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MICHAEL CHAAYA[*]
In early 1997 the Minister for Immigration and Multicultural Affairs (the Minister) proposed a number of sweeping changes to the role of the Migration Internal Review Office (MIRO), the IRT and RRT. In a press release announcing the changes, the Minister explained they are a necessary part of improving the flexibility and performance of the tribunals in the merits review process.[4] A number of significant amendments to the Migration Regulations were introduced on 1 July 1997.[5] In addition, the Federal Government has recently introduced legislation designed to amend the Migration Act 1958 (Cth) so as to give effect to the remaining proposals.[6]
This article is a critical assessment of the reforms contained in Bills 4 and 5 and Statutory Rules 1997 (Nos. 109 and 185). For the purposes of this evaluation, it is important to establish whether or not there are any innate differences in the work of each tribunal and if so, whether the new arrangements for migration review will recognise these differences. At the centre of this discussion is the debate over whether it is legitimate to include refugee decision-making as part of the immigration portfolio.
After canvassing the existing legislative procedures and operational statistics for MIRO, the IRT and RRT, I examine whether the purported shake-up of the immigration review system will address the apparent failings of the present system. I will argue that the new measures whilst designed to minimise alleged abuse of the migration review system will themselves prove abusive of the fundamental human rights of immigrants, and of refugee claimants in particular. It is my view that some of the proposed reforms are motivated by political expediency rather than by genuine concerns about efficiency and costs. The overt attempts to further judge-proof migration decisions are also part of a larger political agenda that goes to the question of the role of the (unelected) judiciary in a parliamentary democracy.[7] The article concludes that there is more merit in calling for alternative reform measures such as improving the tribunal appointments process, using this as a platform for a more comprehensive shake-up of the administrative review of migration decisions in line with the Administrative Review Councils proposal for an Administrative Review Tribunal (ART).
The system for merits review in the migration portfolio developed from amendments to the migration legislation in 1989 as part of a package of reforms designed to streamline and codify migration decision-making.[8] The primary purpose of the reforms to the merits review system was to improve the fairness and efficiency of migration appeals, with the hope of reducing the growing reliance on judicial review. The legislative amendments in 1989 established a two-tiered system of merits review namely, MIRO and the IRT. The formation of the RRT followed in July 1993.[9]
The following description of the current legislative procedures for MIRO, the IRT and RRT is a useful starting point before examining whether the suggested reform agenda will be effective in improving the review of migration decisions.
The tables which are also created below allow for a comparison of the operational statistics for the review bodies derived from data provided in their respective Annual Reports for 1994-95 and 1995-96.
MIRO is currently a unit within the Department of Immigration and Multicultural Affairs designed as the first tier of merits review of certain migration decisions.[10] Under Part 5, Division 2 of the Migration Act 1958 MIRO officers stand in the position of the original decision-maker and re-assess the application to see whether they think it was the correct or preferable decision (subsection 341(1)). In making a review determination, a MIRO officer can decide to either affirm the decision; vary the decision; remit the matter for reconsideration; or set the decision aside (subsection 341(2)). If the decision is affirmed, the applicant is advised of the reasons for the decision and whether any further merits review is available at the IRT level (section 343). It is also important to note that the use of MIRO by aggrieved applicants comes at a cost of $500.00. The objective of MIRO is to provide internal merits review which is fair, just, easily understandable, quick and cost efficient.[11]
Table 1: Miro Operational Statistics[12]
|
|
Staff
(yrs)
|
Total
Budget
|
No. of new
Applications
|
Cost per
case
|
Productivity
|
Processing
time
|
Average age of all active cases
|
|
1994-
1995
|
181
|
$2.335m
|
4911
|
$552
|
157 cases per
officer
|
129 days
|
112 days
|
|
1995-
1996
|
48
|
$2.854m
|
5571
|
$591
|
136 cases per
officer
|
124 days
|
124 days
|
The IRT is the second tier of the migration merits review system which conducts independent final merits review of certain decisions.[13] These include decisions made by MIRO, or certain visa cancellation decisions and decisions to keep noncitizens in immigration detention. The IRT s statutory objective is to provide a mechanism of review that is fair, just, economical, informal and quick (section 353). In pursuit of this objective, the Tribunal adopts informal and non-legalistic review procedures which are not bound by the rules of evidence, legal forms or technicalities associated with the traditional adversarial hearing. An application fee of $850.00 is required to commence an IRT application. In making its decision, the IRT has determinative powers and thus may affirm a decision under review; remit the matter for reconsideration; vary a decision; or set it aside and substitute a new decision (subsection 349(2)). Applicants to the IRT dont have a legal right to be represented by a lawyer or advocate but are able to seek advice in order to prepare their application.
Unlike MIRO and the IRT, the RRT is designed to deal with a specific aspect of our migration program in Australia, namely decisions concerning onshore applicants for refugee status. The RRT is independent of the Department of Immigration and Multicultural Affairs (DIMA) and operates according to Part 7 of the Migration Act 1958. Identical to the IRTs statutory objective, the RRT is required to pursue a mechanism for review which is fair, just, economical, informal and quick (subsection 420(1)). As such, the RRT adopts similar processes to the IRT insofar as there is no right to legal representation and the rules of evidence are relaxed. The RRT has the power to agree with DIMAs decision; vary the decision; remit the matter for reconsideration; or set aside the decision (subsection 415(2)). Appeals against the RRTs decisions (as with the IRT) can only be made on a point of law to the Federal Court. Until recently there was no application fee to the RRT. However, as of 1 July 1997 a post-decision fee of $1000.00 for unsuccessful RRT applications will apply.[14]
Table 2 below is a comparison of the operational statistics for the IRT and RRT. It illustrates that in terms of productivity, the IRT comes out ahead, deciding on average 24 cases more than the RRT. When viewed in dollar amounts, the absolute cost of the RRT is just over $15 million compared to almost $7.5 million for the IRT. This is a significant difference given the trend in the number of new applications received. Between 1994-95 and 1995-96, the number of new applications for the RRT increased by 10 per cent compared to a 59 per cent increase in the IRTs caseload. While this would suggest that the IRT would have required a substantial increase in funding to cope with the increased demand, it experienced an increase in its budget of 23 per cent only one percentage point greater than the 22 per cent increase in the RRTs budget. This again is an interesting discrepancy which may be explained by the intricacies of refugee determination, or simply a poor productivity rate within the RRT. In either case, the data supports the proposed reforms in relation to streamlining review procedures and giving tribunal members greater flexibility in managing applications. However, as outlined in the evaluation of reforms which follows, these figures also give further currency to those who would strongly argue for the merging of the IRT and RRT as an immediate reform measure.[15]
The assessment of the proposals will take place in two stages. Firstly, I will describe how the proposals will change the existing system as described above; and secondly, I will evaluate them according to their subject matter under two categories: amendments to the Migration Regulations which came into force on 1 July 1997; and various proposals to amend the Migration Act 1958 (Cth) found in Bills 4 and 5.
(i) Increased Cost of MIRO and IRT Applications As of 1 July 1997 fees for review applications were increased from $200.00 to $500.00 for MIRO, and from $500.00 to $850.00 for the IRT.[16] The increase in fees for those seeking merits review is reflective of government policy to move towards total cost recovery.
The policy of total cost recovery which drives this increase in fees is closely linked to the suggestion that applicants should pay something towards the cost of their case, however insignificant. In Tables 1 and 2 above it was revealed that the average IRT and MIRO case cost $3270.00 and $591.00 respectively. If the theory of total cost recovery is taken to its logical conclusion then we can expect alarming increases in the IRT application fee in the future.
For many applicants on a low income the prospect of a tribunal application fee of $850.00 is bound to obstruct the pursuit of merits review. It remains to be seen whether the new fees will discourage applicants who are genuine and have a legitimate claim for migration to Australia but simply cannot afford to pursue their appeal rights. In fact, this reform measur justified in terms of total cost recovery may simply be masquerading as an indirect means of deterring people from seeking merits review and ultimately judicial review. Even if the shift towardstotal cost recovery is justified, this proposal merely serves to further reinforce the view that the migration system is set apart, and treated differently from, other areas of the bureaucracy.
For example, Rubenstein argues that if government policy in areas outside immigration operates so as to limit individual rights such as the right to merits and/or judicial review for social security decisions, for example those who are affected can lodge an objection at the next election by virtue of their citizenship and right to vote.[17] Migration law, however, is a curious example of what Rubenstein refers to as citizenship representing exclusion from political influence. Her argument is that migration law, in particular, is an area of policy that is essential to the identity and content of the community. It decides which person will be members of the community it decides which people become citizens, who in turn will influence the outcome of further policy.[18]
Rubensteins primary thesis is appealing insofar as it develops a useful analysis of our migration scheme and the way in which it excludes non-citizens from the democratic process. For present purposes it illustrates another unique feature of migration decision-making which needs to be considered when framing options for reform. It is of value to recognise the special nature of migration decisions and how they differ from other areas of the bureaucracy. Yet singling out the immigration portfolio as one which requires less litigation and a special regime for the exclusion of normal administrative law principles[19] is something entirely different. It is argued here that the imposition of a high application fee lacks any foundation, and by no means justifies exempting the immigration portfolio from the low levels of fees (if any) which have generally been accepted in the overall scheme of Commonwealth merits review.[20]
More importantly, if the Minister succeeds in merging MIRO and the IRT[21] there are bound to be considerable cost-savings which ought to be redirected to the delivery of service by the review bodies concerned. In other words, the increase in the application fees because of the increasing burden of cost-recovery contradicts the Ministers plan to effectively reduce costs by merging MIRO and the IRT. In any case, the increase in average cost per MIRO and IRT decision between 1994- 95 and 1995-96 has been marginal 7 per cent and 4 per cent respectively (see Tables 1 and 2 above). By contrast, the extension of the application fees to $500.00 and $850.00 respectively represents a 150 per cent increase from the previous $200.00 MIRO fee, and a 183 per cent increase in the pre-existing fee of $300.00 for the IRT.
(ii) RRT Post-decision Fee of $1000.00 As of 1 July 1997 a new post-decision application fee of $1000.00 applies to the RRT.[22] The Government has argued that this change is not intended to impose a burden on bona fide refugees and will act as a deterrent for people intent on abusing the system. The $1000.00 fee will only be payable if the RRT finds that the applicant is not a refugee.
The introduction of a post-decision application fee of $1000.00 for the RRT, whilst reflective of the wider move towards total cost recovery in public administration, does not sit comfortably with Australias human rights obligations. For refugees who in many cases dont have any source of financial security this measure is erroneous. It may discourage abuse of the refugee determination system, but this proposal may in fact come at the cost of penalising refugee claimants who are genuine yet have complicated fact situations that may allow the final determination to go either way. That is, the $1000.00 post-application fee will become a disturbing issue in areas of refugee decision-making where neither the courts nor the RRT have a consistent approach to refugee decision-making. For example, the treatment of refugees who claim persecution on the grounds of homosexuality; because they are the target of domestic violence;[23] or due to Chinas one child policy[24] makes the issue of refugee determination highly complicated in contemporary terms. The insistence on a $1000.00 fee in these areas would amount to a gross neglect of our obligations under various international conventions. Putting the humanitarian argument to one side, in economic terms, the operational figures in Table 2 above for the RRT show the cost per RRT decision has stabilised with a marginal increase over the previous two financial years which is largely explained by superannuation costs. If the Government is primarily concerned with recovering the cost of merits review decisions, it should refrain from penalising refugee applicants and look at alternative reform measures which would be favourable in both humanitarian and economic terms.
(iii) Restricting Refugee Work Rights and Reducing Delays in Merits Review Where a protection visa application is made on or after 1 July 1997, access to work rights will be limited to those people who have been in Australia for less than 45 days in the past 12 months.[25] This restriction is designed to discourage frivolous or vexatious review applications, and compel people to make a refugee application within 45 days of arrival. In addition, the period in which an unsuccessful onshore applicant can seek merits review will be reduced from 28 to 21 days for MIRO and the IRT.[26] This proposal is seeking to shorten overall processing times within the merits review system by forcing applicants to seek review within 21 days of a decision. The time limit for applications to the RRT will remain unchanged at 28 days from being notified of an adverse decision.
Much of the momentum for these three proposals stems from a time honoured conflict the Australian executive has experienced with the courts. Indeed, the belief that responsibility for migration decision-making should rest with the executive and not with the judiciary is still firmly held by the current Federal Government.[27] Although the establishment of the two-tiered system of merits review in 1989 was flagged as a resolution of the conflict between these two arms of government by decreasing the possibility of legal challenges[28] the migration control principle continues to dominate the policy agenda. In some respects, this peculiar struggle for control, which has no counterpart in any other area of administrative law, explains why migration reform has always been driven by the view that immigration is a law unto itself.[29]
The Minister has argued that restricting work rights to those refugee applicants who have been in Australia for less than 45 days in the past 12 months will improve delays, discourage frivolous review claims, and give greater priority to processing straightforward applications in a shorter period of time. This argument assumes, however, that the problem of delay is a product of the applicant themselves making use of administrative review rights which are available as a matter of course in most other areas of public administration. In this respect, these proposals typify the view of Rubenstein referred to above which states that our migration system (in particular the concept of citizenship) is premised on exclusion rather than inclusion. For example, if the proposal to limit work rights is adopted then on a pragmatic level it is open for any applicant to ask the Department how the Federal Government expects asylum seekers to survive during the months (and in some cases years) until a definitive ruling is made on their application.
The rationale for these proposals is easy to accept, and one would be hardpressed to argue against improving delays in the merits review system. Nevertheless, what is problematic is the substance of the amendments designed to remedy the situation. In the view of this author it is disappointing that the Government has chosen to focus on controlling the applicants, instead of genuinely improving the merits review process itself. The Canadian experience with appeals in the migration system highlights the benefits in the refugee context of screening out vexatious applications at the departmental level.[30] Introducing a similar mechanism in Australia would reduce the potential burden on the RRT and ultimately judicial review. Another anomaly which seems unique to Australia is the fact that applicants who are seeking humanitarian entry via Ministerial discretion (that is, on the grounds of gross violation of their human rights) are required to exhaust our refugee determination process beforehand.[31] This obviously generates demands on the RRT would could easily be redirected elsewhere within DIMA.
(i) Structure of Merits Review Proposal 1. One of the key proposals in Bill No. 4 is to merge the existing internal review undertaken by MIRO with the external merits review body, the IRT. The Bill proposes a system of single-tier merits review to be carried out by a new body to be known as the Migration Review Tribunal (MRT).[32] The rationale for this proposal is that there is little to be gained from having three layers of merits review for immigration applications (primary decision by DIMA, review by MIRO, and review by IRT). Merging MIRO with the IRT is an effective cost saving exercise. The RRT under the proposal remains a separate body dealing exclusively with protection visa applications.
There is much to commend the proposal to merge MIRO and the IRT. For the IRT there is the potential to be closer to the source of many first-tier decisions which come under its jurisdiction, and share its resources in a genuine attempt to reduce the cost of merits review to the taxpayer. MIRO itself has been criticised for its lack of independence from the Department of Immigration and Multicultural Affairs (DIMA). On the one hand, the MIRO staff are independent of the Departments primary decision-makers and not subject to their control in the reassessment of individual cases. On the other hand, making this independence a functional reality is made difficult by the fact that it currently exists as an organisational unit of the Department. Other issues which have been identified as deficiencies in the internal merits review process include: the lack of a fresh look by MIRO; the delays in finalising applications; the absence of any oral hearing or direct communication between the review officer and the applicant; and the production of reasons which fail to adequately explain to the applicant the rationale for the decision.[33]
(ii) Tribunal Procedures and the Authority of Tribunal Members
Proposal 2.[34] Principal Members of Tribunals will be given clear authority to apply efficient processing practices such as the ability to give directions on the operation of the tribunals and the conduct of reviews. These and other changes to the tribunals are designed to improve flexibility and performance in decisionmaking, so that delays are reduced and more consistent decisions are made.
Proposal 3.[35] Personal hearings will be at the discretion of the tribunal member considering an application, and tribunals will be able to use telephone and other media to conduct hearings. In addition to the potential for improving processing delays, this proposal is attractive from a government perspective given the prospect of greater savings and improved flexibility with tribunal hearings.
One of the curious aspects of the codification of migration law was the failure to include any form of hearing code for oral hearings conducted by the review tribunals.[36] Under present arrangements the tribunals have fairly liberal powers for guiding an oral hearing. By promoting further authority to be given to tribunal members the Government runs the serious risk of returning to the days of the Immigration Review Panel (IRP)[37] and Refugee Status Review Committee (RSRC).[38] For example, it is difficult to fathom how it will be possible for the tribunals to conduct a hearing via the phone in accordance with the principles of natural justice. In the RRT context, it is virtually impossible to assess an application in the spirit of the UN Convention via a telephone link when in many cases an interpreter is required to assist the applicant. As a response to delays this proposal is not entirely appropriate as it may in fact be generating a longer waiting time for some applicants.
Another issue to be wary of as a result of affording greater discretion to tribunal members is the potential for the tribunals to simply become an adversarial inquiry with lawyers and migration agents urging members to allow them to represent their clients. There are a number of reasons why such a development would be undesirable. The main concern would be the potential legalisation of the merits review process, contrary to the initial design of the tribunals. Certoma, for example, has carefully outlined the many features of the IRT which indicate its suitability as a quasi-inquisitorial body: the most prominent being the Tribunals concern with the legality and correctness of the administrative decision itself rather than a party contest.[39]
Indeed, a bi-partisan debate in the Parliament recently concerning the introduction of Migration Legislation Amendment Bill (No. 1) 1996 focused heavily on the need to avoid legalising merits review of migration decisionmaking. In the context of extending the operation of the Migration Agents Registration Scheme, many of our parliamentarians spoke of the right which vulnerable migrants have to be protected from unscrupulous agents and lawyers, and the responsibility of Parliament to ensure an adequate system of merits review which does not hinder access to administrative justice.[40]
If it is accepted that the move towards administrative review of migration decision-making came as a response to the cost, delay and legal formalities associated with the traditional court process, then it would be disappointing for the IRT (and possibly the RRT) to wind back this ideological shift. Unless the resort to adversarial techniques is used intelligently and sparingly,[41] these tribunals run the serious risk of allowing for a legal hijack of administrative review of migration decisions.
These proposals are also problematic for other reasons. In an era of managerialism which is geared towards arriving at the correct or preferable decision by having regard to both the law and the principles of sound administration, the use of efficient processing practices by tribunal members as a cost-minimising exercise do not always allow for the most appropriate process in administrative review.[42] This is particularly so for migration decisions where a case can turn entirely on the construction of the facts as they are presented and how they sit within the specified criteria.
(iii) Eliminating the Judicial Review of Migration Decisions Proposal 4. Clearly the most contentious proposal in the sweeping package of reforms to the immigration portfolio is the privative clause in Bill No. 5 designed to oust altogether the judicial review jurisdiction for migration and refugee decisions.[43] By codifying what had previously been an open discretion and formalising merits review, the legislature at the same time broadened the field for judicial review of migration decisions, particularly in the area of refugee and humanitarian entry.[44] The introduction of Part 8 of the Migration Act 1958 (Cth), whilst designed specifically to eliminate the operation of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and other common law grounds for judicial review,[45] has failed to restrict the number of aggrieved applicants applying for judicial review by the Federal Court.
Motivated by the desire to control migration decision-making, the Federal Government is keen to remove all forms of judicial review and place the emphasis on the merits review process. This view has been expressed by the Minister for Immigration and Multicultural Affairs who recently stated: [T]he Governments pre-election policy commitment was that given the extensive merits review rights in the migration legislation, we would restrict access to judicial review in all but exceptional circumstances.[46] In pursuit of this objective, the Minister has proposed a privative clause which would apply to both the High Court and Federal Court, replacing the existing scheme for judicial review under Part 8 of the Migration Act.[47] The rationale for this suggested change is couched in terms of increasing dissatisfaction with the cost and delay associated with judicial review of migration decisions from many quarters. It is argued here that these concerns are clearly supported by the available evidence, but the proposed policy response is flawed.
It is arguable that a broadly worded privative clause would be ineffective in preventing the High Court from reviewing migration and refugee decisions. As Creyke[48] points out, the High Court would retain its jurisdiction to intervene in cases involving imperative duties or which overstep inviolable limitations or restraints.[49] A more fundamental concern in the view of this author is the potential impact of the privative clause on merits review. If enacted, the clause will place the onus on the Immigration and Refugee Review Tribunals to remedy the absence of any supervisory review of migration decisions. In effect, this would result in a paradigm shift in the nature of merits review in the migration portfolio. Rather than locating the best or preferable decision, the review tribunals will be looking at whether the decision is a lawful one. Not only will this generate a radical rethinking of the merits review process, but it is conceivable that applicants will simply be left with an inferior form of judicial review.
A further weakness in the proposed strategy to introduce a privative clause is the strong possibility that the consequent use of tribunal members investigating the lawfulness of a decision will offend the constitutional prohibition against the exercise of judicial power by non-judicial officers. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs,[50] the High Court examined the nature of the power to detain non-citizens in Australia and the degree to which this required judicial involvement. Although the High Court held that executive power to detain aliens was incidental to s51(xix) of the Constitution, it also found a section of the disputed legislation purporting to ban any court from ordering the release of a designated person was a usurpation of the judicial power located in Chapter III of the Constitution.
In light of Chu Kheng Lim, it is reasonable to suggest that the paradigm shift in merits review described above will be viewed as unconstitutional by the High Court should a challenge to the proposed privative clause surface. Similarly, the proposal to apply a $1000.00 post-application fee for RRT decisions has the potential to be characterised as a penalty which escapes judicial scrutiny, and thus unconstitutional for the reasons outlined by the High Court in Chu Kheng Lim.
Whilst these preliminary concerns remain to be tested, it is obvious that the Government is placing an unprecedented level of faith in the merits review system. In the opinion of this author, this is a dangerous development and one which may prove to be too narrow in scope and ultimately counterproductive. The preceding evaluation of the proposals for reforming merits review places some doubt on whether the Governments desired outcomes will be achieved.
In the haste to introduce reforms, the Federal Government appears to have overlooked the worthiness of differentiating between refugee law and migration policy. Although the Ministers press release announcing the proposals suggests the RRT will remain separate from the proposed MRT, the same document goes on to approve of the foreshadowed Government moves to introduce further reform of merits review tribunals which will consolidate all such tribunals into a new Administrative Review Tribunal (ART).[51] Part of the wider debate about migration law as a law unto itself is the more specific internal differentiation between refugee law on the one hand, and migration decision-making on the other. Whether or not the distinction is viewed as serving a useful purpose is a significant question because the answer ultimately shapes the model of merits review which is developed. If, for example, the distinction is abolished and the two areas come under the one decision-making umbrella, a radically different merits review system to what currently exists would obviously need to be implemented. The main attraction of subsuming the two areas into a single decision-making framework relates to cost and efficiency arguments which suggest considerable savings can be achieved as a result.
At the time of their establishment, both the IRT and the RRT were a controversial development. The Administrative Review Council (ARC), for example, has opposed the formation of both tribunals. In its 1986 report entitled Review of Migration Decisions, the ARC suggested the second tier of migration review ought to be located within the existing Administrative Appeals Tribunal (AAT), as opposed to a new tribunal such as the IRT.[52] The ARC reasoned that the AAT was a suitable review body for migration decisions, especially given its proven value as a review body in relation to criminal deportation decisions. The ARC subsequently reinforced this view in its 1988-89 Annual Report, arguing:
The logic of the integrated review system is that prima facie the AAT is the appropriate forum for merits review. ... Instead, the legislation provides for a specialist Immigration Review Tribunal ... with statutory internal review. This is the first significant example of fragmentation of the integrated review system and has been the cause of some concern to the Council.[53]
These concerns were again highlighted at the time the RRT was formed. In its 1991-92 Annual Report, the ARC expressed the following view:
The Council welcomed the decision to broaden the range of migration decisions to be subject to determinative merits review. The establishment of a new review tribunal, the RRT, however, was considered to be both unnecessary and undesirable, in the former instance because adequate and appropriate infrastructure for the provision of review of refugee status decisions exists in the form of the IRT and in the latter instance because the proliferation of review tribunals detracts from the simplicity and efficiency of the Commonwealth administrative review system, which is one of its major strengths.[54]
In the same year, the Committee for the Review of the System for Review of Migration Decisions (CROSROMD), while praiseworthy of the IRTs operations, questioned the need for a separate RRT:
[T]he Committee notes that there is potential for fragmentation of the migration jurisdiction and for undermining the integrity and consistency of decisions integral to Australias migration program. For this reason it believes that distinctions in the jurisdictions of tribunals must be monitored over time. In particular, as soon as the backlog is cleared in the new RRT, but in any event no later than two years into the life of the Tribunal, the Committee believes that the Government should examine the need for and viability of the RRT as a separate tribunal. Possibilities include integrating it with the IRT (perhaps with separate divisions), or integrating it and the IRT within a general AAT framework (perhaps in a separate division).[55]
Critics of the above view, however, allude to the fact that such integration on the basis of economic rationalism would come at the cost of observing the fundamental human rights of non-citizens, refugees in particular. At the same time, these critics argue that there is more logic in recognising a separate decisionmaking regime for refugees as opposed to those involved in the broader migration program. As our Human Rights Commissioner, Chris Sidoti, has argued:
The cause of our difficulties is that we are seeing refugee policy as a subset of immigration policy. It is not. The two have distinct legal bases with distinct and divergent consequences.[56]
He goes on to argue that our immigration policy is concerned with an expression of sovereignty of the nation state over its territory.[57] This is contrasted with refugee policy which is principally given effect under various international law obligations. It is this authors view that a balance can be struck between refugee law and migration policy. Instead of viewing the options presented above as polar extremes, it is arguable that a solution which adopts ideas from both sides of the debate would be feasible.
In a relatively short history of merits review in the refugee context we have witnessed a deliberate attempt by the executive to construct a system apart from the normal procedures associated with administrative or judicial accountability.[58] The fact that the RRT stands separated from the mainstream of merits review in the migration area and focuses entirely on one aspect (albeit an important one) of Australias broader migration scheme is a good illustration of this. As a result, we have come to appreciate the differences in refugee decision-making alluded to by Sidoti and others.
Equally meaningful though are the statistics related to the cost of maintaining two separate tribunals. The detailed comparison of operational statistics for both the IRT and RRT in Table 2 above reveals some interesting differences in workload and associated cost.[59] The RRT budget of $15.207 million is more than double that of the IRT ($7.446 million). The figures also illustrate a lower productivity rate for the RRT. While some commentators would suggest these differences are indicative of the more complex nature of refugee decision-making, others such as the ARC would use this primary evidence to bolster their push to have the tribunals merge into one body.
Indeed this latter point gives further currency to a recent report by the ARC calling for the establishment of a single Commonwealth Administrative Review Tribunal made up of a number of specialist units including a Migration Division.[60] Such a proposal, according to this author, has the potential to balance the policy imperatives of both migration and refugee law as well as provide a number of benefits. The most obvious advantage would be economic, with opportunities for efficiencies and savings, and more flexible use of resources.[61] Other benefits include the pooling of skilled tribunal members into one organisation, the establishment of a specialist immigration tribunal for our entire migration program, and the potential to increase the consistency of migration decision-making.
So long as the important distinction between refugee and migration decisionmaking is maintained (perhaps via the use of separate subdivisions within the one migration division) it would be desirable to extend the existing reform proposals so as to allow for the merging of the RRT and IRT. Other jurisdictions such as the United States and Canada have benefited from the use of a single tribunal with two discrete divisions for a number of years.[62]
As is evident from the above evaluation there are many issues which have not been adequately considered by the Government in terms of framing options for reform of the merits review system. Undoubtedly the explanation for the reforms which is grounded in terms such as total cost recovery, increasing flexibility and improved processing times is appealing in political terms. However, to the extent that the proposals come as a response to the alleged concerns with the existing system for merits review, it is argued here they are not entirely suitable. The following is a brief consideration of some alternative reform issues which have been neglected by the Government. They are viewed by this author as integral to any shake-up of the administrative review of migration decisions.
The manner in which the IRT and RRT are managed and administered ultimately determines the way they are viewed by applicants and the wider community, and the extent to which the statutory and other objectives of the tribunals are met. It is for this reason that an inquiry into the IRT appointments process in 1994[63] generated considerable interest in many quarters. In short, the investigation came as a response to concern that the Minister at the time had made some obvious political appointments to the IRT. In fact, two years later the legacy of these appointments remains largely entrenched. Given the previous Governments majority on the Joint Standing Committee on Migration, it was not surprising that the conclusions of the final report did little to question the Ministers bias in the appointments process. Instead, the majority noted:
[T]he main issues which can be deduced from this inquiry relate not to the calibre of appointments to the IRT but to the principles which govern tribunal appointments in general. ... At the conclusion of this inquiry, no substantive evidence is before the Committee which brings into doubt the integrity, skills and willingness of IRT members to undertake and carry out their statutory function in the review process.[64]
Despite the Committees reassurances, the appointments process was tarnished given the great deal of negative media interest surrounding the inquiry and final report[65] as well as a powerful dissenting report from Opposition members at the time, including Philip Ruddock, the current Minister.
If the Ministers viewpoint whilst in Opposition is any indication then we can certainly look forward to a major overhaul of the tribunal appointments process. Indeed, media comments made following the Coalitions victory at the 1996 election support this claim.[66] For present purposes, it is useful to briefly identify some issues which need to be considered when addressing the tribunal appointments process with a view to improving merits review. It was noted earlier that the productivity of the RRT was relatively poor compared to the IRT. It is suggested by some commentators that this may indeed be a reflection of the political appointments under the previous Government. Although this may explain part of the problem, there are some other suggestions identified here.
In order to effectively enhance and safeguard the credibility of the IRT and RRT, they need to be equipped with members with a wide range of skills and experience in the migration system, as well as the merits review process itself.[67] To avoid the politicisation of the appointments process and to ensure transparency, the Minister ought to be removed from the process until a broad-based selection panel assesses applicants against publicly-available selection criteria. Finally, the tribunal appointments process in the migration field should resemble (at least for the sake of consistency) the appointment procedures in other administrative portfolios. In the absence of such measures, the alleged independence of the tribunals from the government decisions they are reviewing is brought into serious question.[68]
Although the Minister has signposted the ARCs recommendation for an ART as something which is being seriously considered by the Government, there is no reason why the current reforms could not wait until a more detailed picture of the ART emerges. In essence, what we have at the moment is a set of intermediate reforms which are destined to be superseded by the introduction of an ART. The cost of insisting on the current administrative proposals would almost certainly be outweighed by the benefit of a more informed and systematic overhaul of the administrative review system at a later date.
For present purposes, there are two reasons why a concerted focus on the establishment of an ART which will subsume the migration merits review system is desirable. Firstly, as outlined earlier, the operational statistics for the RRT seriously question its continued existence as a separate tribunal. It is the opinion of this author that refugee determination is significant in terms of government policy, however it is difficult to justify the separation of refugee decisions from the mainstream. This point assumes added weight when we consider the fact that refugee applications are also sometimes simultaneously made with applications within the general migration program. Secondly, a single tribunal model which houses both the RRT and IRT is beneficial insofar as it would promote awareness of a single independent merits review tribunal and allow for greater cooperation and resource sharing by tribunals and their members.
Despite many statements by academic, judicial and legislative commentators that the principle objective of the new administrative law was to improve and maintain standards of fairness, equity and compliance with the law, there seems to be a lack of empirical research designed to measure whether this in fact has occurred in the immigration portfolio. The 1989 codification having been put in place, there appears to have been an assumption on the part of the executive that the desired changes in migration decision-making would automatically follow. The preceding discussion has shown this to be a flawed assumption. As Vrachnas has opined:
At present, there is a feeling that [migration] law is verging on chaos, particularly with everchanging attitudes and rules relating to asylum seekers. With the best will in the world, the Department will continue to be a frequent litigant in the Federal Court unless it slows the rate of change.[69]
This so-called chaos can also be seen as a result of the executives repudiation of arguments in favour of allowing a greater deal of flexibility at the time of the 1989 codification. It was argued that the introduction of further flexibility would simply lead to a loss of governmental control of the program and make the administration of the legislation difficult. With respect, the author submits that such fears were by no means justified. They were yet another indication of the executives desire to control migration decision-making to the exclusion of the courts. Interestingly, the current package of reforms refers in some detail to the importance of affording greater flexibility to tribunal members and hearing procedures. One may hypothesise that some of the current difficulties may not be a current reality had the executive agreed to this flexibility at an earlier stage in the development of merits review in the migration portfolio.
If the legislative response from the Government is any indication, it is evident that merits review in the migration system will be facing some fundamental changes. With the current political pressure to implement radical reforms, however, it is easy to underestimate the enormity of the task. In the view of this author, the most viable direction for reform is one which adopts a coherent and holistic approach to migration decision-making as opposed to the present system of ad hoc Government reaction to faults in the merits review process. The conclusion reached here is that the Government needs to undertake a serious rethinking of the reform proposals and consider more fully the implications of firstly, the tribunal appointments process, and secondly, the establishment of an ART.
To a large degree, the recent proposals simply epitomise the executives preoccupation with controlling the migration system. It is argued that irrespective of the political desirability of the proposals, the critical evaluation of them in this article has exposed some serious defects. For instance, the increased application fees for MIRO and the IRT, and the imposition of a $1000.00 post-application fee for the RRT are motivated by the issue of total cost recovery. Yet these changes fail to guarantee avoiding the situation where people find that justice is simply beyond their reach due to cost impediments. Relative cheapness and accessibility are among the main advantages which tribunals such as the IRT and RRT have over the courts. Currently, the fact that the tribunals remain relatively inexpensive has allowed individuals to pursue their right to merits review uninhibited by large cost barriers. This is under serious threat by the suggested reforms. At a more fundamental level, it was also opined that the ousting of judicial review via a privative clause may be struck down as unconstitutional by the High Court.
If the merits review system as discussed above is not perceived to be adequate, independent and fair, then this may act as a clear incentive for aggrieved applicants to pursue matters before the courts, where it is allowed, at an increasing rate. Alternatively, it may act as a disincentive altogether for applicants to pursue their rights within the merits review system. For the IRT and RRT to fulfil their functions effectively, people affected by primary decisions must be aware of their rights to merits review, and how best to take advantage of those rights.[70] As such, there is considerable merit in learning from the Canadian and US experience with merits review which is arguably instructive for domestic purposes. In addition to this, the Government needs to stand back from the continuous assault on the judiciary and focus its energies on ensuring that merits review is not short-sighted, but offers genuine procedural safeguards for applicants. As Cronin reminds us:
In the interests of constraining an apparently interventionist judiciary, the Government may have given up the capacity to do justice in a deserving immigration case. In the contest for control, the real losers are the controlled.[71]
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1997/28.html