Lindgren, The Hon Justice Kevin --- "Commentary:" [2001] FedLawRw 19; (2001) 29(3) Federal Law Review 391

The table below based on Federal Court records is also of applications to the Federal Court for review of both IRT/MRT and RRT decisions, and breaks up filings as between District Registries and as between first instance and appellate proceedings. Even treating the above DIMA 'new matters' as limited to new first instance matters, the Court 'totals' below are substantially higher than the DIMA totals—at the time of writing, a satisfactory explanation for the discrepancy is not known.

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YEAR	NSW	VIC	QLD	WA	SA	TAS	ACT	NT	TOTAL
1993–94
First instance	125	104	9	27	11	0	41	3	320
Full courts	8	3	0	8	1	0	1	0	21
Total	133	107	9	35	12	0	42	3	341
1994–95
First instance	125	136	5	25	9	0	5	5	310
Full courts	4	1	0	4	1	0	0	3	13
Total	129	137	5	29	10	0	5	8	323
1995–96
First instance	221	225	8	30	20	0	3	0	507
Full courts	7	9	0	5	4	0	0	0	25
Total	228	234	8	35	24	0	3	0	532
1996–97
First instance	336	270	15	25	22	0	3	2	673
Full courts	17	9	0	4	6	0	0	0	36
Total	353	279	15	29	28	0	3	2	709
1997–98
First instance	471	174	12	5	7	0	0	1	670
Full courts	35	20	2	3	1	0	0	0	61
Total	506	194	14	8	8	0	0	1	731
1998–99
First instance	662	166	25	28	23	1	6	4	915
Full courts	67	17	1	5	3	0	1	1	95
Total	729	183	26	33	26	1	7	5	1010
1999–2000
First instance	575	228	8	100	28	0	3	0	942
Full courts	115	13	5	7	3	0	2	1	146
Total	690	241	13	107	31	0	5	1	1088

The following Court figures, which relate to the 317 first instance filings in the New South Wales Registry alone, indicate the immediate sources of those proceedings:

The Court's tables above show that throughout the period of the new régime, that is, in each of the six years 1994/95 to date, the total number of both first instance and appellate proceedings commenced has increased; that most of the applications have been filed in New South Wales and Victoria; that in the first three years the difference between those two States was not great, but from 1996/7 down to the present, the number filed in New South Wales has been substantially greater than the number filed in Victoria; and that in Western Australia, the third busiest Registry in the present respect, there has been a substantial increase in the number of filings in the latest year, 1999/2000 (from 28 in 1998/99 up to 100 in 1999/2000). The figures for the period from 1 July 2000 to 16 July 2001 suggest a disproportionately substantial increase in the number of filings in the Victorian Registry.

A recent development of particular concern is the increasing resort to the High Court by disappointed refugee claimants. As is well known, s 75 of the Constitution provides:

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

As John Basten observes in his paper, the jurisdiction of the High Court is not restricted in the way in which that of the Federal Court under Part 8 of the Migration Act is. Section 476 of that Act provides that application may be made for review by the Federal Court of 'a judicially-reviewable decision' (defined in s 475 to include a decision of the RRT) on certain stated grounds only. These are more limited than the grounds permitted by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) from which, however, the Part 8 grounds are derived. The major differences are as follows:

but under the Migration Act, those grounds are not available as grounds on which an application for review of a judicially-reviewable decision may be made (contrast paras 5(1)(e) and 5(2)(a), (b), (d) and (g) of the AD(JR) Act with paras 476(2)(b) and 476(3)(d), (e) and (f) of the Migration Act—the Wednesbury unreasonableness ground is treated as a form of “improper exercise of power” under the AD(JR) Act but is excluded as a ground of review under the Migration Act independently of that ground).

The validity of Part 8’s conferral of so limited a jurisdiction on the Federal Court was challenged in Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, but was accepted by a four to three majority. In the majority, Gleeson CJ and McHugh J observed (at 534) that the scheme,

must inevitably force or at all events invite applicants for refugee status to invoke the constitutionally entrenched s 75(v) jurisdiction of this Court. The effect on the business of this Court is certain to be serious.

The increase in the number of applications to the High Court for relief under s 75(v) of the Constitution was noted by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at paras 7-15. His Honour noted that as at the date of the decision in that case, 21 January 2000, of the 102 applications for constitutional writs then pending in the High Court, 66 arose under the Migration Act.

[a]pplications either in the High Court’s original jurisdiction or for special leave to appeal almost doubled in 1999-2000 with 128 applications compared to 65 applications in 1998-99.

Responses of government

My remaining concern is to note two governmental responses to the increasing resort to the courts by refugee claimants and certain aspects of the Federal Court’s manner of handling the large volume of such cases.

One legislative solution to the burden imposed on the High Court would be to make the Federal Court’s jurisdiction as wide as that of the High Court. But the alternative course which I will discuss here is that preferred by the Government: the use of privative clauses to render tribunal decisions immune from curial interference. The effectiveness of that solution depends on the line of authority associated with R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168; and Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602. The device is reflected in the Migration Legislation Amendment (Judicial Review) Bill 1998. That Bill was introduced into the Parliament on 3 September 1997 as the Migration Legislation Amendment Bill (No 5) 1997. The Bill was passed by the House of Representatives on 23 September 1997 then introduced into the Senate on 29 September 1997. On 20 October 1997, by majority, the Senate Legal and Constitutional Legislation Committee recommended that the Bill be passed without amendment. The Bill was awaiting debate in the Senate when Parliament was prorogued in August 1998.^[3]

The Bill would repeal Part 8 of the Migration Act and replace it with a new Part 8. The new Part 8 would make decisions refusing to give a visa final and conclusive. Division 1 of the proposed new Part 8 would comprise one section, s 474, dealing with privative clause decisions. Sub-section 474(2) would provide that in s 474,

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). [emphasis added]

Sub-section 474(3) would provide that the reference in s 474 to a decision includes a reference to, inter alia, refusing to give a visa. The kinds of decision, for the exclusion of which s 474(4) and s 474(5) provide, do not include any of the three classes of 'judicially-reviewable decisions' presently identified in s 475(1), namely, decisions of the IRT/MRT, decisions of the RRT and other decisions made under the Migration Act or the regulations relating to visas. Sub-section 474(1) would be as follows:

Paragraph 15 of the Explanatory Memorandum which accompanied the Bill stated as follows:

A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.

The other legislative measure intended to restrict judicial review on the application of refugee claimants is expressed in the Migration Legislation Amendment Bill (No 2) 2000.^[4] This Bill would prohibit representative or class action proceedings raising issues connected with visas (see item 6 in Schedule 1 to the Bill). Examples of representative proceedings challenging migration decisions can be found in Zhang v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 489; (1993) 45 FCR 384, Chen v Minister for Immigration & Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591, and De Silva v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 502. Paragraphs 3 and 6 of the Explanatory Memorandum which accompanied the Bill were as follows:

3. Since October 1997, 14 class actions have been taken out allowing significant numbers of people to obtain bridging visas to remain in Australia until the courts determined the matter. All 10 of those class actions that have been decided – involving about 4,000 participants – have been dismissed by the courts, raising concerns that class actions are being used to encourage large numbers of people to litigate to prolong their stay in Australia.

6. The financial impact of the amendments contained in Schedule 1 to the Bill will depend on what effect the amendments have on applications for judicial review. For instance, if the bar on class, representative or otherwise grouped actions does not increase the number of individual applications, broad costs to the Commonwealth, including costs arising from members of these actions prolonging their stay in Australia, may be reduced. However, if the number of individual applicants increases, there may be an increase in litigation costs in addition to costs associated with each individual’s prolonged stay in Australia.

What is the fate of applications to the Federal Court and the High Court for review of IRT/MRT and RRT decisions? The DIMA Fact Sheet 86 referred to earlier responds as follows to this question:

In addition, the Minister withdrew from 111 matters prior to hearing. The table below sets out Federal Court resolutions since the 1993-4 financial year.

Year	Applicant Withdrawal	Minister Withdrawal	Applicant Win	Minister Win	Total
1993-94	66	92	20	84	262
1994-95	126	108	18	67	319
1995-96	173	133	15	81	402
1996-97	336	116	17	202	671
1997-98	278	128	49	283	738
1998-99	255	199	74	387	915
1999-00	261	111	77	472	921

The following two tables composed from data in the Annual Reports of the RRT in relation to judicial review of RRT (not IRT/MRT) decisions are also of interest:

Applications by refugee claimants to the Federal Court and High Court challenging RRT decisions: 1995/96–1999/2000

	1995–96	1996–97	1997–98	1998–99	1999–2000
Applications filed in the Courts.	282	419	476	651	657
Total decisions made by the RRT.^[5]	3,384	4,245	6,508	6,524	6,194
Applications for review filed in the Courts as a percentage of the total decisions made by the RRT.	8.3	9.9	7.3	10.0	10.6

Source: RRT Annual Reports: 1995/96 Report, 12; 1996/97 Report, 12; 1997/98 Report, 14, 15; 1998/99 Report, 6,7; 1999/2000 Report, 18-19.

Final status of RRT decisions,^[6] following decision by the Federal Court and the High Court on such applications: 1996/97-1999/2000

Final Status of Decision	1996–97	1997–98	1998–99	1999–2000
RRT decision upheld by judgment	97 (25%)	166 (36%)	281 (45%)	303 (52%)
RRT decision set aside by judgment^[7]	43 (11%)	20 (4%)	54 (9%)	43 (7%)
RRT decision remitted by consent^[8]	43 (11%)	54 (12%)	97 (16%)	51 (10%)
Application dismissed^[9] or withdrawn^[10]	249 (64%)	224 (48%)	188 (30%)	182 (31%)

Source: RRT Annual Reports: Report 1996/97, at 14; Report 1997/98, at 15; Report 1998/99, at 7; Report 1999/2000, at 18.

In its Annual Report 1999-2000, the RRT stated the various outcomes of applications for judicial review of RRT decisions as percentages covering the period 1 July 1993 to 30 June 2000 as follows:

Tribunal decisions where judicial review was not sought	91.22%
Cases active in courts	1.52%
Challenge to Tribunal decision withdrawn	2.69%
Tribunal decisions upheld by judgment of court	3.15%
Tribunal decisions set aside by consent of parties	0.99%
Tribunal decisions set aside by judgment of court	0.43%

The RRT figures suggest that over the years 1996–97 to 1999–2000, court proceedings were brought in respect of some 8 per cent to 11 per cent of RRT decisions, and that of such proceedings some 4 per cent to 11 per cent resulted in a final setting aside of the RRT decision by judgment. No doubt, Government would respond that its concern is over the delay and cost to the taxpayer involved in the finalisation of the applications (and any appeals) through the Federal Court and the High Court of the proceedings at all, irrespective of the result.

Responses of the Federal Court

The increasing number of applications to the Federal Court for review of refugee claimant decisions has given rise to special problems which have called for special responses. It should be appreciated, however, that although numerous, the applications usually involve only a short hearing. Accordingly, although the number of applications undoubtedly entails a heavy burden, that burden is not as heavy as the mere number of applications might suggest.

Efficient ways of hearing and determining the applications have been adopted. There is a practice in the New South Wales and Victorian Registies, which has also been adopted in some other Registries, according to which the Minister’s solicitors (since 16 June 2000, the Australian Government Solicitor, Blake Dawson Waldron, Clayton Utz and Sparke Helmore) prepare a book of 'relevant documents' which is available on or before the first directions hearing. This usually enables directions to be made on that occasion for the filing of submissions and the fixing of an early final hearing date, often for an estimated half-day hearing. If other hearing commitments of the Docket Judge pose a problem for an early fixture during normal court hours, he or she may hear the proceeding outside those hours, if necessary over two days. If an unrepresented refugee claimant cannot understand or speak English, the Court arranges, at its cost, for an interpreter to be present at the first directions hearing and subsequent hearings.

Many of the applicants for review of RRT decisions are not legally represented, many are not fluent in English, and in many cases the form of application for review is ill expressed. The Court has long since been able to refer litigants in person to the pro bono schemes operated by the professional bodies. However, two recent developments are of a different order. The first is found in Order 80 of the Federal Court Rules headed 'Court Appointed Referral for Legal Assistance', which took effect on 7 December 1998. Pursuant to Order 80 the Registrar may maintain in each District Registry a list of legal practitioners who have agreed to participate in the special pro bono scheme for which the Order provides (Pro Bono Panel), and to have their names placed on the Pro Bono Panel accordingly. The key provision of Order 80 is found in r 4 which provides that the Court may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance. The Court may take into account the litigant’s means and capacity to obtain legal assistance outside the scheme, the nature and complexity of the proceeding, and any other matter considered appropriate. A referral is effected by the issue of a Referral Certificate signed by the Judge's Associate in relation to the litigant. If a Referral Certificate is issued, the Registrar must attempt to arrange for legal assistance of the kind identified in the Certificate to be provided by a legal practitioner on the Pro Bono Panel. Rule 5 provides that a referral may be made for advice in relation to the proceeding, representation, drafting or settling of documents to be filed or used in the proceeding, or representation generally in the conduct of the proceeding or a part of it.

Rule 9 provides that a legal practitioner who provides legal assistance to a litigant under the scheme must not seek to recover professional fees or disbursements, but that if an order for costs is made in favour of the litigant, the legal practitioner is entitled to recover the amount of fees and disbursements another party is ordered to pay under the order. A referral under Order 80 cannot be made with retrospective effect, that is, after the professional legal assistance in question has been provided, even though the assistance was provided by the legal practitioner on a 'no win, no fee' basis: Schokker v Commissioner of Taxation [2000] FCA 1734 (French J).

Order 80 has been found useful where an arguable issue comes to the attention of the Court in a proceeding and the Court is of the view that it would be assisted in achieving a just result if the litigant had professional assistance in relation to the issue, in particular, by counsel’s researching and making submissions in relation to the issue.

The second development referred to earlier is a pilot legal advice scheme relating specifically to RRT review cases. This scheme, which operates in the New South Wales District Registry, is the product of a co-operative effort by DIMA, the New South Wales Bar Association, the Law Society of New South Wales and the Court. Again, there is a panel of volunteer barristers and solicitors. The Court invites each unrepresented applicant to receive, free of charge to the applicant, advice from a panel member. If the applicant wishes to receive the advice, the Court’s Registry contacts the next practitioner on the list in rotation and refers the applicant to that practitioner. The practitioner advises the applicant. A flat fee of $660 (including GST) is payable, regardless of whether or not the applicant attends the conference with the practitioner; a fee of $55 (including GST) is payable to the New South Wales Bar Association for each matter for administrative costs; and a fee of $165 (including GST) will be payable if a panel member is required to travel in order to meet an applicant in detention. DIMA provides the Bar Association with a lump sum to cover the estimated cost of the scheme and the Bar Association acquits all expenditure against this advance, following which DIMA reimburses the Bar Association for any additional costs where the actual costs have proved to be higher than those forecast. The Bar Association administers the scheme on behalf of both itself and the Law Society and accounts to the Law Society for work done by solicitors. At the end of each month, the Bar Association provides to DIMA a statement of whom it has paid and the name of the applicants. Of course, the Court does not know the nature of any advice provided to the litigant.

Initially, the scheme was introduced for a pilot period of three months commencing on 13 July 2000 and the Minister agreed to extend it for a further period of three months. The Minister has now agreed to an extension of a further period of six months, which means that it will continue to apply in respect of all new applications filed up to and including 13 July 2001.

Disappointingly, down to 13 December 2000, that is, after the first six months of operation, although 122 applicants were identified as eligible to participate, only 39 (32 per cent of the 122) elected to avail themselves of the opportunity to do so. The New South Wales District Registrar is monitoring the position with a view to ascertaining why such a low proportion of applicants, afforded the opportunity, elect to receive professional advice as to their prospects of success.

CONCLUSION

The large number of judicial proceedings commenced by refugee claimants for the purpose of overcoming adverse administrative decisions has posed novel problems for judicial review. No solution will command universal support because of differences between views, often strongly held, about how far Australia should go in order to honour its commitment as a party to the Convention Relating to the Status of Refugees.^[11]

^[5] Decisions made by the RRT excludes applications withdrawn by the applicant prior to a decision being made by the RRT.

^[6] The figures in the above table relate to the final status of the RRT decision. For example, if the Federal Court upholds the RRT decision, but the Full Court (or High Court) sets it aside, the decision will be recorded as 'set aside'. Where a decision is set aside by judgment or remitted by consent, the matter is sent back to the RRT for reconsideration. Where a decision is upheld by judgment, or an application is dismissed or withdrawn, the RRT decision is unchanged.

^[9] 'Application dismissed' refers to applications for review that are dismissed by a Judge prior to a hearing on the merits (this may occur, for example, where the proceeding is dismissed for non-appearance at a directions hearing). ' Application withdrawn' refers to applications withdrawn prior to hearing.

^[10] Ibid.

^[11] United Nations Convention Relating to the Status of Refugees 1951, opened for signatures 28 July 1951 (entered into force 22 April 1954)

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Source	Number	Per cent
High Court (remittals)	2	1%
IRT/MRT	58	18%
RRT	237	75%
MINISTER’S DECISION	10	3%
APPLICATION BY MINISTER	2	1%
ADMINISTRATIVE APPEALS TRIBUNAL	8	3%
TOTAL	317	100%