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MARY CROCK AND MARK GIBIAN[*]
The High Court has granted the Minister for Immigration and Multicultural Affairs (the Minister) leave to appeal the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Moges Eshetu.[1] In so doing it has provided a forum for finally determining an issue that has been exercising the lower courts for some time. This issue goes to the continuing scope for the review of migration decisions by the Federal Court on grounds of procedural fairness, relevancy and reasonableness. Put another way, the case tests the efficacy of legislation introduced in September 1994 for the express purpose of constraining Federal Court review of most migration decisions on these “broad” legal grounds. Matters of statutory construction aside, the case also raises the perennial questions for public lawyers of where we should draw the line between fact (or merits) and law and in what circumstances a court should intervene in the review of a decision made by a specialist tribunal.
This case note begins with an examination of the facts in Eshetu and the way in which the applicant’s claim was determined by the administrators. There follows an outline of the Federal Court’s criticisms of the ruling. Part 3 of the paper is devoted to the interpretation of the provisions of the Migration Act 1958 (Cth) (the Act) which are sending conflicting messages to the courts about the role they should be playing in the review of migration decisions. Part 4 examines the difficult issue of whether this case raises issues that are properly within the domain of judicial, rather than administrative review. The paper concludes with some reflections on the factors that should be taken into account when considering the respective roles of tribunals and reviewing courts.
Mr Eshetu’s application for refugee status was rejected at first instance and an appeal was made to the Refugee Review Tribunal (RRT). This is a single member tribunal that operates in an inquisitorial manner. Hearings are held in camera and are rarely attended by anyone who is not involved directly in the hearing process.[3] While claimants are entitled to an interpreter and may attend hearings with an adviser, they have no right to legal representation and advisers may not address the tribunal unless requested by a member. Claimants have no right to examine or cross examine witnesses under a statutory scheme that leaves the conduct of hearings very much to the discretion of individual members.[4] Many members have no legal training, as this is not a requirement for appointment.
In the instant case, the RRT determined that Mr Eshetu was not a refugee because it was not satisfied that he had a well-founded fear of persecution by reason of one of the five grounds enumerated in the UN Convention Relating to the Status of Refugees. Article 1A of this Convention, as amended by a later Protocol, defines a refugee as a person who “... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” The tribunal accepted that Mr Eshetu had a strong subjective fear of persecution because of his political activities and the prevailing climate in Ethiopia, but found that the chances of him actually suffering persecution were remote.
Put simply, the tribunal did not accept that the detention and torture of 25 students had taken place. The RRT placed particular importance upon the fact that human rights agencies such as the Ethiopian Human Rights Council and Amnesty International were not aware of the alleged events, while other incidents involving student demonstrations, deaths and disappearances had been reported. In this respect the tribunal’s decision shows a curious acceptance of some aspects of Mr Eshetu’s evidence – sufficient to found a ruling that he held a genuine, albeit subjective, fear for his life. On the other hand, it rejected some of the evidence upon which Mr Eshetu alleged that fear to be founded.
When this case was taken on appeal to the Federal Court at first instance,[5] Hill J found the reasoning of the RRT legally unreasonable: in other words, he ruled that the exercise of the RRT’s power was so unreasonable that no reasonable person could have so exercised the power. However, his Honour declined to offer Mr Eshetu relief because he found that the terms of the migration legislation precluded him from so doing.
On appeal to the Full Federal Court, Davies and Burchett JJ agreed that the RRT’s ruling was legally flawed. They also found the RRT’s findings and reasoning process unreasonable, ruling that the tribunal had asked itself the wrong questions. However, their Honours did not share Hill J’s interpretation of the Act and so were prepared to intervene and order the remittal of the case to the RRT.
As is often the case in refugee claims, there was no direct evidence to corroborate Mr Eshetu’s account of the events leading up to his flight from Ethiopia. The implications from Davies J’s judgment are that evidence obtained from independent sources such as the Ethiopian Human Rights Council and Amnesty International was at worst neutral and certainly did not go so far as to refute the claims made. Davies J sets out in some detail the statements made by both of these organisations.[6] For his Honour, the major concern was that the tribunal had asked itself the wrong questions, focusing too strongly on the factual question of whether the events alleged by the applicant had occurred rather than on the issue of why the applicant feared persecution. Davies J said:[7]
Neither in the tribunal’s questioning of Mr Eshetu during the hearing nor in the tribunal’s lengthy reasons for decision did the tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the university, whether he had suffered injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why.
His Honour held that the RRT committed an error of law by focusing too narrowly on establishing through objective evidence a certain series of facts. Davies J clearly disputed the tribunal’s findings on the facts in dispute. Just as importantly, he found that the tribunal had simply failed to make findings of fact on issues of critical importance to Mr Eshetu’s claim that he is a refugee. Burchett J agreed with Davies J but added that the tribunal also committed an error of law in using a “remoteness” test in determining refugee status. His Honour emphasised that the sole basis for determining refugee status is the UN definition of refugee that requires an assessment of whether a claimant has a well-founded fear of persecution for a Convention reason. For both majority judges, however, the critical error committed by the RRT was in the narrow focus of its fact-finding on the particular incidents alleged by Mr Eshetu.[8]
In dissent, Whitlam J set out at great length the facts of the case and the history of the transactions leading up to and including the RRT’s decision. His Honour went in to defend the tribunal, reiterating the call to judicial deference made by the High Court in the two cases of Minister for Immigration and Ethnic Affairs v Wu Shan Liang[9] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong.[10] His Honour warned against placing the written reasons of a tribunal under too great scrutiny and stressed that findings of fact and credibility are the preserve of the tribunal.
The difficulty facing Mr Eshetu in the High Court is that, irrespective of the court’s ruling on the construction of the Act, it is always open to it to find that the real complaint is one that goes to the facts and merits of the RRT’s ruling. It will be our contention that the trial judge and the majority judges in the Full Federal Court offer compelling reasons for concluding that this case is one in which the RRT committed errors of law. Although he dissented in the result, even Whitlam J acknowledged the force of Davies J criticism of the methodology adopted by the tribunal.[11] We will argue also that this is a case where curial intervention is warranted. As we explore in the final section of this note, the political pressures on the courts to defer to tribunal rulings have never been stronger. However, there are the equally forceful pressures being placed on the RRT to take a hard line in refugee cases. In an environment where members often lack either legal training or a rigorous understanding of the laws of evidence or procedural fairness, it is our view that it is critical that the courts take a vigilant role in the review of what are, by definition, life-and-death decisions.
The conundrum for the High Court is this. While changes to the migration legislation have cut into the power of the courts, the Act does not yet contain a full privative clause. On the contrary, the legislation contemplates curial involvement through a scheme that actually incorporates review by the courts in the Migration Act itself. This arrangement sets up an interesting tension that is reflected in the establishment of two distinct camps: one favouring judicial intervention; the other preferring a more deferential approach.
Successive federal governments have made it very plain that the creation of the migration tribunals[12] was part of a package designed to both reduce the need for judicial review and confine the role played by the courts in the review of migration decisions. In the case of refugees, the Act was changed so as to render status determinations more subjective. The test is no longer a matter of judging whether a claimants meets the UN definition of refugee, but, rather whether the Minister is satisfied that a claimant meets this definition.[13] In its review of refugee determinations, the RRT stands in the shoes of the Minister. The procedural autonomy of the tribunal has already been the subject of comment.
The amending legislation that brought the RRT into existence also introduced Part 8 of the Act.[14] Since 1 September 1994, the Federal Court has had no jurisdiction in respect of migration decisions under any law other than the Act, including the Administrative Decisions (Judicial Review) Act 1977 (Cth).[15] Part 8 establishes a stringent regime dictating the type of decisions which may be reviewed, at what stage judicial review may be sought and the grounds on which that review may take place. Section 476(2) provides that decisions may not be reviewed on grounds of breach of the rules of natural justice or that the decision constituted an exercise of a power so unreasonable that no reasonable person could have so exercised the power. Review is not permitted on grounds that the decisionmaker took into account irrelevant considerations, fails to take into account a relevant consideration or exercised a power in bad faith.[16] The permissible grounds of review are listed in section 476(1). They include failure to follow procedures required to be observed, lack of jurisdiction to make the decision, that the decision was not authorised by the Act or that it constituted an improper exercise of power, error of law, actual bias or there was no evidence to justify making the decision.
The effect of Part 8 is to take the curial review of migration decisions out of the mainstream, narrowing the standing rules for applicants as well as the grounds on which decisions can be reviewed.[17] At the same time, the legislation actually preserves the right of the courts to intervene. Where fundamental errors of law are made, the Federal Court clearly has jurisdiction to quash a decision and remit a matter for re-determination in accordance with the law. This is so whether or not the errors appear “on the face of the record of the decision.”[18]
The critical issue raised by the Eshetu case is the extent of the Federal Court’s power in the review of migration decisions caught by the provisions of Part 8 of the Act. If the RRT did ask itself the wrong questions, or applied a false test for refugee status, it is our view that it is open to the Court to rule that the tribunal did commit a jurisdictional error and/or an error of law within the meaning of para 476(1)(e) of the Act.[19] The more difficult question is whether Part 8 allows for review where the legal error does not go to the interpretation of the law so much as to the manner in which the statutory power was exercised. In this context, it is necessary to examine what the Act has to say about the operation of the RRT and the manner in which it is to make its decisions.
The Act establishes three stages of decision-making for refugee determinations: primary decision by a departmental officer, review on the merits by the RRT and limited judicial review by the Federal Court. A detailed set of procedures govern the process of initial determination by the Department of Immigration and Multicultural Affairs (the Department) which dictate the means of communication to be employed, require certain information to be provided by and to the applicant and permit the applicant an opportunity to respond.[20] This detail is not replicated in the provisions governing review by the RRT. Apart from requiring the RRT to provide an oral hearing save in those cases where a positive determination can be made on the papers,[21] the Act does not contain a code for hearings conducted by the tribunal. The chief reference to the manner in which reviews are to be conducted is in section 420 of the Act. This section requires the RRT to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.” The provision states that the tribunal “is not bound by technicalities, legal forms or rules of evidence,” and must act according to “substantial justice and the merits of the case.”[22]
The structure of the Act presents two fundamental questions bearing on the scope of review. First, does section 420 prescribe procedures with which the RRT is required to conform? In particular, is the RRT required as a matter of procedure to provide a mechanism of review which is fair and just and directed to the substantial justice and merits of the case? The second question goes to the effect of the exclusion of particular grounds of review in sub-section 476(2). Does the reference in the Act to “substantial justice” replace the common law grounds of natural justice and unreasonableness with statutory grounds of review which are similar in content? Alternatively, is review precluded merely because the content of “substantive justice” is analogous to the excluded common law grounds of judicial review?
The first issue for the High Court concerns the interpretation of section 420 of the Act. One line of authority has it that section 420 does not establish procedures that are required to be followed. It is best represented by the judgment of Lindgren J at first instance in Sun Zhan Qui.[23] Lindgren J ruled that:
section 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of procedure, which ... signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings.
He pointed out that the objectives of providing a mechanism of review which is “fair, just, economical and quick” may be mutually inconsistent. A finding that RRT did not satisfy one or more of the epithets would not necessarily mean that it had not been pursuing the specified objective. Ultimately, the provision lays down objectives rather than directives and has no substantive content.
The contrasting view is that of the majority in Eshetu. Davies and Burchett JJ ruled that a plain reading of section 420 compels the conclusion that the RRT must ensure that review is “fair, just, economical, informal and quick” and that it is directed to the “substantial justice and merits of the case.”[24] In determining the content of this obligation, they follow a line of authority which posits that “substantial justice”, as a bare minimum requires compliance with common law principles of natural justice or procedural fairness.[25] Burchett J held that the Act substitutes for a broad conception of natural justice a series of specific provisions by one or other of which each rule of natural justice is given effect.[26] Davies J indicates that the requirement of substantial justice has a substantive as well as a procedural component.[27]
The Federal Court bench is divided on which of these two approaches is to be preferred, with an almost equal number of decisions on each side of the argument.[28]
In subsequent cases, Davies J has stressed that Eshetu does not create a new ground of review.[29] He has speculated that the substantive element of section 420 involves a direction that the tribunal focus on the crux of a case, avoiding technicalities and making due allowance for matters such as problems of proof which claimants encounter.[30] In other cases, the Federal Court has held that the circumstances in which the common law ground of unreasonableness may have been made out will also be encompassed by section 420. In Sun Zhan Qui, Wilcox J commented that “if the tribunal’s treatment of the issues is so unreasonable that it must be said the decision could not have been made by a reasonable person, there has not been ‘substantial justice’.”[31] His Honour also indicated that a failure to take into account relevant considerations may constitute a failure to accord substantial justice.[32]
In Amarjit Singh, Mansfield J found that the operation of section 420 extends to instances of apprehended bias despite the fact that the Act permits review only in case of actual bias.[33] Finkelstein J equated the duty to accord substantial justice with the obligation of 'acting judicially'.[34] This obligation may be breached in case of actual or apprehended bias, failure to provide an appropriate opportunity to be heard, failure to have regard to material considerations, consideration of immaterial or irrelevant matters or making findings unsupported by probative evidence.[35] These and other decisions following Eshetu indicate that the Federal Court is willing to engage in extensive review of the procedures employed by the tribunal and the substantive bases of its decisions in spite of Part 8. The Minister may have good reason to conclude that “the common law grounds of review Part 8 sought to exclude as grounds of review of migration decisions are being given new life, but in the guise of allowable grounds of review.”[36] In the absence of statutory provisions giving alternative content and meaning to section 420 of the Act, it is our view that the approach taken by the Federal Court is both justified and proper.
If section 420 does require the RRT to provide a particular standard of review, this requirement will be of little assistance to refugee claimants if its breach is not reviewable by the courts. The importance of this question is demonstrated by the judgement of Hill J at first instance in Eshetu.[37] Hill J concluded that section 420 did establish procedures which the RRT was required to observe. However, he concluded that the permissible grounds of review must be read subject to the exclusion of the particular grounds of judicial review in sub-s 476(2). He stated that “if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of section 420.”[38] The same applies in case of review on grounds of unreasonableness. After examining the decision of the RRT, Hill J considered that “the tribunal’s conclusion totally lacks logic. The tribunal’s decision as reached was so unreasonable that no reasonable tribunal could reach it. But sadly that is not a ground of review.”[39]
In contrast, the majority of the Full Court in Eshetu found that the removal of the broad grounds of review was not complete. Although the common law grounds of natural justice, relevancy and reasonableness are ostensibly withdrawn by section 476(2), the Court held that the Act substitutes a series of specific provisions which may allow review in similar, and often identical, circumstances. Burchett J held that the Act “confer[s] enforceable statutory rights equivalent to those provided at common law by the principle of natural justice, and section 476(2)(a) does not take those rights away.”[40] What follows is this. If the RRT is bound to provide a mechanism of review which is fair, just and directed to the substantial justice and the merits of the case, review will be available in situations comparable to common law natural justice, relevancy and unreasonableness. This interpretation of the Act is defended by Wilcox J in Sun Zhan Qui in the following terms:[41]
The scheme of the legislation is to require the court, in considering an application for judicial review ... , to determine whether the applicant has made out any of the grounds specified in subs (1) of section 476; if so, it is not to the point that the circumstances were such that, absent subs (2), the decision would have been reviewable on the ground that it breached common law principles concerning natural justice or was manifestly unreasonable.
The Act does not exclude the substance of the common law grounds of review if similar standards must be observed under procedures required by the Act, including the directive that the RRT act in accordance with substantial justice and the merits of the case.
In construing Part 8 of the Act, the High Court must decide how to deal with ambiguous provisions which seek to restrict curial review of administrative action. There can be little doubt that Parliament intended to limit the scope of judicial review by incorporating Part 8 into the Act.[42] The current Minister has defended the restrictive measures on the ground that “it was envisaged that with increased merits review, a more certain procedural framework and reduced grounds of judicial review, there would be less need for applicants to seek judicial review.”[43] Nevertheless, on the face of the Act the extent to which Part 8 of the Act does oust review is far from clear.
In this situation, the Court has two choices in interpreting the legislative provisions. It may attempt to discern the objectives of Parliament in enacting the legislation and submit to the perceived purpose, or it may resort to presumptions of statutory interpretation which will be displaced only in cases of clear legislative provisions of contrary effect. The former approach is the one favoured by judges in the “no review” camp, such as Lindgren J in Sun Zhan Qui[44] and Whitlam J in Eshetu. In effect, these judges suggest that the entire Act should be read down in light of the restriction of review in Part 8. This is a view that was not well received by the former Chief Justice Brennan.[45]
In our view, the approach taken by the majority in Eshetu is to be preferred. Burchett J[46] cites with approval the principle expressed by Deane J in Baker v Campbell[47] who said that “general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary implication.” Burchett J suggests further that general statutory provisions should be interpreted so far as possible to accord with Australia’s international treaty obligations[48] and that privative clauses should not be read as depriving citizens of access to the courts without clear legislative intent.[49]
These interpretive presumptions express the reluctance of the courts to permit the abrogation of rights recognised by the legal system or to submit to restrictions upon their jurisdiction and function without clear legislative stipulation. As Pearce and Geddes point out, such assumptions are based on the expectation that certain tenets of our legal system will be followed by the legislation.[50]
... the various assumptions [of statutory interpretation] can be viewed as the courts’ efforts to provide, in effect, a common law bill of rights – a protection for the civil liberties of the individual against invasion by the state.
The short answer to critics of this approach is that it is always open to the federal Parliament to amend the Act so as to clarify the content of the phrase “substantial justice and the merits of (a) case” by spelling out the procedures to be followed by the RRT. In fact the government has moved already to do this. The inclusion of a code of procedures for the migration tribunals is an important aspect of Migration Legislation Amendment Bill No 4 of 1997 (Cth). In view of its relatively uncontroversial standing, the general expectation is that this Bill will be passed into law, Parliamentary schedules permitting.
The second issue raised in Eshetu concerns whether the Federal Court has exceeded the proper extent of judicial review by examining the merits of the RRT’s decision. The courts have always recognised that judicial review should not amount to the exercise by the court of an administrative discretion legally reposed in a decision-maker.[52] The role of the court is to assess whether a decision is legal rather than whether it constitutes the right or preferable outcome. In Attorney- General (NSW) v Quin, Brennan J stated: [53]
The duty and jurisdiction of the court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The impermissibility of examining the merits of a decision has a number of facets. Most importantly, for the current purposes, a court should not conduct a comprehensive reconsideration of findings of fact made by a primary decisionmaker. As Brennan J notes, “there is no error of law simply in making a wrong finding of fact.”[54]
In seeking special leave to appeal to the High Court in Eshetu,[55] Counsel for the Minister argued that the Federal Court had breached this principle by scrutinising too closely the fact-finding of the RRT.[56] Counsel referred to the ruling of the High Court in Wu[57] and Guo,[58] where the Federal Court was admonished for exceeding the proper limits of judicial scrutiny. In Guo, Kirby J concluded that “so long as the tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that court disagreed with the tribunal’s factual conclusions.”[59] Granting special leave, Gummow J referred to Wu and observed that “maybe one has to say it all again”.[60]
Did the Full Federal Court engage in reviewing the merits of the RRT’s decision? The major factual finding made by the RRT was that it “[did] not accept that Mr Eshetu and another 25 students ... were detained and tortured for three days for planning a demonstration in December 1991.” As a result, the RRT “[did] not accept that [Mr Eshetu] faces more than a remote chance of detention or other serious harm amounting to persecution.”[61] Davies J’s decision to set aside the RRT’s decision was based primarily on the existence of certain evidence, particularly the fact that Mr Eshetu “gave .... a detailed individual story which ... was not inconsistent with known facts at the relevant time.”[62] This implies an error of law on the basis of a perceived disjuncture between the evidence presented and the findings of the tribunal. In Sun Zhan Qui, Burchett J suggested more directly that:
[A] decision may sometimes, by virtue of extreme disparity between it and the material on which it is based ... give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision-maker.63
Davies J also noted there was nothing “inherently improbable” about Mr Eshetu’s tory and his testimony was “the evidence of someone who was speaking from recollection and it included details which a person fabricating a story would have been unlikely to include.”[64]
As is so often the case in matters of this kind, it is possible to characterise this aspect of the Federal Court’s ruling in either of two ways. Some will see the decision as one that is confined to the merits or factual findings of the RRT’s decision. Others will see in the majority judgments the identification of a reviewable legal error in the tribunal’s fixation on one factual matrix to the exclusion of other matters that were critical to the assessment of Mr Eshetu’s claim to be a refugee. The cynic will agree with Lord Denning MR’s remark that the choice of approach will be determined by whether or not a person is moved to advocate the quashing of the decision made.[65]
There are good reasons why the courts should resist engaging in merits review. Reassessing the substance of administrative decisions and factual determinations made by administrators would involve the assumption of a simply unbearable workload.[66] Legitimate questions exist concerning the aptitude and competence of courts to re-examine factual investigations undertaken by primary decisionmakers or merits review tribunals. In Wu, Kirby J points out that the decisionmaker will have advantages in evaluating evidence such as directly hearing the evidence and submissions as well as experience in the application of the relevant administrative rules.[67] The adversarial process of judicial review may be inappropriate for the task of reassessing many administrative decisions. In Quin, Brennan J recognised that “... the courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered.”[68] These arguments are strong where, as in the migration field, specialist tribunals exist allowing applicants to seek review on the merits.[69]
The problem for the courts is in finding (and respecting) the elusive line between factual errors which go to the merit of a decision and errors of law. Judicial review necessarily involves some consideration of the merits and substance of decisions. Most obviously, review on grounds of Wednesbury[70] unreasonableness requires consideration of the substantive basis of a decision. Some argue that “irrationality”, or “unreasonableness”, has always authorised fullblown substantive review of the merits of the substantive decision.[71] Consideration of the substance of decisions is evident in other grounds of review. The jurisdictional fact doctrine, principles of relevancy and the “no evidence” rule all require consideration of the basis of decisions.[72] The scope of the principles of review is demonstrated by recent migration cases. The courts have applied principles such as the constructive failure to exercise jurisdiction; failure to consider the cumulative effect of factors that tend to establish the applicant’s case; and failure to genuinely consider the merits of the applicant’s case or the misconception of the inferences available from particular facts.[73] Simply restating the merits/legality distinction fails to confront the extent to which judicial review does permit consideration of the substance of administrative decisions. It does not even attempt to delineate those decisions which are suitable for judicial consideration from those which are not. The approach of the High Court in Wu and Guo represents little more than an appeal for judicial selfrestraint. This does little to clarify the limits of judicial intervention. As McLachlan argues:
Self-restraint as a mechanism for delimiting the scope of review is wholly objectionable. Either review lies or it does not. Resort to some intuitive judgment that review is inappropriate does nothing to delimit or explain the boundaries of review.74
Where judicial review permits the virtual usurpation of the position of the decision-maker, pleading for the courts not to intervene in the merits will prove ineffective and is inherently selective. Faced with ‘hard’ cases and tragic factual situations, it is difficult to envisage the Federal Court consistently restraining itself from intervening where such intervention can easily be justified by established principle. The task facing the High Court in Eshetu is not merely to “say it all again”, but to work towards establishing principles which identify with greater certainty and precision where the boundaries of substantive review lie.[75]
The propriety of judicial intervention should not be determined solely by the characterisation of the RRT’s function as one involving factual or legal determinations. Refugee determinations inevitably involve complex admixtures of fact and of law. What is required is the development of an approach that manifests a more detailed understanding of the strengths and weakness of administrative as opposed to judicial decision-making in order to establish appropriate areas of competence.[76]
It is our view that the present form of the migration legislation does not demand complete deference by the courts to rulings by the RRT. There are powerful reasons why continued judicial oversight should be preserved. Refugee determinations involve, by their very nature, the possibility of detriment to the fundamental rights of applicants, including threats to life and liberty.[77] The stakes for refugee claimants are high. Although members of the RRT develop expertise because of the specialised nature of the cases they hear, there are also benefits in review by an independent judiciary whose expertise is more generalised. As Legomsky notes,[78] the specialised nature of tribunals can lead to the development of institutional mind-sets in tribunal members. This is a natural response where individuals are presented with a series of cases that bear many similarities. Constant references to torture and trauma can lead to the denigration of experiences that may shock an outsider less inured to stories of pain and hardship. In this situation the generalist expertise and the detachment of a court can be of particular importance. Legomsky writes:
It would be unrealistic to expect a person to adjudicate a steady stream of (asylum) cases without at least unconsciously devaluing the allegations of hardship. A court of general jurisdiction, faced with a few asylum cases, has less opportunity to develop either that kind of institutional callousness or undue sympathy for the agency officials whose decisions it reviews. Thus, a generalist court can approach asylum cases with a broader and less tainted perspective.79
Legomsky points out that courts can play an important role in encouraging independence and integrity by forcing care in the adjudicative process. Curial review rewards those who make a bona fide attempt to make findings on the facts and the law as presented and provides sanctions for those who choose to act on arbitrary or capricious considerations. The need to foster the independence of RRT members is of critical importance given the various factors acting against the independence of the tribunal. Although the RRT is nominally an independent body, the Minister retains significant control over the method of appointment, the duration of appointment and remuneration of members[80] as well as the facilities and funding of the review body. While he recognises that the RRT should be impartial and free from bias, the Minister has argued that “it is the duty of all members of the tribunals to fully know and understand the parameters of migration policy.”[81]
Of greatest concern is the tendency for the present Minister to actively criticise decisions of the RRT with which he disagrees. In December 1996, the Minister took the unusual step of initiating appeals against two decisions by the RRT in which refugee status was granted to victims of domestic violence. As well as opining that the Convention definition of refugee was never intended to cover such situations, the Minister is reported to have warned tribunal members that their reappointment prospects would be threatened by such attempts to re-write the Convention.[82] Whether or not such threats can be proved to have influenced RRT members, it is alarming to note that “set aside” rates for refugee appeals in the month preceding the May 1997 re-appointment process plummeted to 3.7 per cent nationally (2.1 per cent in Sydney).[83] In 1996–97 the set aside rate in the RRT was 11.6 per cent nationally. The sudden fall in decisions set aside could be explained by any number of factors: it is well to bear in mind that each case, by definition, must be decided on its facts and merits.[84] For present purposes it suffices to note the coincidence between the figures and the external events impacting on tribunal members. They act as a timely reminder of the need for judicial oversight of tribunal rulings so as to ensure the accountability and true independence of members.
If Australia is sincere about wishing to provide a fair mechanism of review and fulfil its international obligations, the courts must not shrink from their responsibility to thoroughly examine the determinations of immigration officials and the RRT within the scope permitted by principle. In the case of asylum seekers, decisions on status can quite literally be matters of life and death. These realities may be inadequate to move the sensibilities of a society engrossed with its own introverted sense of alienation and injustice. For the unpopular and the vulnerable refugee claimant, the safeguards provided by an independent judiciary have never been more important.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/19.html