Case Justice

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ASyLUm SeekeR ReSoURce cenTRe

The ASYLUM SEEKER RESOURCE CENTRE position paper on the LEGAL PROCESS of seeking asylum in Australia 1

TABLe oF conTenTS

execUTive SUmmARy 3

inTRoDUcTion 7iSSUeS AnD RecommenDATionS 8

I THE DIAC STAGE 8

1. Th rght t a trw 8

2. Statutr t lts 9

2.1. The 45-day rule 9

2.2. The 90-day time limit 10

3. Asssst f aslu las 11

3.1 Adverse credibility ndings 11

3.2 Treatment of expert reports 13

3.3 Gender-based claims 14

3.4 Sexuality-based claims 15

I I THE REFUGEE REVIEW TRIBUNAL 17

1. n rght t s la t appl 17

2. Asssst f aslu las 17

2.1 Adverse credibility ndings 17

2.2 Treatment of expert reports 19

2.3 Gender-based claims 20

2.4 Sexuality-based claims 21

3. Assssg dut Australa 23

4. A wa frward 25

III THE COURTS AND JUDICIAL REVIEW 25

IV REQUESTS FOR mINISTERIAL INTERVENTION 26

1. Th s.417 prss 26

2. Dlut f las 27

3. Presenting the RRTs ndings regarding humanitarian claims 28

4. Rpat rqusts ad w frat 29

V COmPLEmENTARY PROTECTION 31

VI SECTION 48B OF THE mIGRATION ACT 32

VII REmOVALS 33

concLUSion 34

ReFeRenceS 35


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2 The ASYLUM SEEKER RESOURCE CENTRE position paper on the LEGAL PROCESS of seeking asylum in Australia


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Te purpose o this paper is to advocate, educate

and work constructively towards better practices and

processes in the reugee determination system. Te

numerous case examples are based on the real-lie

experiences o clients o the Asylum Seeker Resource

Centre (ASRC) Legal Program, and reect the

experiences o many asylum seekers.

Te paper is structured chronologically; the reader

is thereore taken through every step o the decision-

making process as experienced by an asylum seeker

pursuing his or her claim, rom the primary stage to

possible removal.

A recurring theme throughout this paper is the

need or education and training o decision-makers

at the Department o Immigration and Citizenship

(DIAC) and the Reugee Review ribunal (RR).

Tis will ensure good and consistent decisions that take

into account the impact o the reugee experience on

individuals, as well as the role and responsibility that

decision-makers and government have in upholding

and developing the rights o asylum seekers seeking

Australias protection.

Te Rudd Government, and more specicallythe Minister or Immigration and Citizenship Chris

Evans, have shown their willingness to establish a

airer system, with the abolition o the PV regime in

2008. More recently, changes to the 45-day rule have

been proposed. Tis is welcome news or the asylum

seeker sector, which has been campaigning on these

issues or twelve years. It is disappointing however that

while the policies are slowly improving, the process

o applying or protection is still one that is arbitrary

and dependant upon the inclinations o DIAC case

ocers and RR members, some o whom do not havethe requisite skills or knowledge-base to guide their

decision-making.

It is hoped that this paper contributes to a more

humane system or those seeking asylum on our

shores.

DEPARTMENT OF IMMIGRATION AND

CITIZENSHIP

Assessing asylum claims is without question a dicult

task. It requires DIAC ocers to assess both individualsas well as the political, social, economic and cultural

inormation about a country o origin.

Lack o legal training o DIAC ocers, inadequate

timerames and poor decision-making combine to

produce an inconsistent and unjust legal system.

Tis inconsistent treatment o asylum seekers

claims starts at the primary stage. Te right to an

interview is not guaranteed, despite the act that

without an interview it is impossible or an asylum

seeker to give their account in detail or address any

concerns that may arise or DIAC. Asylum seekers

are at times reused without an interview and adverse

credibility ndings are made on the papers.

Another issue at the primary stage is that o

statutory time limits. Te ASRC welcomes the

Governments proposal to remove the 45-day rule,

which required asylum seekers to lodge a protection

visa application within 45 days o arrival in order to be

granted work rights and access to Medicare.

A statutory time limit remains, however, which

applies to decision-makers. Te 90-day rule requires

decision-makers at DIAC to make a decision on a

Protection Visa application within 90 days rom the

date o lodgement. While prompt decision-making isa desirable outcome, it can have an adverse eect in

that it creates unnecessary pressure on DIAC ocers to

make a decision, ofen without interviewing an asylum

seeker, which ails a model o best practice.

One o the most contentious issues in the reugee

process is that o adverse credibility ndings leading to

reusal o applications. Asylum seekers have been ound

to lack credibility and not be believed or (amongst

other actors) not being able to remember dates or or

remembering inormation that they had not included

in a written statement.

In making such ndings DIAC ofen disregards

medical evidence about an asylum seekers psychological

condition.

Other issues o concern at the DIAC stage

include:

l Te disregard o expert reports;

l An inconsistent approach to asylum seekers with

gender-based claims;

l An inconsistent approach to asylum seekers with

sexuality-based claims.

execUTive SUmmARy


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REFUGEE REvIEw TRIbUNAL

Te RR has a specialist role in dealing with the

assessment o asylum claims. Section 420 o the

Migration Act 1958 requires the RR to carry out itsunctions o review in a way that is air, just, economical,

inormal and quick. It is not bound by technicalities,

legal orms or rules o evidence and must act according

to substantial justice and the merits o the case.

Some notable concerns about DIAC are relevant

when discussing the RR. Tere is inconsistency

in decision-making at the RR, leading to a loss o

condence in the integrity o the process. Not all RR

Members are legally qualied, skilled in inquisitorial

processes or immune rom political inuence.

As a result asylum seekers experiences beore the

RR vary widely.

COURTS AND JUDICIAL REvIEw

Judicial review o asylum seekers cases is limited to

whether the RR made an error o law not an error

o act. Te current process does not permit judicial

review o a case on its acts. Tis means that a Court

will not re-hear the evidence and arrive at its own

decision about whether a person is a reugee or not.

As most decisions o the RR turn on issues o

act and credibility, asylum seekers ace a real challenge

in demonstrating that the RRs act-nding process

amounted to an error o law.

MINISTERIAL STAGE

When an asylum seeker has been rejected by DIAC and

the RR, he or she has the option o making a request to

the Minister or Immigration and Citizenship seeking

ministerial intervention under s.417 o the Migration

Act. Te s.417 process has highlighted the enduringinequities o the current reugee determination system

and the ongoing cost to asylum seekers and the

community.

Many asylum seekers reach the s.417 process not

having had a air hearing or having had questionable

decisions made in their case. However these are ofen

the cases where ministerial intervention is least likely,

given the assumption that is made that these asylum

seekers have exhausted their legal appeals and have

been ound not to be genuine reugees.

Te process is also inecient asylum seekers

are required to pursue unmeritorious reugee claims

through the review system in order to make a request

or ministerial intervention. Tis means that relevant

humanitarian issues are raised at the end o the process,

rather than at the beginning.

COMPLEMENTARY PROTECTION

Te time or a system o complementary protection in

Australia is long overdue.

Te Australian Government is presently

considering the introduction o such a system. Under

such a system, DIAC will assess an asylum seekers

claims under the 1951 Refugee Convention and i

reugee criteria are not met, go on to assess particular

protection needs arising under other relevant

human rights treaties such as the Convention AgainstTorture and International Covenant on Civil and

Political Rights.

While such a reorm would be welcome, the

dangers regarding the quality and consistency o

decision-making remain.

SECTION 48b

Once an application or a Protection Visa has been

reused, an asylum seeker is barred by s.48A o the

Migration Act rom making a new application. Onlyministerial intervention pursuant to s.48B o the

Migration Act can permit an asylum seeker to make a

new application.

Te concerns with s.48B mirror those with

s.417 the Ministerial process is discretionary, non-

reviewable, non-transparent and ofen lengthy.

Furthermore, the most vulnerable asylum seekers

seeking to make use o s.48B are ofen aced by

credibility issues surrounding the late disclosure o

inormation.

In its current orm, this section o the MigrationAct puts Australia at risk o breaching its international

obligations towards asylum seekers, particularly its

non-refoulementobligations.

REMOvAL

wo seminal reports have been prepared regarding

the return and removal o asylum seekers: Returning

Failed Asylum Seekers from Australia (Corlett 2007)

and Removing Seriously Ill Asylum Seekers from

Australia (Sampson, Correa-Velez & Mitchell 2007).

Te recommendations in these two reports are

comprehensive and commendable.


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Critical issues that remain unaddressed include

tness to travel assessments, in the absence o judicial

or independent oversight and the process itsel. Tese

are concerns which aect both asylum seekers indetention or in the community.

RECOMMENDATIONS

Te recommendations below are a starting point to

ensure Australias international obligations to asylum

seekers are upheld both substantively and procedurally

in law and practice.

General

1. Continue to develop a culture o compassion andrespect or asylum seekers throughout the reugee

determination process.

2. Adopt the principle: I in doubt, approve.

3. I DIAC or RR members are going to reuse on

the basis that an asylum seeker is not credible,

clear ndings must be given including why expert

evidence is ignored.

4. I reliable and supportive inormation sources

regarding the situation in countries o origin are

going to be ignored by DIAC or the RR in avouro other sources, clear reasons must be given.

5. Incorporate the Guidelines on Gender Issues

for Decision-Makers and the RRs Credibility

Guidelines into legislation as either part o the

Code o Procedure or as a relevant consideration

that must be taken into account by decision-

makers at DIAC and the RR.

DIAC stage

1. I a DIAC case ocer cannot make a avourable

decision in an application, an asylum seeker must

be called to an interview.

2. Amend the Migration Act to provide or

minimum standards o procedural airness at the

DIAC stage.

3. Abolish the currently statutory time limit o

90 days.

4. Consider extending the Immigration Advice and

Assistance Scheme (IAAAS) unding to all asylum

seekers in the community.

5. Provide adequate and ongoing education and

training to DIAC ocers about the impact o

the reugee experience on asylum seekers ability

to ully participate in the legal process; and on

assessing credibility and arriving at ndings o

adverse credibility.

The Refugee Reie Triunal

1. Amend the Migration Act to enable the Reugee

Review ribunal to grant leave and hear

applications lodged out o time.

2. All Members o the RR to be legally trained; to

receive training about the impact o the reugee

experience on asylum seekers; on assessing

credibility and arriving at ndings o adverse

credibility; in inquisitorial questioning andassessment o evidence.

3. All Members o the RR to disclose any political

roles or aliations.

4. Repeal s.91R and apply the wording o Article

1A(2) o the Refugee Convention.

The Courts and judicial reie

1. Amend theMigration Act 1958 to empower

courts to review a case or errors o law due tomaterial errors o act based on the evidence

beore the RR; ailure to make ndings

on independent corroborative evidence,

misapplication o the law to the acts and

incorrect interpretation o the law.

2. In relation to illogical and irrational decisions,

amend the Migration Act to dene these concepts

as a decision that is contrary to the acts or

evidence beore the ribunal and contrary to the

acts or evidence as ound by the ribunal.

Requests for ministerial interention

1. Introduce a pro-orma or DIAC ocers to use

that summarises an applicants case against the

criteria set out by the Ministers Guidelines to

ensure that there is no dilution o claims and that

all relevant actors are included in a clear and

concise manner.

2. Provide reasons or decisions where a request is

reused.

3. Provide legal advice to asylum seekers to ensure

requests contain all relevant inormation.


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4. Develop a aster decision-making process or the

Minister.

5. Grant humanitarian discretion to DIAC ocers

to remove the need to approach the Minister. Tisis predicated on DIAC ocers having receivedappropriate education and training.

Complementary protection

1. Prioritise the introduction o a system o

complementary protection.

2. Provide ongoing and adequate education and

training or DIAC and appropriate systems oreview beore the RR.

3. Te s.417 process to remain in place orhumanitarian cases alling outside the reugee orcomplementary protection criteria.

Section 48b of the Migration Act

1. Where women need to make their own

application or a new application raisingsensitive issues not previously put such as

amily violence, they should not have to seekministerial intervention under s.48B to do this.

An alternative and more direct process withsaeguards should be introduced.

2. Incorporate the principle onon-refoulementintodomestic law.

3. Develop a aster decision-making process or the

Minister under s.48B.

Remoal

1. Fitness to travel should be assessed against clear

guidelines and should cover both physical andmental health.

2. Seriously ill individuals should only be returned itheir condition can be treated or managed in their

country o return.

3. Tere should be judicial or independent oversight

o tness to travel assessments.

4. Minimum standards o care must be developedor the return or removal process.

5. Asylum seekers should not be returned to civilwar, natural disaster or where basic needs such as

ood and shelter cannot be met.

6. Te Government should increase aid and

development programs in countries o return.


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inTRoDUcTion ScoPe AnD PURPoSe oF THiS PAPeR

Te purpose o this paper is to advocate, educate

and work constructively towards better practicesand processes regarding the reugee determination

system. Tis paper is not intended to cover the issue

o mandatory detention the ASRCs position on

this issue is well-documented.1 Tere is no scope to

discuss better practice when it comes to the policy o

mandatory detention. Te issues raised in this paper

concerning processes and decision-making apply

equally to asylum seekers in the community and in

detention.

Te cases reerred to are based on act and reectthe experience o many asylum seekers. It is beyond the

scope o this paper to document every experience but

where possible negative examples o cases have been

complemented by positive experiences. Te dierence

has ofen been one o ollowing basic principles o

airness and good decision-making the dierence

between an asylum seeker being heard and havingtheir claims properly assessed, or not.

We have also made a decision to document some

cases as they progress throughout the Department

o Immigration and Citizenship (DIAC) and the

Reugee Review ribunal (the RR) stage given the

problems that continue in the handling o asylum

claims throughout the appeals process.

As a result, a recurring theme appears throughout

this paper that o the need or education and training

o decision-makers at DIAC and the RR to ensuregood and consistent decision-making, taking into

account the reugee experience on individuals as well

as the role and responsibility decision-makers and

government have in upholding and developing the

rights o asylum seekers seeking Australias protection.

1 See Immigration Detention Australia, Submission to the Joint Standing Committee on Migration, 24 Oct 2008.


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1. The right to an interie

At present the right to an interview or asylum seekers

who have lodged an application or a Protection Visa at

DIAC is not guaranteed.

While this is not contentious where an asylum

seeker can provide suciently strong documentary or

other evidence to establish their need or protection

on the papers, in several cases applications have been

reused without an interview. More recently, the ASRC

Legal Program has seen applications reused without

an interview or applicants claiming asylum rom

known reugee-producing countries such as Sudan

and Zimbabwe.

Given what is at stake or an asylum seeker and

why protection is sought, the critical nature o the

primary interview and minimum standards o airness,

an interview should be guaranteed.

No asylum seeker case is typical and each case can

give rise to complex issues that can only be discussed or

explained urther at interview. In our experience very

ew accounts o why a person ed their home ollows a

simple narrative. Without an interview it is impossible

or an asylum seeker to give their account in detail

or address any concerns that may arise or decisions

makers at DIAC.

What is more dicult to reconcile is where an

asylum seekers application is reused without an

interview and adverse credibility ndings are made on

the papers.

Some asylum seekers prepare applications on their

own or with a riend, others turn to private migration

agents o varying skills and ethics. Given this, the

denial o an interview is particularly unacceptable. Te

right to an interview is the saety net that ensures the

basic integrity o the protection application system.

Gd legal actce eques that thee ae ssues

that culd be the bass eusng an alcatn, an

asylum seeke must be called t an nteew.

Tis is the current practice or applications

beore the RR. Section 425 o theMigration Act 1958

(Cth) (the Migration Act) requires the ribunal

to call a hearing i it cannot decide in avour o anasylum seeker.

Parallel requirements should exist at the DIAC stage.

iSSUeS AnD RecommenDATionS

I THE DIAC STAGE

CASE STUDY #1

An asylum seeker from an African country eeing religious persecution applied for a Protection

Visa ve months after arriving in Australia. When he sought assistance at the ASRC he was

hlss ad th 45-da lt fr h t appl fr prtt had passd, lag h wthut

wr rghts, wth ad dsttut.

Th aslu sr had a sur place la ts ars hs h utr aftr h had

arrd Australa ag t pssbl fr h t safl rtur.

Hs aslu applat was rfusd wthut a trw, partl th bass that th DiAc cas

Ofcer did not nd his claims credible. Many of the issues regarding adverse credibility could

ha b addrssd at a trw, ludg what furthr d was rqurd ad

clarication of the information provided in the entry visa application. None of these matters

wr put t th aslu sr ad th abs f a trw ld th ds-ar t

rfus th applat.

A appal was ad t th RRT. Th as s dsussd blw th RRT st.

At th t f prparg ths papr, th aslu sr has b wthut wr rghts ad

mdar fr r tw ars.


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2. Statutory time limitsCurrent statutory time limits exist or asylum seekers

and decision-makers respectively. Tese are:

l Te 45-day rule which requires that asylum

seekers lodge a protection visa application

within 45 days o arrival in order to be granted a

Bridging Visa A when their entry visa expires;

l Te 90-day rule which requires decision-makers

at DIAC to make a decision on a Protection

Visa application within 90 days rom the date o

lodgement.

Tere are problems with both these time limits.

2.1. The 45-day ruleAt the time o writing this paper the Australian

Government has just announced the abolition o the

45-day rule.

Tis is extremely commendable and puts an end to

a twelve-year long campaign by asylum seeker agencies

to have this unair rule abolished. While the process o

implementing this change is still being considered, it

is worthwhile to remind the reader o the reasons why

this rule needed to change.

In practice, ew asylum seekers in the communityaccess proper legal assistance shortly afer their arrival.

Asylum seekers in immigration detention are inormed

CASE STUDY #2

A aslu sr fr a Afra utr appld fr a Prtt vsa thr ad a half ars

aftr arrg Australa.

Th aslu sr had a sur place la - hr rustas hagd whl Australa

ag t pssbl fr hr t safl rtur t hr utr f rg.

oft suh dla applg fr a Prtt vsa s s as sstt wth a gu far

f prsut - hwr, a prpt applat s sld wd as bstg th applats

rdblt; r ft tha t, t s wd spl as a pl t ga wr rghts Australa.

i ths as hwr, th aslu sr was apprpratl alld t a trw ad hr

las prprl assssd.

At th t sh ldgd hr applat th aslu sr dd t ha wr rghts, had a s

th-ld bab ad was abut t b hlss.

Fllwg th trw ad a pl lara, th applat was apprd wth fur

ths f ldgt, ladg t prat rsd.


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3. Assessment of asylum claims

Assessing asylum claims is without question a di cult

task. It requires DIAC o cers, who may not be legally

trained, to assess individuals as well as the political,

social, economic and cultural inormation about the

country o origin. It requires good questioning skills

and the ability to assess evidence properly to arrive at

a decision.

In making the above assessment it is critical to

take into account an asylum seekers:

l experiences o persecution

l mental health

l cultural diversity, gender, non-English speaking

background and reliance on interpreters to

provide an accurate account o claims

l unamiliarity with legal processes

amongst other actors and as they can impact on an

asylum seekers ability to relate their claims.

Tere is inconsistent consideration and application

o the above actors by DIAC, particularly when making

credibility ndings.

3.1 Adversecredibilityfndings

Adverse credibility ndings against asylum seekers

leading to reusal o applications remain without

question one o the most contentious issues in the

reugee process.

Asylum seekers have been ound to lack

credibility and not be believed in part because they

have not been able to remember dates at an interview,

because they gave inormation at an interview that

was not in a written statement or because they gave

evidence in the application to travel to Australia that

they later readily admitted was not true. In other cases

DIAC has equated vagueness on the part o an asylum

seeker as lacking credibility.

in makng such findngs DiAC fen dsegadsmedcal edence abut an asylum seekes

sychlgcal cndtn.

CASE STUDY #3

i Dbr 2008 Prtt vsa applats wr ldgd fr aslu srs fr utrsludg Zbabw, Afghasta, Rwada, Lbra ad Ugada.

Dspt th lu f ass, ths applats wr prpard as qul as pssbl t ttl

applats t a Brdgg vsa A wth thr duts suh as a dtald Statt f cla

fllwg wth a frtght f st applats bg ldgd.

At th t f wrtg ths papr (r tha thr ths aftr applats wr ldgd) th

ajrt f aslu srs ha t attdd a trw r has a ds b ad.

Furthr t t prd dutat suh as dal rprts ad t attd trws has

b sught ad gratd.

Th 90-da t lt has passd fr all applats.


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It is well-known that asylum seekers with poor

psychological health may be more prone to relate

claims in a way that some decision-makers might nd

unconvincing. Tere may be issues o inconsistenciesand vagueness that may adversely aect the way their

evidence is assessed.

James Hathaway (The Law of Refugees Status,

1991) states,

It is critical that a reasonablemargin of appreciation be appliedto any perceived aws in theclaimants testimony. A claimantscredibility should not be impugned

simply because of vaguenessor inconsistencies in recounting

peripheral details; since memoryfailures are experienced by peoplewho have been the subject ofpersecution.

In other cases DIAC ocers have considered

an asylum seekers claims as implausible leading

to adverse credibility ndings. Tis is despite their

having little insight about the situation in asylumseekers countries o origin. It is not uncommon or a

decision-maker to assess claims through the prism o

an ordered and unctioning society, rational behaviour

and choice.

Tis is contrary to virtually all asylum seekers

experiences in the countries rom which they have

ed.

Although the RR has published Credibility

Guidelines which are relevant to DIAC, there continues

to be an inconsistent approach regarding assessment o

credibility and an over-reliance on adverse credibility

ndings to reuse an application.

Tis is also contrary to well-established principles

including:

l aking into account all the legal, actual and

evidentiary matters in an application;

l Te low threshold test or a nding that there is

a real chance o persecution. Australian courtshave decided that the onus on an asylum seeker

is one o establishing a possibility rather than

a probability; very little in the way o objective

support is required to establish reugee status or

a person genuinely in ear o relevant persecution

i returned to his or her own country;

l Considering an asylum seekers ears o

persecution separately and cumulatively when

assessing the chance o persecution.

In other areas o law very ew decisions are madeon a nding o I dont believe you by relying on one

piece o evidence, such as an oral response which diers

rom a written response, or an inability to recall dates.

Individuals being questioned are given the benet o

the doubt that in such an environment, details may be

orgotten.

In other areas o law very ew decision-makers

come to a nding oI dont believe youin the ace o

expert evidence about a persons experiences o harm

and its impact on their mental health. An analogous

situation would be to reject exonerating evidence

against a person charged with a crime, because they

were a poor witness in their own deence.

In other areas o law very ew decision-makers

come to a nding oI dont believe youby having the

power to take into account one piece o evidence over

another, such as a country inormation report which

may overstate the improving situation in a country

while they also have an equally reliable report that

supports an asylum seekers claims. Australian courts

have cautioned against this approach.

CASE STUDY #4

An asylum seeker from an African country who had ed political persecution was refused by

DiAc partl th gruds f adrs rdblt.

i assstg h t was qul stablshd that h was t a artulat spar. What was

wthut dubt hwr wr hs prs f trtur, rrbratd b a dal rprt.

In refusing his application the DIAC ofcer repeatedly referred to his vagueness and the

implausibility of the events he described, particularly the circumstances of his ight.


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3.2 Treatment of expert reports

Te disregard o expert reports (including medical

reports) provided in support o asylum seekers claims

is o ongoing concern.

oo ofen decision-makers disregard expert

reports and their ndings on the basis that they

merely record (and by implication, adopt) what anasylum seeker has told them about their experiences o

persecution. Tis is particularly so in the context o a

therapeutic relationship.

Tis is not an appropriate basis upon which to

reject an experts report.

Nor is it acceptable or an expert report to be

disregarded on the basis that a decision-maker does

not believe an asylum seeker.

Experts are not required to provide reports in

the case o medical reports, they do so because in theirexpertise they are able, rstly, to establish trust and,

secondly, to oer an opinion about the cause o an

asylum seekers physical or psychological condition.

In The Global Challenges of Asylum (2004),

Proessor Derrick Silove states,

Immigration ofcers regularlychallenge the histories of persecutionpresented by asylum seekers, andthe secrecy with which torture and

related abuses are perpetrated

make verication of individual

trauma stories difcult. Nevertheless,clinicians working in the eld rarelyhave cause to doubt the trauma

stories recounted by refugees, withtheir accounts being consistent withhistorical conditions known to pertainin their countries of origin. A recent

study has conrmed that, although

details are often forgotten, recall ofmajor abuses recorded of refugees

remains consistent over time (Herlihy,Scragg, & Turner, 2002).

Hence, the problem of credibilityrelates less to the genuine experiencesof persecution experienced by

refugees than to the politicallymotivated attitudes of immigrationofcials assessing their claims. Theprocess of assessing asylum claims isoften adversarial, with asylum seekersbecoming distressed and at timesincoherent during the proceedings.The consequence can be thattheir fragmented or contradictorytestimony is attributed erroneously tofabrication rather than to underlyingmemory disturbances caused bytraumatic stress reactions.2

Australian courts have also stated that where

medical science oers an answer to a medical issue,

it is simply not rational or a lay person to brush that

answer aside in avour o some theory o their own.3

Th dal rprt was rjtd th bass that t rl rrdd what th aslu sr

tld th prt, dspt th prt ffrg a dal p abut th aus f sars ad

thr jurs.

Th ds was rturd b th RRT.

2 At the time o publication the author was Proessor o Psychiatry at the University o NSW; Director o the Psychiatry Research and

eaching Unit, South Western Sydney Area Health Service and Centre or Population Mental Health Research; Psychiatrist at the Service

or the reatment and Rehabilitation o orture Survivors, NSW and Project Director o the East imor National Mental Health Project.

3 See or example Fuduche (1993)

CASE STUDY #5

An asylum seeker from an African country eeing persecution on account of his political

atts was assstd b th ASRc t ldg a Prtt vsa applat. Hwr t t

appratl tw ths fr th dat f ldgt t prd a dtald Statt f

Claims. This was due in part to his previous immigration les being requested underFOI fr


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3.3 Gender-ased claims

As with the above issues, DIAC ocers have taken an

inconsistent approach to asylum seekers with gender-

based claims.

In our recent experience, DIAC Ocers, on the

whole, have handled gender-based claims laudably.

Female case ocers have been assigned to interview

asylum seekers who have experienced violence and

trauma; decision-makers have displayed knowledge o

the case so as to limit questioning to the most relevant

points and decisions have ollowed quickly where all

evidence has been provided.

However, in some cases adverse credibility ndings

continue to override asylum seekers claims o gender-

based persecution. Tis is despite expert evidencebeing provided in support. For women who have rstly,

experienced persecution and secondly disclosed it, not

being believed is akin to being re-traumatised.

DIAC has published Guidelines on Gender Issues

for Decision-Makers which are presently in the process

o being revised. Te ASRC through the position o

its Womens Legal Worker is providing a detailed

submission in relation to the Guidelines.

Te Guidelines call or womens claims opersecution, including gender-based persecution

to be properly heard and assessed. Te Guidelines

acknowledge the barriers that lead to women being able

to access protection and aim at promoting a consistent

and sensitive approach to womens claims, in line with

international law and practice.

In relation to persecution such as sexual assault

disclosed at a later date the Guidelines call or decision-

makers to handle this issue with great care including

making assessments about the late disclosure and a

womans demeanour.

However, despite the existence o the Guidelines,

there continues to be an inconsistent approach taken

by decision-makers to gender-based claims.

rsas but r prtatl, t th aslu srs tal halth dt. H tall

prstd as dstrustful, farful ad t was pssbl t ga a plt aut f hs hstr

ludg that f dtt ad trtur.

Ths frat was rald slwl r t ad as trust was gad. Hs hstr f trtur als

patd hs ablt t rall ts ad dats squ. Hs las wr pl ad

l st aslu srs prs, dd t fllw a spl arrat.

Fllwg hs trw wth DiAc, dal, usllg ad pshatr rprts wr prdd

supprt f th aslu srs las as wr lgal subsss rgardg th law th prpr

hadlg f ths d.

Th applat was rfusd. Althugh th prt rprts ad d wr t qust,

th ds-ar dd t apt as plausbl th ts as th aslu sr dsrbd

ad fud that h was t rdbl.

Th prt rprts wr dsssd baus th rrdg sdrat was th asluseekers credibility. The DIAC Ofcer did not accept that the torture and psychological

dt wr du t th las ad b th aslu sr, but b s thr aus whh

was t statd.

Th ds s urrtl bg appald.

CASE STUDY #6 NEGATivE ExpEriENCE

An asylum seeker from the Middle-East ed persecution on account of her minority ethnic

grup status ad putd pltal p.


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Sh appld fr a Prtt vsa tgthr wth hr husbad. Durg th DiAc stag ad

bfr a ds was ad sh dslsd t hr lawr that sh was suall assaultd whl

dtt hr utr.

A pshlgal ad pshatr rprt statd that hr spts wr sstt wth traua

f a sual atur.

Although she was interviewed separately and by a female case ofcer, her application

was rfusd th gruds f adrs rdblt ad baus f a abs f utr

information referring specically to the events as described by the asylum seeker. This was

dspt th st f rlabl frat f th d f sual assault agast w

(partularl ths fr th rts) whl ustd.

Th ds was appald t th RRT. Ths as s furthr dsussd th RRT st f ths

papr.

3.4 Sexuality-ased claims

As with gender-based claims, there is an inconsistentapproach by decision-makers to accepting or reusing

sexuality-based claims.

In reusing asylum seekers claims o persecution onthe grounds o their sexuality there is ofen an over-

reliance on adverse credibility ndings or applyingprinciples o reugee law such as relocation that are

inappropriate.


An asylum seeker from Asia who ed persecution on account of his sexuality was refused by

DiAc, wthut a trw. Th aslu sr was 17 ars ld ad had r ld awa

fr hs fal. Hs fal had st h t Australa 2007 t stud aftr h ad hs fathr wr

attacked. They hoped he would remain here after he nished his studies. He did not seek any

lgal asssta fllwg hs arral Australa. Wth a ar h had dtrratd as a rsult f

hs past prs, bg sparatd fr hs fal ad th strss f hs studs.

H was urprstd at th t h ldgd hs Prtt vsa applat 2008.

i rfusg th applat th ds-ar rfrrd t th dla applg fr prtt

as bg sstt wth s wh gul fard prsut.

CASE STUDY #7 poSiTivE ExpEriENCE

An asylum seeker from Africa ed political and gender-based persecution. She had been

dtad aut f hr fals pltal atts ad durg hr dtt was suall

assaultd.

Sh appld fr a Prtt vsa ad dslsd hr prs f har hr statt.

A pshlgal rprt supprtd hr las.

Sh was t trwd ad hr applat was apprd th paprs wth fur thsf ldgt.


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Hs prsal rustas wr t ta t aut. Th ds-ar als fud that

that th aslu sr uld rlat t athr t hs utr whr s prgrss

had b ad adag th rghts f hsuals. Ths was dspt th fat thathsualt was stll a r that utr ad that h uld t pl prss hs

sualt wthut srus rs f har.

The issue of his sexuality was not doubted by the DIAC ofcer who rejected his application.

H appald th ds. Th ds f th RRT s dsussd furthr ths papr.


A aslu sr fr a Afra utr appld fr a Prtt vsa th gruds ffarg prsut as a hsual f h rturd.

H was trwd b DiAc ad durg th trw th ds-ar datd that -

uld qust r tst a prss sualt.

Applg apprprat lgal prpls thr was a ral ha h wuld b prsutd f

rturd t hs utr aut f hs sualt.

Hs applat was apprd.


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Te RR has a specialist role in dealing with the

assessment o asylum claims. Section 420 o the

Migration Act requires the RR to carry out its

unctions o review in a way that is air, just, economical,

inormal and quick. It is not bound by technicalities,

legal orms or rules o evidence and must act according

to substantial justice and the merits o the case.

Some notable concerns that have been discussed

about DIAC remain relevant when discussing the RR.

Tere is inconsistency in decision-making at the RR

leading to a loss o condence in the integrity o the

process. Not all RR Members are legally qualied,skilled in inquisitorial processes or immune rom

political inuence.

As a result asylum seekers experiences beore the

RR vary widely.

1. No right to seek leae to apply

Section 412 o the Migration Act states that an

application to the RR must be made within 28 days

afer notication o a decision.

Tis means that i an asylum seeker misses the

deadline the RR has no power to grant them leave to

apply out o time.

Tis is not the case with other ribunals, which

have power to hear applications lodged out o time:

see or example s.29(6) & (7) o the Administrative

Appeals Tribunal Migration Act 1975; s.21 o the

Defence Force Discipline Appeals Act 1955; s. 5 o the

Veterans Entitlements Act 1986; the Social Security(Administration) Act1999.

Given that the RR is considered the specialist

tribunal in Australia and represents the nal

opportunity or merit reviews or asylum seekers, one

has to question its lack o power to grant leave and hear

an application lodged out o time.

2. Assessment of asylum claims

2.1 Adversecredibilityfndings

Where the RR reuses an application on the grounds

o credibility, such ndings are beyond the scope o

review by the courts. Findings o credibility are a matteror the RR; courts cannot look at the acts o a case,or at how the RR arrived at a nding o act includingadverse credibility.

In many cases however, how the RR arrives atndings o adverse credibility is o serious concern.

Te RRs Credibility Guidelines make clear howthe ribunal should conduct reviews. Te Guidelines

call the ribunal to:

l make clear and unambiguous ndings as to the

evidence it nds credible or not credible andprovide reasons or such ndings (paragraph 2.5);

l ensure that it conducts a hearing that respects

the dignity o the Applicant in a air and non-

intimidating manner (paragraph 3.2)

l have due regard to expert evidence (paragraph8.4);

l take into account the actors that may aect an

Applicants ability to give evidence (paragraphs4.1 and 4.3) and

l keep an open mind (paragraph 3.6).

Te Guidelines are ollowed on an ad hoc basisat the discretion o individual Members and remain

unenorceable.

In some cases individual Members will give thebenet o the doubt to an asylum seeker so that even i

they are not believed about one aspect o their case thiswill not lead to reusing the entire application. Tis is

in line with the guidelines above.

In other cases particularly those that have been

remitted by the courts, it is imperative that Memberskeep an open mind when re-hearing the case.

II THE REFUGEE REVIEW TRIBUNAL


20/38



In the absence o the Guidelines being legislated however, it will come down to individual

Members as to whether they are ollowed or not.

Although Members requently state in their decisions that they have had regard to the

Guidelines the lack o consistency would indicate otherwise.


An asylum seeker from Asia who ed persecution on account of his political activities and

occupation was refused by the RRT at his rst hearing because it made adverse credibility

ndings. An interpreter was present at the hearing however the asylum seeker was

urprstd.

Durg th harg, lgth qusts ad prpsts wr put t h that wr pssbl t

trprt auratl. Thrughut ths qusts rtal ad adrs frat was bg

rasd but was t traslatd, lag th aslu sr uawar ad uabl t rspd t

th Trbuals rs.

H was usussful hs appal.

o appal th Fdral magstrats curt rttd th attr ba t th Trbual b st

fr a w harg. Th mstr aptd th Trbual had ad a rrr f adstrat

law.4

At th sd RRT harg th Trbual was prdd wth d that was t put t th

asylum seeker and it was open to accepting the errors that occurred in the rst hearing.

Th aslu srs rdblt was rstrd. Hwr, hs applat was usussful

baus th Trbual sdrd h had t b srusl hard.

Ths ds s urrtl bg appald.


An asylum seeker from the Middle-East ed persecution on account of his religious conversion.

Hs applat was rfusd b DiAc ludg th gruds f la f rdblt ad utr

frat that wuld supprt suh a la.

Ths was dspt hag prdd dal d f trtur ad thr bg d f

abuss b rlgus trsts.

o appal t th RRT th Trbual qustd th aslu sr abut hs fath, t t

aut th supprt utr frat ad whl th Trbual fud that s aspts f

th aslu srs d had b rstatd ths dd t dsqualf hs tr las.

Applg apprprat lgal prpls, th Trbual fud thr was a ral ha that f

rturd t hs utr h wuld b prsutd.

Hs applat was sussful.

In other cases however, an adverse credibility nding about one matter has led the ribunal toreject an asylum seekers entire claim. Such ndings are ofen excessive, illogical and unreasonable,

particularly as they ignore other evidence provided in support o a case.

4 Principles o administrative law are distinct rom reugee law. Australian courts cannot consider the acts o a reugee case. Tis is

discussed below in the Courts and Judicial Review section.


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CASE STUDY #12

o appal t th RRT th aslu sr td cas Stud #1 was qustd fr

appratl 37 uts. o arag a RRT harg tas abut thr hurs. H was t

asd a qusts abut hs rlg.

H had prdd lttrs f supprt fr hurhs hs utr ad Australa ad utr

frat that supprtd hs fars f prsut baus f hs rlgus rs. Th

lttrs wr t qust.

H had prdd a rprt dagsg tw srus pshlgal dts. Th rprt was t

qust.

Th RRT fusd sll th wa th aslu sr btad hs tr sa t Australa ad

his nancial resources. Few notes were taken during the hearing despite transcripts not bg

aalabl fllwg a harg. Th mbrs dut, ludg turg hr ba t thaslu sr durg th harg, rasd rs abut th tgrt f th rw.

Th applat was rfusd adrs rdblt gruds. Ths was dspt th d

f th aslu srs rlgus prats hs utr ad Australa. Th RRT fud that th

rlgus atts Australa wr udrta sll t strgth th rfug la, dspt

t asg th aslu sr a sgl qust abut hs fath.

Such a decision is difcult to reconcile with the Credibility Guidelines ad gd adstrat

ds-ag.

Th as s urrtl appal bfr th Fdral curt f Australa ad a ds s

pdg.

Adverse credibility ndings against an asylum seeker

are unequivocally damaging to their legal claims and toan asylum seeker personally. Te inability to challenge

these ndings in court also has negative implicationsshould an asylum seeker seek ministerial intervention

on humanitarian grounds. Tis is discussed below.

2.2 Treatment of expert reports

Te inconsistent and ofen erroneous handling o

expert reports including medical reports, remains oconcern at the RR stage.

It is noted that at present draf Guidelines on

Expert Opinion Evidence are being considered by theRR and it has commenced the consultative process.

Legal principles have established that the RR isable to give what weight it considers appropriate to the

evidence presented beore it.

However, this ofen means that medical or other

expert reports are disregarded, despite the report andcredentials o the expert not being in question. Tisevidence should take precedence in an application.


An asylum seeker from the Middle-East eeing persecution on account of his political activities

ad tht was rfusd b DiAc adrs rdblt gruds - partl baus a prus

sa applat was usussful ad thr was dla applg fr Prtt.

At the RRT stage he made signicant disclosures for the rst time, regarding his activities in

Lba ad hs prs f trtur. A dal rprt rrbratd th abralts t


22/38



a partular part f hs bd ad a pshatr rprt statd wh h ad th dslsurs at

suh a lat stag.

Durg th harg th RRT hs t dut a dal aat f ts w f th aslu

sr ad statd that thr was sbl abralt. Th RRT als rjtd th pshatr

rprt plag th ras fr th lat dslsur.

A appal t th Fdral magstrats curt was usussful.


A aslu sr fr Asa was studg Australa wh h rtd t chrstat.

H fard prsut fr hs fal ad rlgus trsts f h rturd. H uld tpl prat hs fath hs h utr wthut rs f har. H was rfusd b DiAc

dspt thr bg rlabl utr frat rstrts t frd f rlg ad th

squs f rtg. it was fud that th aslu sr uld rlat t athr

part f hs h utr whr thr wr chrsta uts.

o appal t th RRT a prt rprt was prdd b a ladg aad th rlat

lgal stuat that utr ad fr dduals th aslu srs stuat.

Th appal was sussful.

2.3 Gender-ased claimsSimilar issues arise at the RR as with DIAC regarding the inconsistent approach taken to gender-based

claims o persecution.


o appal t th RRT th aslu sr td cas Stud #6 was sparatl

qustd b a fal mbr as was apprprat.

Dspt ths th RRT rfusd th applat prarl th gruds f adrs rdblt. Th

aslu sr was t bld ludg, part, baus sh dd t rall dtals atl

th sa wa as hr husbad.

A RRT mbr wth a p d uld ha s ths as a abs f llus btw

th husbad ad wf ad uld ha s ths th tt f th aslu srs

trauatzd stat as was argud.

i rfusg th applat th RRT dsrgardd pshlgal ad pshatr rprts rfrrg

t th aslu srs spts ad traua. Th rlablt f th rprts was t qust.

A appal was ad t th Fdral magstrats curt ad th attr was rttd t th

Trbual b st fr a w harg.

At th sd Trbual harg th aslu sr was slarl qustd b a fal

mbr ad t bld fr slar rass.


23/38




An asylum seeker who ed an Asian country fearing political, ethnic, religious and gender-

basd prsut was rfusd b DiAc wthut a trw.

Sh had t Australa a studt sa but tw ars latr a fal br frd

hr that th ltar had g t hr h lg fr hr, th bass f hr assat wth

another family member who had recently deserted the army and ed the country.i hr utr f rg th aslu sr had b dtad ad qustd thr ts

rgardg hr pltal ad rlgus atts. Sh was rlasd dt ad trd

b th authrts ah t.

Up larg f ths frat ad farg rtur th aslu sr prptl sught ad

ad appld fr a Prtt vsa.

At th RRT sh was rfusd, ludg th gruds f adrs rdblt, part baus f

hr dla.

Th RRT was sttutd b a al mbr. Th adat prst td that th RRT

adptd a trrgatr apprah f qustg ad was pltl sst t th

gdr ssus (th aslu sr had g d that sh had wtssd abus b thltar f th rt w ad ths had patd hr w fars f rtur). Th RRT

was rpatdl dsss f ths fars, frfull statg that har had happd t th

aslu sr.

Fllwg th harg th aslu sr statd that th RRTs dut qustg hr was

slar t that f th ltar hr h utr.

A appal was ad t th Fdral magstrats curt ad th attr was rttd b

st t th RRT fr a w harg. Th mstr aptd th RRT had ad a rrr f

adstrat law.6

At th sd harg th RRT was sttutd b a fal mbr, th aslu sr was

sstl qustd ad tag t aut all th d, th RRT ddd th as

faur f th aslu sr.

it s prtat t t that at th sd harg w d was prdd ad th

sa fats wr rld up. Hwr a dffrt ut fllwd.

It is difcult not to draw the conclusion that the only variable in the case was the RRT itself.

5 Although the Minister consented to the wies application he did not consent to the husbands case. Te husbands case is currently on

appeal in the Federal Court o Australia. Tis shows the disparate way in which claims that arise rom the same set o acts can be treated.

A sd appal was ad t th Fdral magstrats curt ad th attr was rttd t

th Trbual b st fr a w harg.5

A thrd Trbual harg was hld th attr t whh a ds s pdg.

2.4 Sexuality-ased claims

Te ribunals handling o sexuality-based claims remains inconsistent with an over-reliance on adversecredibility to reuse applications.


24/38



CASE STUDY #17

o appal t th RRT, th aslu sr td cas Stud #8 prdd, agst

other evidence, a sworn Afdavit from his father about the persecution suffered because of his

sualt ad hs fars f h rturd t hs utr f rg.

Durg th harg th aslu sr was asd abut th laws agast hsuals hs

utr. H was asd t a hsual atst grups, agazs r wbsts thr. H

was uabl t d s satsfatrl. Ths qusts dd t ta t aut hs ug ag

ad hs at.

H was asd wh h uld t dsappar t f th largr ts. Ths s t part f

Australa law.

H was asd t a ga bas Australa ad was uabl t d s satsfatrl.

Hs applat was rfusd.

The RRT rejected the afdavit evidence provided by his father.

Th RRT rjtd that th aslu sr was a hsual baus th aslu sr had

d r lttl t prss hs sual rtat s h arrived Australa. H had t

pursud a gay lifestyle. Ths was dstratd b hs la f rlatshps Australa, hs

ablt t a r tha tw ga bars ad hs ltd wldg f th gayscene.

This ignored the asylum seekers isolation and distress in Australia, lack of work and nancial

rsurs, hs tal dstrss at th frd bra-up f a srus rlatshp ad hs far f

bg psd t drugs ga bars.

The adverse credibility nding removed the case from the scope of review of the courts.

Th aslu srs huatara rqust t th mstr was subsqutl rfusd.

H w fas rtur.

6 In this case the RRs conduct was not the basis or the appeal.


25/38



3. Assessing conduct in Australia

Te Migration Act denes persecution broadly andnon-exhaustively, but goes on to state in s.91R(3) that

any conduct engaged by an asylum seeker in Australiais to be disregarded unless an asylum seeker can satisy

a decision-maker that the conduct was engaged in or apurpose other than strengthening their reugee claim.7

Tis provision is problematic or a number oreasons:

1] Te political motivation behind the provision

Te provision was introduced under the Howard

Government in 2001 and some commentators havereerred to it as highly suspect. It carries with it thedanger o separating asylum seekers into those that

are genuine or those that are to blame, particularly ithey are seen to have brought harm upon themselves.

Te Refugee Convention makes no such distinction orqualication.

As Germov and Motta (2003) point out:

The requirements of subsection91R(3) are highly suspect in relationto the requirements of Article 1A(2),

since the applicants fear need onlybe well-founded and directedat them for a Convention reasonto substantiate a claim to refugee

status: the Convention makes noqualication as to how that well-founded fear came into existence.Importantly, the Convention doesnot hold an individual to blame forpersecution or the threat thereof

that may be visited upon themwhere that persecution is directedat them for a Convention reason.

The danger of subsection 91R(3) isthat is has the potential to import thehighly suspect notion of deservingand undeserving refugees intointerpretation of the Convention meaning that, despite the fact thata refugee has a well-founded fearof Convention-related persecution intheir home country, they can still suffer

refoulement to that country if theyare perceived to be undeservingbecause they are the author of their

own harm.

2] Te provision has also been instrumental in

stiing asylum seekers activities in Australia.

It has made it virtually impossible or asylum

seekers to advocate or lobby or their own cause oror issues o concern without it being seen as bad aith

conduct intended to boost their reugee claims.

It has also made it impossible in some cases or

asylum seekers to continue their activities in Australiagiven their reedom to do so without risk, without it

being seen as intended only to strengthen their reugeeclaim.

Some examples o this include pro-democracy or

Falun Gong activists rom China who participate inprotests in Australia or demonstrate outside consular

o ces.

3] As with an over-reliance on adverse credibility,

in some cases, there continues to be a tendencyto disregard activities undertaken in Australiadespite there being evidence o their genuineness.

Some examples o this include religious converts inAustralia who are seen as having engaged in activities,


26/38



such as converting and going to church, or the sole

purpose o strengthening their reugee claims. Tis is

despite o there being evidence o the genuineness o

their conduct.

4] Te question is well asked what i such conduct

gives rise to a real chance o persecution? Each

case must be assessed on its merits particularly i

there are consequences in returning the asylumseeker to their county o origin, ollowing their

conduct in Australia.

CASE STUDY #18

An asylum seeker from the Middle-East who ed persecution following religious conversion

appld fr a Prtt vsa w aftr arrg Australa. Baus h arrd wthut

ald duts h was dtad. H spt tw ad a half ars grat dtt

prr t bg sussful at th RRT hs thrd harg.

His rst review application was unsuccessful, in part because of adverse credibility ndings. TheRRT fud that h had t b a gu rt ad that a rlgus atts udrta

whl dtt Australa wr sll fr th purps f strgthg hs rfug las.

o appal, althugh th Fdral magstrats curt uld t asss th adrs rdblt

ndings it found a legal error in the way the RRT assessed the refugee claims including the fact

that th RRT mbr has rfrrd t utr frat fr Wikipedia.

Hs sd RRT harg was usussful, part, baus f th Trbuals slar asssst

that th rlgus atts udrta dtt wr sll fr th purps f strgthg

hs rfug las.

H appald t th Fdral magstrats curt ad was sussful.

At bth th hargs bfr th RRT th aslu sr had prdd d fr lrg Australa rgardg hs fath. yt ths was dsrgardd ad s as dut b h t

strgth hs rfug las.

At hs thrd RRT harg th aslu sr prdd furthr d f hs fath. Althugh th

RRT dd t apt that th aslu sr was a rt hs utr f rg, t aptd

his genuine conversion in Australia. The RRT accepted how difcult it was to ascertain the

guss f a dduals fath but rfrrd t th sst th aslu srs

d rgardg th prat f hs fath Australa.

Th RRT fud hs rlgus atts dtt wr t udrta t strgth hs la t

rfug status.

Aftr tw ad a half ars grat dtt h was fud t b a rfug.

Th aslu sr tus t qust hw lg t t t arr at ths ut ad wh

h had t b dtad.

7 See s.91R(1) (3) o the Migration Act


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4. A ay forard

Given the ongoing discussion about the integrity o

the RR process and the consistency and quality o

decisions being made, a way orward may be or apanel o decision-makers to decide cases that present

dicult actual and evidentiary issues. Tere needs to

be a more robust mechanism or arriving at ndings

o adverse credibility which lead to a reusal than an

individual Members perceptions.

Although a panel o Members has been consist-

ently rejected by Government because o the cost

involved, the cost o poor decision-making to asylum

seekers cannot remain unaddressed. It is anomalous

that the Migration Review ribunal (the MR) can

convene a multi-member panel but in act seldomdoes so. Te issues involved in assessing protection

visa claims are arguably much more complex and there

should be a mechanism or convening a multi-member

panel especially or cases that have been remitted

by the Courts. Tis option would be less costly thanlitigation that sees cases bouncing back and orward

rom the ribunals.

Recently the Minister or Immigration announced

the appointment o ve senior Members to the RR

based on merit. Tis is certainly welcome but does not

address the issues above. Te powers o the RR that

have been augmented, through legislation, particularly

regarding natural justice principles and through judicial

decisions, have created an inequity between an asylum

seekers rights to a air and impartial hearing and the

ribunals powers to consider and dispose o cases inways ofen beyond the scope o judicial review.

III THE COURTS AND JUDICIAL REVIEW

Judicial review o asylum seekers cases is limited to

whether the RR made an error o law not an erroro act. Administrative law and reugee law are entirely

distinct and the current process does not permit

judicial review o a case on its acts.Tis means that a Court will not re-hear the

evidence and arrive at its own decision about whethera person is a reugee or not. In most cases judges have

expressed sympathy or an asylum seeker but at thesame time reused an application on the basis that it

could not engage in review o the acts o the case.

As most decisions o the RR turn on issues o act

and the credibility o an asylum seeker, asylum seekersace a real challenge in demonstrating that the RRs

act nding process amounted to an error o law.

Errors o law include:

l Identiying the wrong issue;

l Ignoring relevant material in coming to a decisionthat could have altered the decision (although

the RR is not bound to reer to every item omaterial relied on by the applicant);

l Relying on irrelevant material in coming to adecision;

l Making a decision that breaches natural justice

principles eg because o actual/apprehended bias;l Denying procedural airness, eg reusing to hear

rom a key witness in a case;

l Misconstruing the meaning o persecution, themeaning o Membership o a particular social

group, the relocation principle or another ReugeeConvention denition;

l Making a nding that is unsupported by evidencewhich is critical to the ultimate determination.

Errors o law do notinclude the ollowing:

l A material error o act leading to a wrong

conclusion;

l Illogical and irrational decisions.

However, most asylum seekers appeal a RR

decision because they eel their case has not beenproperly assessed.

In the absence o air processes and consistentdecision-making by Members skilled in inquisitorial

not accusatorial questioning and in assessing evidence,errors o act leading to a critical adverse nding should

be open to judicial review.

Tis approach has been advocated by adminis-trative law academics such as Dr Chris Enright (2000),

who argue that i an error is made in nding a materialact or in applying law to acts, the consequence is that

the law will not operate as intended by the legislature.

Many would argue that there are policy reasons

against this such as increased delay and cost in thecourt system, particularly by asylum seekers pursuing

unmeritorious claims. Others argue that i there is too


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1. The s.417 process

Where an asylum seeker has been unsuccessul beore

the RR, they can seek ministerial intervention under

s.417 o the Migration Act which provides that the

Minister can substitute a more avourable decision than

that o the RR i it is in the public interest to do so.

Te Ministers power is discretionary, non-reviewable and non-transparent.

DIAC and the RR have the power to reer a case

to the Minister however these reerrals have been

inconsistent. In most cases an asylum seeker has sought

Ministerial intervention arguing the circumstances o

their case are unique and exceptional and it is in the

public interest or the Minister to intervene.

Te Minister has guidelines regarding the matters

that should be brought to his attention in considerationo exercising his powers to intervene, including:

much judicial scrutiny, the legitimacy o the RRs

decisions will be undermined as the RR may take less

care as the court will make the real decision.

Tese arguments can be answered. Unmeritoriouscases are pursued through courts throughout every

jurisdiction and courts retain powers to dismiss these

where appropriate.

At present the pendulum has swung too ar - away

rom condence in consistent and good decision-

making by the RR, so that judicial review o cases on

their acts is merited.

Such a development combined with ongoing

education, training and appointment o the best

possible Members to the RR may lead to betterdecision-making and remove the excesses and errors

that currently remain and obviate the need or judicial

review.

Author and barrister Roz Germov states,

...the traditional grounds upon which

judicial review can be sought should be

expanded to include material errors of

fact, illogicality and irrationality as well as

failure to make ndings on independent

corroborative evidence. These grounds

would need to be further dened sothat they do not create a free for all.

Unmeritorious cases will always be

pursued and there is nothing you can

do to stop them people will appeal

even a good decision just to buy time.

It is difcult to nd any way around this

in a jurisdiction in which there are many

unrepresented applicants. Perhaps a

way to minimise unmeritorious litigation

is reinstate reasonable legal aid for

people who cannot afford to pay

for representation legal aid did notsupport litigation in civil cases where

there are no reasonable prospects of

success.

I still think that if you improve the quality

of decision-making below, that will be

a signicant way to reduce the level

of litigation.8

8 Extract rom an interview between Roz Germov and the writer on 12 March 2009.

IV REQUESTS FOR mINISTERIAL INTERVENTION


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l A risk to an asylum seekers security, humanrights or human dignity on return to their

country o origin;

l Australias obligations under the InternationalCovenant on Civil and Political Rights, the

Convention against orture and the Conventionon the Rights o the Child;

l Whether an asylum seeker is a member o anAustralian amily unit;

l Whether an asylum seeker has exceptional skills;

l Te length o time an asylum seeker has lived in

Australia;

l An asylum seekers physical and mental health;

l Issues o statelessness and other considerations.

Te s.417 process has highlighted the enduringinequities o the current reugee determination system

and the ongoing cost to asylum seekers and thecommunity.

Many asylum seekers reach the s.417 process nothaving had a air hearing or having had questionable

decisions made in their case. However these are ofenthe cases where ministerial intervention is least likelygiven the assumption that is made that these asylum

seekers have exhausted their legal appeals and havebeen ound not to be genuine reugees.

Te process is also inecient - asylum seekersare required to pursue unmeritorious reugee claims

through the review system in order to make a requestor ministerial intervention. Tis means that relevant

humanitarian issues are raised at the end o the process,rather than at the beginning.

Te process also means that the Minister isresponsible or a considerable caseload and is the

sole arbiter o decisions aecting peoples lives. In hisaddress to the 2008 National Members Conference ofthe Migration Review Tribunal and Refugee Review

Tribunal (2008) the current Minister has likened hisrole to playing God and stated:

ministerial intervention offers no

guarantee of fairness.

While tribunal Members and judicial

ofcers make their decisions and

judgments in accordance with

appropriate guidelines decisions and

judgments that are, in turn, open to

review there are no strict guidelines for

the exercise of ministerial discretion.

There is no way of really knowing what

factors inuence the ministers decision

in individual cases.

And there is no avenue of appeal from

a bad decision, and no way to prevent

an abuse of power.

There is no consistency in the decision-making because different ministershave different personalities anddifferent ways of thinking.

When an asylum seeker makes a rst request they

are granted a Bridging Visa E without work or studyrights or access to Medicare. In some circumstances an

asylum seeker may have had work and study rights andaccess to Medicare up to that point; these rights are lost

when they seek ministerial intervention.

From a decision-making process perspective, the

concerns below have been identied, although they areby no means exhaustive.

2. Dilution of claims

Many requests made or humanitarian interventionhave squarely met the Ministers guidelines or

intervention; yet this inormation has ofen beendiluted by DIAC ocers. As a rule, the Minister does

not receive a complete le, but a summary compiled byDIAC. Summaries are subjective, and in some cases, the

summaries submitted to the Minister include unrelatedconsiderations and a lack o detail o the humanitarian

issues in a case.

CASE STUDY #19

A aslu sr fr Afra wh arrd Australa 2000 was usussful hs prtt

sa applat ad subsqut appals. i 2007 h ldgd hs thrd rqust fr mstral

trt ludg th gruds that h was arrd t a Australa tz, was a stp


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fathr t a ug hld, had ld Australa fr 7 ars ad had b statlss g hs

ablt t bta a tral dut.

In the summary prepared by DIAC ofcers for a former Minister and obtained underFOI, th

rst issue raised was the court debt that the asylum seeker had incurred while challenging

th RRTs ds t rfus hs prtt applat. H had as f rpag th

urt dbt g that h dd t ha wr rghts, whh h lst wh h sught mstral

trt ad was plad a Brdgg vsa e.

Hs thrd rqust fr trt was rfusd.

Aftr ars f trg usussfull t bta a tral dut, DiAc rtl rfrrd th

as fr asssta wth a furthr rqust th gruds f th aslu srs statlssss.

yars f dla uld ha b add f th mstrs gudls had b bsrd at th

rst request.

A ds t hs furth rqust s pdg.

3. PresentingtheRRTsfndings

regarding humanitarian claims

Despite the current jurisdiction o the RR not

extending to consideration o humanitarian claims, in

some cases the RR has reerred to humanitarian issues

even though it has stated that they remain within the

sole discretion o the Minister.

More recently, changes have been discussed with a

view to enabling the RR to reer a case to the Minister

or consideration; however it is dicult to see how this

could work consistently given the ribunals statutorily

dened unction, which is to decide whether a person

satises criteria or a Protection Visa.

Where any RR reerences are made to

humanitarian issues, asylum seekers are undeniably

assisted at the s.417 stage; however this is premised on

the Minister being made aware o the ribunals ndings

or comments. In the absence o this inormation being

presented, even the most compelling humanitarian

cases can be reused.

CASE STUDY #20

A aslu sr fr Asa appld fr a Prtt vsa tgthr wth hs wf ad tw adult

dpdat hldr.

S f hs hldr wr lg Australa as prat rsdts r tzs. o hld

rad th utr f rg.

Hs Prtt vsa applat was rfusd b DiAc ad th RRT. Hwr ts ds thRRT rfrrd tsl t th huatara ssus th as, tg th hstr f l th

aslu sr had durd: hag b a prsr f war as a hld, lg thrugh l war,

hag hs h burt dw ad sapg attas th la ppulat. Hs fral halth

ad ag wr td as was th pat f sparatg th aslu sr ad hs fal

fr thr hldr Australa. Th RRT ludd a sparat paragraph ts ds ttld

Humanitarian Considerations whh was uquall tdd t supprt a huatara

rqust fr trt.

In the summary prepared to the Minister obtained under FOI, the Tribunals ndings were

rdud t st twards th d f th frat ad statd, The RRT found Mr [X]

did not have a well founded fear of persecution and that Mr [Xs] claims were predominantly

humanitarian factors which solely remained matters for the Ministers discretion.

Th mstr rfusd t tr.


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Whlst t s pssbl t w what prsuadd th mstr t t tr, t s hghl

ttus fr DiAc t sst, as th ha d, that th mstr had all th salt

frat th as.

Despite repeat requests having been made, including on the basis that the RRTs ndings were

t put t th mstr thr trt, DiAc has t rfrrd th as aga fr sdrat.

i otbr 2008 DiAc statd that th as wuld t b rfrrd t th mstr, partl

baus frat was rd that indicates that medical attention for the conditions

suffered by Mr [X] can be accessed locally at the health clinic wr h t rtur t hs utr

f rg. mr x suffrs fr dabts, hprts, TB ad gut ad ths ha l b

sussfull tratd Australa.

Ths aslu sr ad hs spus, wh ar ldrl ad fral halth, ad thr tw hldr

w fa ral.

4. Repeat requests and ne information

History over the last seven years has shown thatministerial intervention is least likely to occur on a rstrequest.

Once a rst request has been reused by theMinister, an asylum seeker is expected to make

arrangements to depart.

Any repeat request made or intervention is

assessed by the Ministerial Intervention Unit (MIU)within DIAC in each state. At present and ollowing

new Ministerial Guidelines on Ministerial Powerswhich came into eect in December 2008, a repeat

request is not reerred to the Minister unless thereis signicant change in circumstances which raisenew, substantive issues not previously provided or

considered in a previous request

Although this is the requirement, what hasconstituted signicant change, new and substantiveinormation has been questionable.

It is highly contentious or decision-makers at MIUto insist that new inormation led to repeat requests

being reerred to the Minister. While interventionis welcomed in all these cases, the process cannot

remain unquestioned. In most repeat requests, thecircumstances that were raised in a rst request were

raised in subsequent requests, such as the reason whya person could not return to their country o origin,

their amily composition in Australia and the length otime they had lived in Australia. Tese were ultimatelywhat led to an intervention.

CASE STUDY #21

A aslu sr fr Asa appld usussfull fr a Prtt vsa. Sh ad hr husbad

had ld Australa fr alst ght ars ad appld fr stral trt fur ts

bfr th wr apprd. Th frat prstd ah rqust had t hagd: th

circumstances of their eeing and why they could not return; their daughter was an Australian

Prat Rsdt; th had fal lft thr utr f rg; th aslu sr had

sblgs wh wr all Australa tzs; ad sh ard fr hr hrall ll sstr.

In other cases new can only be dened as inormation that loosely alls within the Ministers guidelines

or intervention and certainly o less importance than the inormation that did all within the guidelinesbut was disregarded. In our recent experience this is the way that the legacy cases are being reerred orministerial consideration.


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CASE STUDY #22

A 50 ar ld aslu sr fr Afra appld usussfull fr a Prtt vsa 2004

th bass f th prsut hs utr. Hs fal has b hdg s h lft hs

utr. i Australa h had a str ad suffrs fr hr pr halth. H rqurs dal

dat ludg bld thrs, whh h at bta hs h utr.

Tw rqusts fr stral trt wr rfusd.

A thrd rqust ldgd 2008 rstatd th pllg atur f hs as ad hs halth ds,

whh wll g ut f h s rturd.

Th thrd rqust was rtl rfrrd t th mstr dspt thr bg w frat

prstd b hs adats.

Tere is no merit in continuing with the line that it is new inormation that is leading to a reerral,

as opposed to political and cultural change and an understanding o the human cost involved in leavingthese cases unresolved.

CASE STUDY #23

A aslu sr fr Asa arrd Australa wth hr husbad ad thr daughtrs 1996

ad appld usussfull fr a Prtt vsa.

Sh ad hr husbad sparatd whl Australa ad sh ad sral rqusts t sta Australia with her children. The information in her fth request was not new, although it was

pllg. Thr wr rss t hr ad hr ugst daughtrs saft f rturd as fald

aslu srs. Tw f hr daughtrs had b Prat Rsdts Australa ad th

fal fad sparat f th wr rturd. All thr daughtrs wr studg at urst

shlarshps ad wr ptal studts. cutlss ut supprt had b

prdd datg th fals ll f tgrat Australa r th 12 ars th had

ld hr.

The asylum seekers fth request was successful.


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Te time or a system o complementary protection inAustralia is long overdue. At the time o writing this

paper the Federal Government has just announcedthat almost $5 million will be dedicated to establishing

such a system.

While such a reorm would be welcome, the

dangers regarding the quality and consistency odecision-making remain. Education and training o

decision-makers in assessing claims under a systemo complimentary protection is imperative given the

concerns identied above.

Under such a system, DIAC will assess an asylumseekers claims under the Refugee Convention and i

reugee criteria are not met, go on to assess particularprotection needs arising under other relevant human

rights treaties such as the Convention Against Tortureand International Covenant on Civil and Political

Rights, where Australias obligations not to reoule orreturn an asylum seeker where they could ace torture

are invoked.

Jane McAdam (2008) states that,decision-makers would continue to

rigorously test and develop the boundsof the refugee denition in accordancewith evolving human rights normsand comparative jurisprudence, butwould also have additional groundson which they could grant protectionin accordance with Australiasinternational obligations.

o date, DIAC and the RR have been reluctant

to take an expansionist approach to reugee andparticularly to humanitarian claims. Te cases where

this has happened have been the exception.

I they are to have increased responsibility and arole to play in the development o reugee and human

rights law, then ongoing education and training as wellas a robust system o review must remain a priority.

V COmPLEmENTARY PROTECTION


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Once an application or a Protection Visa has been

reused, an asylum seeker is barred by s.48A o the

Migration Act rom making a new application. Only

ministerial intervention pursuant to s.48B o the

Migration Act can permit an asylum seeker to make

a new application. However there are guidelines that

need to be metin order or this to happen including

that any additional inormation provided must:

1] appear to be credible;

2] be Convention-related;

3] enhance the applicants chance o making a

successul claim;

4] not have been provided previously or plausible

and compelling reasons.

Te Guidelines also provide that any non

refoulement9 obligations under the Refugee Convention,

the Convention Against Torture and the International

Covenant on Civil and Political Rights must be taken

into account when considering exercising powers

granted by s48B o the Migration Act.

Te concerns with s.48B mirror those with

s.417 the ministerial process is discretionary, non-

reviewable, non-transparent and ofen lengthy.

Furthermore, the most vulnerable asylum seekers

seeking to make use o s.48B are ofen aced with

credibility issues surrounding the late disclosure o

inormation, or there has been an insistence by DIAC

that they obtain evidence, which they cannot get, to

prove their claims. Tis has been the recent experienceor women disclosing domestic violence, sexual assault

or tra cking, relevant to a reugee claim.

For women making a late disclosure o domestic

violence, this may be because she does not have insightinto the nature o the amily violence as a crime, she is

not aware it may be relevant to reugee claims or she

held ear o retaliation i she separated rom an abusive

partner.

For women making a late disclosure o sexual

assault or tra cking this may be because o reasons

including culture and shame, a lack o trust or a lack o

hope until that time.

Decision-makers have displayed a lack o sensitivity

to these issues and applied s.48B inconsistently.

In its current orm, Australia is also at risk o

breaching its international obligations towards asylumseekers, particularly its non-refoulementobligations.

Asylum seekers who have applied under s.48Bincluding on the grounds that new inormation has

come to light, such as Summons or Warrants o Arrestbeing issued against them in their country o origin,

have not always been successul.

9 Te obligation o non-reoulement is ound in Article 33(1) o the Refugee Convention which states: No contracting State shall expel or

return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account

of his race, religion, nationality, Membership of a particular social group or political opinion . Te obligation is enshrined in Article 3 o

the Convention Against Torture which prohibits the return or transer o any person to a country where there are substantial grounds or

believing he or she would be at risk o being subjected to torture.

VI SECTION 48B OF THE mIGRATION ACT


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wo seminal reports have been prepared regarding

the return and removal o asylum seekers: ReturningFailed Asylum Seekers from Australia (Corlett, 2007)and Removing Seriously Ill Asylum Seekers from

Australia (2007).

Te recommendations in these two reports arecomprehensive and commendable.

From the outset it is acknowledged that there is nocomprehensive term to cover the situation or asylum

seekers who ace return. Te concepts o voluntary

and involuntary are problematic, given the coercive

range o measures open to DIAC to ensure that asylumseekers leave Australia. It is appropriate to use the word

remove or deport in some cases given the duress thatwas involved.

Critical issues that remain unaddressed includetness to travel assessments, in the absence o judicial

or independent oversight and the process itsel. Teseare concerns which aect both asylum seekers in

detention or in the community.

CASE STUDY #24

i otbr 2007 a aslu sr was dprtd. H ad hs fal had b prsutd

thr utr f rg ad th RRT aptd h had a wll-fudd far f prsut

pltal gruds but fud that h uld rlat hs utr. At th t f hs dprtat

h had spt appratl thr ars dtt. i dtt h was dagsd wth

ajr dprss ad Pst Trauat Strss Dsrdr. H had slf-hard urus

ass.

A wrtt rqust August 2007 fr a updatd tal halth asssst was t wth th

following response from the Detention Health Services ofcer:

Thanks for forwarding [the lawyers] concerns regarding Mr X to Detention Health. I

have sought advice from IHMS regarding Mr Xs mental state and suitable access to

mental health ser

Documents

Case Justice