REVIEW OF REFUGEE DETERMINATION DECISIONS
- THE JURISDICTION
- THE POWERS OF THE RRT
- THE APPEAL PROCESS
- THE HEARING
- THE DECISION OF THE RRT
- JUDICIAL REVIEW
1. THE JURISDICTION
The Migration Act (1958) establishes a class of visas known as ‘Protection Visas. S36 sets out the definition of a protection visa. Australian law has adopted the definition of refugee found in article 1(C) of the 1951 Convention as amended by the 1968 protocol. The definition is found in the 1951 UN Convention and 1967 Protocol relating to the Status of Refugees.
“A refugee is someone who 'owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
There are two subclasses of Protection visas:
- Subclass 785 Temporary Protection Visas
- Subclass 866 Permanent protection Visas
The Minister delegates his power to determine protection visa applications to officers of DIMA.
The Migration Act (1958) sets out the Review of Protection Visa decisions in Part 7 of the Act.
The Refugee Review Tribunal (RRT) is established as the body for review of Protection visa decision, both subclass 785 and 866. The RRT is established under Division 9 of the Migration Act (1958).
The RRT can also consider an application to be considered under Article 1A of the Refugee Convention by a ‘transitory person’ under s198C
The jurisdiction of the RRT is set out in s411 and it includes decisions to refuse or cancel Protection visas:
s412 sets out the requirements of an RRT-reviewable decision.
It is important to note the time limits that cannot be extended in any circumstances. There is no jurisdiction to review a decision if an applicant is not in the Migration Zone when the decision is made.
Reg 4.31 provides for appeals from detention cases to be lodged within 7 working days of notification of the delegate’s decision.
S494C deems DIMA notification 7 days from the date of the decision.
Application process to RRT
- Applications must be lodged within prescribed times, no extension is possible
- Application forms must contain a contact address for an applicant
- If more than one applicant, then add all to the appeal form (ie: dependents)
- Appeals may be faxed to the RRT
The validity of the RRT reviewable decision is a decision that ought be made by a Tribunal member. The Tribunal has no jurisdiction to consider an appeal lodged outside the time period. Lee v MIMIA [2002] FCAFC 305 (4 October 2002)
Communication between Tribunal and applicant/advisor
- Communication between a member and an advisor/applicant ought normally be in writing.
- If not in writing, ought be tape recorded or in the presence of a staff member of the Tribunal (Practice Directions)
Whilst an advisor does not have a right to appearance before the Tribunal, in practice advisors are allowed to present at a hearing. Normally oral submissions by an advisor are at the end of a hearing. Some members will invite an advisor to comment if further issues need to be addressed or questions asked of the applicant.
RRT fee
Reg 4.31B prescribes the RRT at $1000 for applications lodged after 1 July 1997 and before 1 July 2001. The fee is not payable if the RRT set aside a decision, or if the case is remitted from the Federal Court. The fee can also be waived if the Minister intervenes under s417 (Reg 4.31C).
2. THE POWERS OF THE RRT
The powers of the RRT are set out in s415.
The Minister has a non-compellable discretionary power to substitute a more favourable decision to an applicant under s417. The Guidelines for this are set out in MSI 225
Division 3 deals with the Exercise of the RRT’s powers. S420 deals with the exercise of powers and this was subject to judicial review in Eshetu v MIMA(1999)162 ALR 577
The Principal member of the RRT may give directions regarding the operations and conduct of reviews by the RRT. (420A) The current practice directions can be found on the RRT website (rrt.gov.au/practice).
Normally, the RRT is constituted by a single member (s421). The Principal member can reconstitute the Tribunal under s422 where a member is unavailable and s422A for efficient conduct of the review. Delay in making a decision will not necessarily give rise to reconstitution of the RRT.
3. THE APPEAL PROCESS
Division 4 sets out the Conduct of a review. Applicants may provide a statutory declaration of their claims and other written submissions. (s423)
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PRACTICE TIP
In practice, it is better to present an applicant’s claims in the form of a statutory declaration in chronological order with numbered paragraphs. This enables cross-reference to particular claims more easily and also provides a readable case for a member.
Written submissions that address the criteria for a refugee application, country information and any relevant legal issues ought be separate from the statutory declaration. It is important to identify the Convention nexus and address issues such as effective protection in a third country or relocation issues.
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The RRT may seek additional information (s424) or invite a person to give evidence. Commonly the RRT will refer to country information on the CISINFO database. This includes DFAT reports, reports from Human Rights Groups, news clippings, US State Department reports, expert opinions or any other objective source.
The RRT can also have regard to other files such as a visitor visa application or information that is personal to an applicant that is available to the RRT on a Departmental file.
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PRACTICE TIP
It is important for practitioners to be aware of all documents on their client’s file. Copies of the file (RRT and DIMA) can be obtained through Freedom of Information (FOI) provisions. FOI is also available to obtain copies of country information cited by the delegate in the DIMA decision.
It is best to make the FOI applications at the same time as lodging the RRT decision or as soon after as possible. DIMA FOI applications must be dealt with by DIMA so the files are returned to DIMA for processing. There may be a fee for FOI but the FOI Act provides that it is possible to waive the fee. This is commonly done for cases in detention or where there is financial hardship.
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In some cases, an application must be given certain information under s424A. Replies to adverse information in s424A ought be made within the time frame provided or the Tribunal may move to a decision (s424C). It is possible to obtain an extension of the time to respond.
Request to provide further information
- If at hearing (interview) then within 28 days of notification if in community or 14 days if in detention (Reg 4.35A)
- Written response can be extended to 28 days if information in Australia or 70 days if information is obtainable outside Australia
4. THE HEARING
The applicant must be invited to appear unless the RRT can move to set aside a decision on the papers. (s425) The invitation to appear is set out in a Notice that sets out the consequences of failure to appear: namely, the RRT can then move to a decision. (s425, s425A and s426A).
The RRT will provide an interpreter and the hearing will be tape-recorded. Applicants or advisors can request a copy of the hearing tape at the end of a hearing.
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PRACTICE TIP
At the end of a hearing, it is useful to clarify with the presiding member what issues they would like to hear submissions on or have you provide further submissions. This will enable you to focus on the issues which are adverse to your client. There is no right to do this but it is common practice at the RRT.
A focused submission which addresses particular issues is more effective than a ‘shotgun’ submission on everything.
Commonly submissions will need to address such things as credibility or specific items of country information. Sometimes they will need to address legal issues such as effective protection, alternative rights of residence or the Convention nexus (a particular social group is the most nebulous)
If it is intended to make further submissions, then ask for a copy of the hearing tape. It is often useful for applicants to listen to the tape again to check for errors. If there are some doubts about the accuracy of the interpreting, then get the tape checked by a qualified expert. Clients are sometime reluctant to complain about an interpreter in front of the interpreter.
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An applicant may request evidence be taken from witnesses but the RRT is not obliged to take evidence from these witnesses (s426(3)).
Witnesses may provide evidence to the RRT in the form of a statement or statutory declaration before the hearing.
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PRACTICE TIP
It is good practice to supply witness statements in the form of a statutory declaration of that witness. That ensures the evidence is before the RRT and therefore must be considered.
PSYCHOLOGICAL AND MEDICAL EVIDENCE
It is rare for the RRT to require medical or psychological examinations as this then requires the RRT to pay for the report. More commonly, applicants will seek their own reports and submit them to the RRT.
It is good practice to obtain supporting psychological evidence for applicants who are victims of torture or trauma. This is for several reasons:
- Such cases will get priority
- Expert reports can help establish credibility
Torture and trauma victims can be very bad witnesses for themselves. They can be vague, contradictory, evasive and even not give direct answers on their experiences.
Without an independent report, such evidence may be assumed to reflect adversely on the credibility of an applicant so an expert report may help get around adverse credibility issues. This is not to say that this will work every time, however, the RRT is realistically the last opportunity for an applicant to have their case considered so it is important that all available evidence is presented to the RRT.
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The RRT may require an applicant to undergo medical examinations (s427), or summon a person to appear before the RRT and produce documents.
RRT reviews are in private (s429) and it is possible to take oral evidence by telephone (s429A) or video link ups. This is commonly done for cases in immigration detention in Western Australia or for applicants in other states. The RRT is established in Sydney and Melbourne only, however it does sometimes go on circuit to the detention centers in Port Hedland and Woomera.
If you wish to be linked up by telephone because you are not in the place of hearing, then sufficient notice ought be given to the Tribunal to facilitate such an arrangement. There is not right for an adviser to be at a hearing.
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PRACTICE TIP
Advisors do not a have a right of appearance at a hearing, so you appear with leave of the Tribunal. This is usually given and no formal application need be made.
Whilst it is a matter for instructions, and maybe cost whether you attend a hearing, it is often of benefit to attend a hearing. This will provide an opportunity to be apprised of adverse material or credibility issues. Sometimes, they can be addressed through oral submissions, or by referring the Tribunal to another part of a statement or evidence that the Tribunal may not appear to have considered.
Whilst constant interruptions of the Tribunal are to be avoided in most cases, it may be appropriate where the Tribunal seems to have forgotten what is on evidence, or misheard an answer.
In rare occasions, it may be appropriate to intervene where it appears an applicant is being ‘badgered’ by the Tribunal. Such interventions are strategic and experience will show when it is best to intervene or to not intervene.
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If your client is interstate and the hearing is to be conducted by a video linkup with the RRT in another State, then you can ask to be connected by a telephone link-up at the RRT.
5. THE DECISION OF THE RRT
Division 5 sets out provisions relating to the Decisions of the RRT. The RRT must provide a written decision in accordance with s430.
This was considered in the High Court in two cases MIMA v Israelian (M64/1999) and MIMA v Yusuf [2001]HCA30.
The High Court ruled that the RRT must consider all the material and relevant material and failure to do so can be an error under s476. There is also the possibility of ‘jurisdictional error’, as outlined by Gummow J in Eshetu.
It is possible for the RRT to make oral decisions, though such decisions must be provided in writing within 14 days (s430D). This is not commonly done as the RRT usually reserves its decision.
In cases not in detention, the RRT must invite the parties to a formal handing down of the decision (s430A). If an applicant or their representative does not attend a handing down, then the decision will be posted to the applicant and their nominated representative.
The handing down is not done by the member making the decision, but by a senior officer of the RRT. Usually, the officer will state whether the decision is affirmed or set-aside and then give a copy to the applicant and their representative if they are there. Handing downs are usually done on afternoons in Sydney. The process is quite quick.
The RRT can publish decisions however all identifying features must be removed. Only about 10% of decisions are published. The RRT also publishes a Bulletin of decisions and this is available on their website or may be purchased from the RRT. The Bulletin provides a list of recent decisions by country with case notes on the decision.
Methods of dispatch of documents
The RRT can dispatch documents in the methods prescribed in s441A. This is by post or fax to the last known address. It is important for clients to provide their current address to the RRT so as to avoid the risk of failing to receive notices of hearings or s424A notices.
Referral to the AAT
The RRT may refer matters involving an important principle to the Administrative Appeal Tribunal (AAT). Only one case has been so referred, the East Timorese case or SRPP [2000]AATA 878.
The AAT Act applies for such reviews however there are modifications of the AAT Act set out in ss447, 448, 449, 450, 451, 452.
6. JUDICIAL REVIEW
Part 8 of the Migration Act covers judicial Review of RRT decisions. The Constitutional validity of Part 8 was upheld by the High Court in Abebe v MIMA (1999)162 ALR1.
www.rrt.gov.au - Refugee Review Tribunal
Kerry Murphy © May 2003