Pro-Bono Refugee Law and Practice: The Barrister’s Role

Introduction

Practitioners who first enter the field of migration law — whether pro bono or paid — are quickly daunted by the sheer scale of the statutory scheme. The Migration Act 1958 (Cth) is close to 900 pages long. The Migration Regulations 1994 (Cth) comprise 7 volumes totalling some 1,400 pages. Both are amended with staggering regularity, prompting one Federal Court judge to describe the scheme as a “legislative monster”.

Yet, one can undertake judicial review of refugee and humanitarian cases without needing to comprehend the whole of the scheme. The aim of this paper is to give some guidance about which aspects are immediately relevant, and to provide a starting point for the making of further inquiries as and when the need arises.

Overview of the Statutory Scheme

Protection obligations

The Migration Act and the Migration Regulations codify the law in relation to the grant, refusal and cancellation of visas. The statutory scheme is such that every person in Australia who is not an Australian citizen must hold a valid visa in order to be lawfully present in Australia.¹ A non-citizen who is present in Australia without a valid visa must be detained and then removed from Australia as soon as reasonably practicable.²

Section 36 of the Migration Act provides for a class of visa known as a “protection visa”. Broadly speaking, applying for a protection visa is the mechanism by which persons in Australia seek the protection of the Australian Government on the basis that, if they are returned to their country of origin, they are at risk of being subjected to persecution or significant harm.

Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is:

“(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;…”

The Migration Regulations contain additional criteria that must be satisfied before a person can be granted a protection visa. However, in judicial review applications, the focus is almost exclusively on the criteria in s 36(2) of the Act.

Under the first limb of s 36(2), the Minister must be satisfied that Australia has protection obligations to the person under the 1952 Convention Relating to the Status of Refugees (“the Convention”) as amended by its 1967 Protocol. In essence, the Minister must be satisfied that the person comes within the definition of “refugee” in Article 1A of the Convention, being a person who:

“…owing to a well founded fear of being persecuted on grounds 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 his country of residence as a result of events, is unable or owing to such fear, is unwilling to return to it”.

That definition is, however, subject to modifications contained in the Migration Act: see s 91R in relation to the meaning of “persecution”, and s 91S in relation to “membership of a particular social group”.³

The second limb of s 36(2), which came into effect on 24 March 2012, is known as “complimentary protection”. It is designed to cover, at least in part, the situation where a person is at risk of harm but cannot demonstrate the required causal nexus between the harm feared and one of the grounds set out in the Convention (race, religion etc.). The complimentary protection regime operates where the person is at risk of suffering “significant harm” constituted by arbitrary deprivation of life, facing the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment: s 36(2A).⁴

The definition of refugee in the Convention and the concomitant modifying provisions of the Migration Act are the subject of a substantial body of case law. In contrast, the scope of the complimentary protection regime is yet to be judicially explored.

Who can apply

The Migration Act differentiates between persons who arrive in Australia as the holder of a valid visa (eg. tourist visa, student visa) and those who do not.

For the first group, the process is relatively straightforward. A person can simply lodge an application for a protection visa,⁵ which is processed at first instance by officers of the Department of Immigration and Citizenship (“the department”) as delegates of the Minister. If the application is refused, the person has a right of full merits review to the Refugee Review Tribunal (“the Tribunal”).⁶ If the Tribunal affirms the decision of the delegate, the Migration Act provides for limited rights of judicial review. This is discussed in more detail below.

For the second group, there is a significantly more complex web of statutory provisions. Essentially, if a person comes to Australia without a valid visa, their ability to apply for a protection visa will depend upon whether they are first intercepted by Australian authorities at a location known as an “excised offshore place”. That term is defined in s 5 of the Migration Act” and basically means those parts of Australian territory which are deemed to not form part of the “migration zone” for the purposes of the Migration Act.⁷ Currently, excised offshore places include Christmas Island and Ashmore Reef.⁸ Recent announcements by the Minister indicate that the whole of the Australian mainland is soon to be included in that list.

A person who enters Australia at an excised offshore place without a valid visa is classified as an “offshore entry person”.⁹ An offshore entry person is precluded from applying for a visa of any kind unless the Minister exercises a non-compellable personal discretion under s 46A of the Migration Act to “lift the bar” and allow an application to be made. The relevant legislative framework is described by the High Court in detail in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (“M61”).

Up until 24 March 2012, the Minister had put in place what was called a “non-statutory process” for determining whether he should exercise his discretion under s 46A of the Migration Act. That process consisted of an officer of the department undertaking an initial assessment of whether the person is someone to whom Australia would owe protection obligations and, if that assessment was negative, a review was then undertaken by an “Independent Merits Reviewer” (now known as an “Independent Protection Assessment Reviewer”). Independent reviewers were private contractors, not officers of the department. If the independent reviewer assessed or recommended that the person was owed protection obligations, the case would be referred to the Minister for formal consideration. In practice, a positive assessment by the independent reviewer inevitably led to a decision by the Minister to lift the bar so as to permit the person to lodge an application for a protection visa.¹⁰

The main purpose in channelling offshore entry persons into a “non-statutory process” was to curtail, or at least limit, any avenues for judicial review. However, in M61, the High Court found that the “non-statutory process” did, indeed, have a basis in statute (being the Migration Act). As a consequence, the “well established principles” governing the exercise of statutory power were applicable, including the common law rules of procedural fairness: at 351-353 [73]-[75].

Because the effect of the decision in M61 was that there was no longer any meaningful difference between the judicial review rights of offshore entry persons and persons who had simply applied for a protection visa in the first place, the Minister announced on 24 March 2012 that he would no longer be utilising the independent reviewer process. Rather, he would simply exercise his discretion to permit offshore entry persons to apply for a protection visa in the usual way, such that their applications would be assessed by the department and, if rejected, on review by the Refugee Review Tribunal.

On 13 August 2012, the Minister announced a cessation of the above practice, and a return to the “non-statutory process” of using independent reviewers.

Jurisdiction of the Courts in Relation to Protection Decisions

General comments

Only the High Court and the Federal Magistrates Court have jurisdiction to entertain applications for judicial review of decisions relating to protection visas.¹¹

The High Court’s jurisdiction is found in s 75 of the Commonwealth Constitution. Importantly, s 75(v) invests the High Court with original jurisdiction to hear all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Although s 75(v) does not refer to a writ of certiorari, it has long been accepted that certiorari may issue as ancillary to the constitutional writs of mandamus and prohibition.¹² Where the writs are available, mandamus compels the performance of a public duty; prohibition prevents a decision or order from being made; and certiorari enables the quashing of the impugned order or decision.

Otherwise, Part 8 of the Migration Act deals with judicial review. All judicial review of decisions relating to protection visas (other than by the High Court) takes place under this Part.¹³ Section 476(1) provides that:

“Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.”

The term “migration decision” is defined in s 5 of the Migration Act to mean:

(a) a “privative clause decision”; or

(b) a “purported privative clause decision”; or

(c) a “non-privative clause decision”.

Each of the above terms is defined in the Migration Act. For present purposes, the key definition is “privative clause decision”, contained in s 474(2) as follows:

“privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…”

Section 474(1) contains the archetypal privative clause, and provides that:

“A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

Despite the language of the above provision, it is now well established that s 474(1) of the Migration Act will not operate to prevent the court exercising the jurisdiction to review privative clause decisions if the decision under consideration can be said to have been vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The concept of jurisdictional error is discussed below.

Jurisdiction to review decisions of the Refugee Review Tribunal

Decisions of the Tribunal are privative clause decisions and therefore reviewable by the Federal Magistrates Court under s 476(1) of the Migration Act (provided an applicant can demonstrate jurisdictional error by the Tribunal). Members of the Tribunal are also officers of the Commonwealth for the purposes of s 75(v) of the Commonwealth Constitution and therefore amenable to the constitutional writs. However, any proceedings commenced in the High Court which could have been commenced in the Federal Magistrates Court will be remitted: s 476B of the Migration Act.

Section 477 of the Migration Act prescribes that applications for judicial review of a Tribunal decision must be filed in the Federal Magistrates Court within 35 days of the date of the migration decision.¹⁴ However, the Court does have a discretion to extend that time period if:

(a) an application for an extension of time has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

Applications for an extension of time are usually heard and determined at the same time as the substantive application for review.

The Minister for Immigration and Citizenship must be made a party to the application: s 479. The Tribunal must also be a party for the purposes of the Court granting relief (eg. quashing the Tribunal’s decision and remitting it to be decided in accordance with law15] ). In practice, the Tribunal files a submitting appearance and the Minister acts as the sole contradictor in the proceedings.

Jurisdiction to review assessments or recommendations of an independent reviewer

The assessment or recommendation of an independent reviewer is not itself a “migration decision” within the meaning of s 476(1) of the Migration Act because it does not satisfy the description of a privative clause decision. That is, it is not a decision of an administrative character made under the Migration Act: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 (“SZQDZ”) at [29], [39] per Keane CJ, Rares and Perram JJ.

The only “migration decision” capable of attracting the jurisdiction of the Federal Magistrates Court under s 476(1) is the future or proposed decision of the Minister to lift the bar (or not) pursuant to s 46A of the Migration Act [16] : SZQDZ at [45], DZABS v Minister for Immigration and Citizenship (2012) 261 FLR 447 at [61] per Lindsay FM.

That raises the issue of the appropriate relief. Since the Minister has not yet made a decision, there is no decision to quash. And since the Minister’s discretion under s 46A is non-compellable, mandamus cannot issue to compel the Minister to make a decision under that section. Nevertheless, declaratory relief and possibly an injunction are appropriate remedies to ensure that the Minister understands that an assessment or recommendation by an independent reviewer is affected by demonstrable error if the Minister was otherwise minded to act upon it: M61 at [99]-[104], SZDQ at [44].

A declaration is not one of the remedies available under s 75(v) of the Constitution and consequently cannot ground the Court’s jurisdiction under s 476(1) of the Migration Act, but an injunction can. Accordingly, the jurisdiction of the Federal Magistrates Court is enlivened if an application is made under s 476(1) of the Migration Act for an injunction to restrain the Minister from relying upon the independent reviewer’s assessment or recommendation. Once seized of jurisdiction, the Federal Magistrates Court has statutory capacity to make a declaration of right in respect of the same matter pursuant to s 16(1) of the Federal Magistrates Court Act 1999 (Cth): WZAQB v Minister for Immigration [2012] FMCA 688 at [32] per Lucev FM. It is through this mechanism that the Court declares the error or errors made by the independent reviewer.

Importantly, because no decision has yet been made by the Minister, the time limit prescribed by s 477 of the Migration Act to bring an application for review (35 days from the date of the migration decision) has no application: SZQDZ at [27]. To be clear, there are no time limits applying to an application to judicially review (in effect) the assessment or recommendation of an independent reviewer.

GROUNDS OF REVIEW

As discussed earlier, the privative clause in the Migration Act is ineffective to oust judicial review for jurisdictional error. Accordingly, at least where review of Tribunal decisions is concerned (the situation may differ in relation to independent reviewers), the task is always to identify an error of law that can properly be characterised as a jurisdictional error.

In Plaintiff S157/2002, the High Court did not need to consider what errors of law amounted to jurisdictional errors other than to accept that a breach of procedural fairness under the Migration Act would be an error going to jurisdiction. In the intervening years, however, there have been literally thousands of applications for judicial review of migration decisions prosecuted in the courts. The sheer volume of cases does not permit either a comprehensive or even thorough cataloguing of the kinds of errors that have been found to constitute jurisdictional error if committed by an administrative tribunal (as opposed to an inferior court). The list that follows is, accordingly, illustrative only. What can be said with certainty is that the “jurisdictional error” referred to in Plaintiff S157/2002 encompasses jurisdictional error in the broader sense identified in the seminal statement found in Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 179.

The following species of error have been recognised as amounting to jurisdictional error on the part of administrative tribunals and decision makers:

(a) a breach of procedural fairness [17] (care is needed in relation to the Refugee Review Tribunal due to s 422B of the Migration Act — however, see Minister for Immigration and Citizenship v Li (2012) 202 FCR 387);

(b) apprehended bias [18] ;

(c) identifying a wrong issue [19] ;

(d) asking itself a wrong question [20] ;

(e) failing to take into account a relevant consideration [21] ;

(f) taking into account irrelevant considerations [22] ;

(g) misconstruing a statutory provision [23] ;

(h) applying a wrong test [24] ;

(i) failing to comply with a procedural requirement prescribed by the statute [25] ;

(j) failing to consider an applicant’s claims as made [26] , or an “integer” of the applicant’s claims [27] ;

(k) failing to consider an unarticulated claim that was raised “squarely” on the material although not expressly advanced by the applicant [28] ;

(l) unreasonableness, illogicality or irrationality in decision-making such that the conclusion reached by the decision-maker was not reasonably open on the evidence [29] ;

(m) fraud “on the tribunal” by a non-party [30] ;

(n) exercising a statutory power for a purpose other than that for which it was conferred [31] .

The merits of the decision, and findings of fact, cannot be challenged in judicial review applications. Accordingly, the following are not jurisdictional errors:

(a) the decision-maker found the applicant’s evidence to be “implausible” or otherwise not credible [32] ;

(b) the decision maker made a wrong finding of fact [33] ;

(c) the decision maker failed to give sufficient weight to an aspect of the applicant’s evidence [34] .

The line is not always easy to draw: see for example Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 at [44] per Wilcox and Marshall JJ; WAFP v Minister for Immigration and Multicultural Affairs [2003] FCAFC 310 at [18]-[21] per Lee, Carr and Tamberlin JJ; SZQGA v Minister for Immigration and Citizenship (2012) 128 ALD 303 (“SZQGA”) at [155], [158] per Barker J.

Finally, where the subject of the judicial review application is (indirectly) the assessment or recommendation of an independent reviewer, and consequently the relief sought is an injunction and declaration rather than orders in the nature of the constitutional writs, a recent decision of the Federal Court (hearing an appeal from a decision of the Federal Magistrates Court) has found that there is no need to identify a jurisdictional error in order to allow the review. An error of law will suffice: SZQGA at [145]. At least one Federal Magistrate has adopted that approach: WZAPH v Minister for Immigration [2012] FMCA 773 at [48]-[50] per Lindsay FM.

The distinction may not matter if the alleged error law is capable of constituting jurisdictional error in any event.

PROCEDURE IN THE FEDERAL MAGISTRATES COURT

Part 44 of Chapter 6 of the Federal Magistrates Court Rules 2001 (“FMCR”) deals with proceedings under the Migration Act. Chapters 1 and 3 of the FMCR continue to apply to migration proceedings in so far as they are relevant and not inconsistent with Part 44: r 44.03.

From a procedural perspective, applications under the Migration Act are generally straightforward. There are very few interlocutory steps.

An application must be made in accordance with the approved form: r 44.05(1). A copy of the approved form for migration applications is attached to this paper. It is quite directive in terms of identifying the necessary parties and the nature of the relief sought.

The most important task for a barrister is to identify and draft the grounds of review relied upon to obtain the relief sought. Although styles will vary as to how much particularity should be provided, one should never underestimate the possibility that the respondent will concede an application for review if the grounds in the application disclose a clear case of jurisdictional error.

The application must be supported by an affidavit which annexes a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision: r 44.05(1).

The principal (and usually only) evidence placed before the Court is a Court Book prepared by the Minister, which contains a copy of the relevant departmental, Tribunal and/or independent reviewer file.

It is rare for an applicant to file any evidence since it is not permissible to tender fresh evidence going to the merits of a case: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J. However, if the applicant alleges a breach of procedural fairness and the conduct constituting the breach is not apparent on the face of the reasons for the Tribunal’s decision or independent reviewer’s assessment, the applicant may need to file a transcript of the Tribunal hearing (or interview with the independent reviewer) in order to establish the factual basis for the ground of review. In practice, that evidence need not be filed at the same time as the application for review (notwithstanding r 44.05(2)(b)).

When an application is filed in the Court, a directions hearing will be scheduled for a date approximately six weeks later. This allows sufficient time for the respondent Minister to be served with the application and to file a Response pursuant to r 44.06 of the FMCR.

There is usually only one directions hearing and a date for the final hearing of the matter is allocated at that time. In addition, the Court will make directions in relation to:

(a) (if relevant) whether an application for an extension of time should be heard separately or at the same time as the substantive application;

(b) (if relevant) whether any objection to competency made by the respondent should be heard separately or at the same time as the substantive application;

(c) the filing and service of the Court Book by the respondent Minister;

(d) leave to make any amendments to pleadings;

(e) filing and service of any affidavits by either party;

(f) the delivery of written submissions in advance of the hearing (usually 14 days prior for the applicant, 7 days for the respondent).

CERTIFICATION OF MIGRATION PROCEEDINGS

Section 486I of the Migration Act provides that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.

In practice, the certification is made by the instructing solicitor. However, a barrister’s advice on prospects of success may be sought before a solicitor is prepared to give that certification.

Although an error of law is often apparent from the reasons for the Tribunal’s decision (or independent reviewer’s assessment), sometimes it is not possible to make a proper assessment of merits until after the Court Book is available (which will include all of the material before the Tribunal/independent reviewer) or a transcript of the Tribunal hearing is obtained.

In those circumstances, to ensure that time limits are not breached, it may be necessary for the applicant to file an application for review in the meantime to protect his or her rights. An application for leave to amend the application can be made at a later date — preferably at the directions hearing.

Nitra Kidson

Footnotes

1. Migration Act, ss.13 and 14.
2. Migration Act, ss 189 and 198.
3. There are also certain exceptions to a person being owed protection obligations even if they otherwise come within the Convention definition: see s 36(3)-(5) of the Migration Act. The Convention itself provides for certain exclusions, for example, if the person has committed war crimes or a serious non-political crime (Article 1F).
4. As with the first limb, however, there are exceptions: see s 36(2B), (2C), (3), (5) of the Migration Act.
5. Although not necessarily repeat applications: ss 48A and 48B of the Migration Act.
6. Part 7 of the Migration Act deals with review by the Refugee Review Tribunal.
7. The term “migration zone” is defined in s 5 of the Migration Act to mean the area consisting of the States, the Territories, Australian resource installations and Australian sea installations.
8. For a full list, see the definition in s 5 of the Migration Act and also regulation 5.15C.
9. See the definition of “offshore entry person” in s 5 of the Migration Act.
10. Or alternatively, to simply grant a visa under s 195A of the Migration Act.
11. The Federal Court only has jurisdiction in relation to migration decisions in one of the circumstances prescribed by s 476A of the Migration Act, which does not include decisions in relation to protection visas (except in the limited case of a protection visa being cancelled on character grounds).
12. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90-91.
13. Neither the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) nor s 39B of the Judiciary Act 1903 (Cth) has any application to these decisions: see ADJR Act, schedule 1, paragraphs (da) and (db); Migration Act, s 476A(1).
14. For decisions of the Refugee Review Tribunal, the “date of the migration decision” is the date that appears on the written statement of the Tribunal’s reasons for decision: s 477(3).
15.   SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [42]-[43] per McHugh J, [91] per Gummow J, [155] per Kirby J, [180] per Hayne J.
16. Or to grant a visa directly under s 195A. However, a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under s 195A, is expressly excluded from the jurisdiction of the Federal Magistrates Court: ss 476(2)(d) and 474(7).
17. Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.
18. SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281 at [20]; SZQHH v Minister for Immigration [2011] FMCA 740.
19. Craig, at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at 351.
20. Craig, at 179; Yusuf, at 351.
21. Craig, at 179; Yusuf, at 351.
22. Craig, at 179; Yusuf, at 351.
23.  Lobo v MIMIA (2003) 132 FCR 93 at [43], [65]; de Bruyn v Minister for Justice and Customs (2004) 143 FCR 162 at [12], [67], [87].
24. Yusuf, at 339-340.
25. For example, s 424A of the Migration Act: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 228 CLR 294.
26. Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95].
27. Htun v Minister for Immigration (2001) 194 ALR 244 at 259 [42].
28. SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J.
29. Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [102], [122]-[123] per Crennan and Bell JJ.
30. SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [51].
31. Te v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 497, citing Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371.
32.   Re Minister for Immigration; Ex parte Durarirajasingham (2000) 168 ALR 407 at 423 [67].
33.   Minister for Immigration; ex parte Cohen (2001) 177 ALR 473 at 482 [36].
34.   Minister for Immigration v Khadgi (2010) 190 FCR 248.