer to whom his case had been transferred.  

The outcome in this case illustrates that one of the fundamental principles of Australian migration law is that an applicant must be accorded “procedural fairness”.

When the right to procedural fairness is denied, a finding will be made that jurisdictional error has occurred.  The decision that has been made will be “quashed” – effectively “overturned”.

Surely, one would hope that the Department will learn a lesson from this case, and will in the future avoid practices where an asylum seeker’s case is handed off from one officer to another, with the second officer failing to take the proper steps to assess the merits of the asylum seeker’s claims of persecution.  After all, the review of a claim for refugee status should be far more than a bureaucratic “paper exercise” that resonates of Kafka – the future, safety and security of another person is at stake in these decisions!

What do you think? Add your comments below!

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