A Layperson’s guide to some aspects of Australian refugee law
A person who arrives in Australia without a visa and claims asylum must establish that they are a person to whom Australia owes protection obligations ie, that they are a refugee.
Shortly stated, a refugee is a person who does not wish to return to their country of origin owing to a well-founded fear of persecution on racial, religious or political grounds.
Refugee claims are governed by the Migration Act
Under Australian law, a person who arrives without a visa must be detained until they receive a visa or are removed from Australia.
IT IS NOT AN OFFENCE TO ARRIVE IN AUSTRALIA AND SEEK ASYLUM. SO-CALLED “ILLEGALS” HAVE NOT COMMITTED AN OFFENCE.
On arrival, the asylum seeker is interviewed by an officer of the Department of Immigration Multicultural and Indigenous Affairs (DIMIA) acting as the delegate of the Minister. If the delegate accepts the claim for asylum, a protection visa will be granted.
If the delegate rejects the claim, the asylum seeker has the right to appeal to the Refugee Review Tribunal (RRT). The appeal is a full rehearing: ie, the asylum seeker gives their evidence again, and the RRt decides whether to believe the evidence or not, and assesses whether the evidence discloses ‘a well-founded fear of persecution on racial, religious or political grounds’.
The RRT has several notable features. The RRT members do not have to be lawyers. The Migration Act does not prescribe any particular qualifications for membership of the Tribunal. They are appointed for a short term but can be re-appointed. If their decisions please the government, their chances of re-appointment appear to improve. No doubt most members of the RRT are good and conscientious people. But it is impossible to overstate the impact of the framework within which they operate. In an article in the Washington University Law Quarterly, Stephen Legomsky strongly criticized the pressure to which the RRT was subject.
RRT members sit alone, not as a panel: thus, the decision in a particular case is made by one tribunal member.
If the RRT rejects the claim, the asylum seeker has the right to challenge the decision by way of judicial review.
Judicial review is quite different from a normal appeal. In a normal appeal, the appeal court considers whether the decision under appeal was wrong.
On judicial review, the question for the court is whether the tribunal exceeded its jurisdiction or failed to exercise its jurisdiction. Thus, the question is not error, but jurisdictional error.
An administrative body (like the RRT) identifies a wrong issue, or asks itself a wrong question, or ignores relevant material, or relies on irrelevant material, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate the decision of the tribunal.
Challenges to RRT decisions may be made in either of two ways: by seeking judicial review pursuant to the provisions of the Migration Act, or by seeking a Constitutional Writ.
Whichever path is adopted, the case will initially be heard by a Federal Court Judge. Such cases can also be referred into the Federal Magistrates Court and be heard by a Federal Magistrate.
If the application for review fails, the asylum seeker has a right to appeal to a Full Court. The Full Court comprises three members of the Federal Court sitting together. If the initial case was heard by a Federal Magistrate, there is also an appeal to a Full Court, but in this case the Full Court will comprise a single judge of the Federal Court.
The High Court of Australia is the ultimate court of appeal in Australia. There is no appeal as of right to the High Court. A person seeking to appeal to the High Court from the Full Court must apply for special leave to appeal. It is not a sufficient ground for special leave that the decision below was wrong: there must be a question of general importance in the case.
Australia’s Constitution, though relatively old-fashioned, has two aspects which are important constraints in this area; constraints, that is, on the government’s attempts to restrict refugee appeals.
The first is section 75(v) of the Constitution which gives the Court power to ensure that the conduct of officers of the Commonwealth is according to law. It provides a form of judicial review of administrative action. Since the jurisdiction is conferred on the High Court by the Constitution, it cannot be taken away by the government of the day: constitutional change has always been difficult in Australia.
Separation of powers
The second is the separation of powers. The Australian Constitution entrenches the separation of powers. The three powers of governments – legislative, executive and judicial – are vested in the three different arms of government. The powers of one arm of government may not be exercised by another arm of government. Accordingly, the Parliament, established under Chapter I cannot exercise the powers of the executive government which is established under Chapter II. Courts established under Chapter III of the Constitution may not pass laws Punishment is central to the judicial power. Accordingly, only a Chapter III court can inflict punishment on a person.
When an appeal succeeds
When an appeal succeeds, it does not follow that the asylum seeker receives a protection visa. Instead, the effect of a successful appeal is to set aside the original RRT decision, whereupon the asylum seeker goes back to the RRT for a fresh hearing. It often happens that their second RRT hearing also results in refusal of a visa, in which case the whole judicial review process may start again.
This explains why some people spend years in detention before ultimately receiving a visa.
48B and 417 applications
When a person’s claim for asylum has failed they must, according to tha Act, be removed from Australia as soon as reasonably practicable.
They are not permitted to make a further application for a protection visa, although the Minister has a discretion to permit a further visa application to be lodged. That discretion is conferred by section 48B of the Migration Act, so these applications are referred to as 48B applications.
Another ministerial discretion is conferred by section 417. This is the discretion to substitute a more favourable decision for the decision of the RRT. As a matter of practice, the Minister does not consider a section 417 application if the asylum seeker has any litigation on foot. The 417 application is supported by a letter setting out all the circumstances which the asylum seeker relies on as justifying their claim for protection. The Minister is not obliged to exercise the discretion.
417 application: The Minister has a discretion to substitute a more favourable decision for the decision of the RRT. The discretion is conferred by section 417 of the Migration Act. Applications of this sort are available when all appeals have ended and the asylum seeker has been refused a protection visa.
48B application: When a person’s claim for asylum has failed they are not permitted to make a further application for a protection visa except with the permission of the Minister. The discretion to permit a further protection visa application is conferred by section 48B of the Migration Act, so these applications are referred to as 48B applications.
Bridging visa: A bridging visa is one which permits the holder into the community pending the grant (or refusal) of a protection visa or other substantive visa. They may be granted in cases of special need, such as illness which cannot be adequately treated in detention. A person on a bridging visa will not be permitted to work, and may be required to provide security.
Chapter III court: a court established under Chapter III of the Constitution. In Federal matters (including migration and refugee matters) Chapter III courts have the exclusive power to exercise the judicial power of the Commonwealth.
Constitutional writs: writs authorised by section 75(v) of the Constitution, by which the conduct of officers of the Commonwealth can be required to conform to law. The constitutional writs provide a constitutionally entrenched form of judicial review of administrative action.
Full Court: The Full Court comprises three members of the Federal Court sitting together. If the initial case was heard by a Federal Magistrate, there is also an appeal to a Full Court, but in this case the Full Court will comprise a single judge of the Federal Court.
Habeas corpus: an order of the court (literally ‘let us have the body’) by which the lawfulness of a person’s detention can be considered by a court.
Migration zone: The migration zone is simply a construct for the purpose of the Migration Act. The islands off shore, 3000 or so that have been excised, are all still part of Australia’s territory. But they do not form part of this notion the ‘migration zone’. The importance of that is that if an officer of the department finds a person, a non-citizen, in the migration zone, or seeking to enter the migration zone. Then the officer has an obligation under law to take that person into detention. That means that they are in detention in Australia, where they can make application for a protection visa. The point of excising the islands is that if a person reaches Australian territory they are not required to be taken into immigration detention, although they can be detained, and they are not entitled to make an application for a protection visa. With the other machinery introduced immediately post-Tampa, the person can then be taken, against their will, either to Manus Island or to Nauru, where they are held bythe International Organisation for Migration (IOM) on Australia’s behalf.
Privative clause: section 474 of the Migration Act which provides, in substance, that a decision of the RRT should not be challenged appealed or called in question in any circumstances in any court whatever. It was substantially disabled by the decision in the case of Plaintiff S157.
The High Court decided S157 in February 2003. The case was a challenge to the ‘privative clause’ introduced into the Migration Act in the wake of the Tampa case. The High Court said that section 75(v) of the Constitution prevented the RRT’s decisions being put wholly beyond challenge in the High Court. They said that if the RRT exceeded its jurisdiction, then the result was not a ‘decision’ at all, since it was something the RRT had no power to do. Accordingly, the privative clause did not operate to prevent a challenge to ‘decisions’ made beyond jurisdiction. The decision substantially disabled the privative clause.
‘Al Masri’ release; habeas corpus
Mr al Masri was a Palestinian from the Gaza Strip. He arrived in Australia in June 2001 and was placed in Woomera Detention Centre. He applied for a protection visa, claiming to be a refugee. He was refused a protection visa and asked to be returned to the Gaza Strip. Although Mr al Masri was able to produce a passport, officers of the Department of Immigration were unable to return him, because they could not get permission for his entry to the Gaza Strip. The Palestinians, it seems, thought he was an Israeli spy. Israel, for its part, did not want him. Five months passed and Mr al Masri remained locked up in Woomera. Mr al Masri applied to the court for an order releasing him from detention. Not surprisingly, the government resisted that application.
Because of the separation of powers, only a Chapter III court can inflict punishment on a person. Locking a person up is generally regarded as punishment. However, the High Court has acknowledged that there are circumstances where detention is necessary for the discharge of an executive function. In those limited circumstances detention imposed directly and without the intervention of a Chapter III court will be constitutionally valid. This holds good only as long as the detention goes no further than can reasonably be seen as necessary to the executive purpose which it supports.
The Migration Act requires that all unlawful non-citizens should be detained and should be held in detention until granted a visa or removed from the country. Mr al Masri’s case presented a conundrum: he had been refused a visa but he could not be removed. The question then was: should he remain in detention. For the sake of accuracy, it is worth quoting a portion of the Judgment in al Masri’s case:
“Theoretically at least, detention might continue for the rest of a person’s life and the Solicitor-General did not shrink from that possibility, whilst contending that in the real world such a thing would not happen.”
Put simply, the Solicitor-General, on behalf of the Minister for Immigration, had submitted to the court that, if it came to the point, Mr al Masri could be locked up for the rest of his life, although he is innocent of any offence.
The judge at first instance, and the Full Court, ordered Mr al Masri’s release. They said that the power to detain was exhausted once a visa had been refused and removal from Australia was not practicable in the foreseeable future.
The government sought special leave to appeal to the High Court, but in the meantime they had managed to find a country to send him to. Another case raising the same problem, al Khateb, was uplifted to the High Court to test the question. The case was argued in November 2003. It has not yet been decided.
Woomera escapees case
Woomera opened for business in December 1999. It was closed in September 2002. At its peak, it accommodated nearly three times as many people as it was designed for. Conditions in Woomera – physically and psychologically – were shocking. Until public pressure forced some measure of improvement, a woman having her period would have to queue for sanitary products. Children held in Woomera typically developed enuresis: a colleague of mine described the haunting image of a 12 year old Afghan girl wandering around aimlessly in the dust at Woomera, wearing a nappy. On enquiry, it emerged that the child was incontinent from the stress of detention. Desperate acts of self-harm were common. The use of solitary confinement was common.
On several notorious occasions, detainees escaped from Woomera, only to be recaptured shortly afterwards. They were charged with escaping from immigration detention. The defence to those charges goes like this: detention under the Migration Act is only valid so long as it does not constitute punishment. It will constitute punishment if it goes beyond what is reasonably necessary for the administrative purpose of processing a visa application and (if necessary) removal from the country. Conditions in Woomera go beyond anything that could be reasonably necessary for the purpose of visa processing and removal from the country. Accordingly, detention in such harsh conditions is not detention of the sort authorised by the Act, with the result that what they escaped from was not “immigration detention” but some other, unauthorised, condition.
In order to produce evidence of the conditions at Woomera, subpoenas were issued to the Department of Immigration and ACM – the private prison operators who run all of Australia’s immigration detention centres. The Department and ACM sought to have the subpoenas set aside.
Both the Department and ACM argued that the proposed defence could not succeed as a matter of law. This involved the proposition that no matter how harsh the conditions in Woomera might be, they were nevertheless lawful, and a court could not interfere. Because of the way in which the question arose, the government had to argue, and did argue, that even the harshest conditions of detention imaginable would nevertheless be lawful.
Children in detention
The conditions in detention are characterised both by the hopelessness of not knowing how long you will be there, and desperate uncertainty. This affects children especially. People held in detention centres get moved around arbitrarily, without warning. So that someone who is in Woomera today may be moved overnight to Curtin which is 2000 km away. Children wake up and find that yesterday’s playmate has gone; and when they ask their parents “where has my friend gone” their parents truly cannot answer. People simply disappear from their lives with no explanation, and other people appear in their lives, likewise with no explanation.
In February 2004, a case was argued in the High Court which put the proposition that the indefinite detention of children could never be regarded as ‘reasonably necessary’ to the administrative purposes of visa processing and removal. Hence, it was argued, the mandatory detention of children offends the separation of powers.
The case will be decided some time later in 2004.
The case of M38 – ‘non-refoulement’ cases
When a person has ultimately fails in their claim for a protection visa, the Migration Act requires that they be “removed from Australia”. In practice, that often means that they will be returned to their country of origin. At the present time there are approximately 200 Iranian asylum seekers in Australia’s detention centres who have been refused protection visas. A number of those people live in genuine terror of the prospect of being returned to Iran. The reason for their terror is not difficult to find. Many of them have embraced Christianity, and apostasy is a very serious offence in Iran; others of them belong to minor religious groups whose members are regularly subjected to terrible treatment in Iran. Recent reports on conditions in Iranian prisons make it clear that prisoners in Iran are treated with unrivalled cruelty: torture is standard, disappearances and murders are common.
An Iranian, whose claim for asylum had been rejected, lives in fear of return to these conditions. He applied to the court for orders preventing the Government from returning him to Iran. The case theory was simple: the power to remove a person from Australia does not go so far as allowing the Government to send him to a place where he faces torture or death. The Government sought to strike out the claim without a trial on the facts. When a party to litigation seeks to strike out the claim on that basis, they assume all the alleged facts to be true, and argue that those facts have no legal consequences. The Government argued on the basis of facts which were to be assumed. Their argument was this: it does not matter that he will be killed when he is returned; it does not matter that he will be tortured when he is returned, nevertheless the Government has the power and the obligation to return him to the place where that will happen.
The government’s view has prevailed. M38’s claim was dismissed by a single judge in May 2003; his appeal was dismissed by a Full Court in June 2003. In the High Court on 10 December 2003, special leave to appeal was refused.
Thus Australia will become a murderer at one remove, a torturer’s accomplice.
The Manus Island case
Aladdin Sislem was born a stateless Palestinian, to an Egyptian mother and a Palestinian father. He was born in Kuwait. Kuwait will not allow them to live there. Palestine will not allow him to live in Gaza or the West Bank because he was not born there. Egypt will not allow him to live there. Since 1990 his family have been seeking permission to live in any country in the world that they can get to, and no country will have them because they have no country of their own.
Tiring of this lengthy wait, Mr Sisalem made his way to Jakarta where for the next 12 months he waited while his application for asylum was considered and then rejected. He went to Papua New Guinea where he applied for asylum and was arrested, imprisoned and beaten up. He was found to be an illegal entrant into Papua New Guinea. He bribed a fisherman to give him a ride across toSaibai Island which is part of Australia and not yet excised from the migration zone.
Mr Sisalem made his way toSaibai Island where he was intercepted by the Australian Federal Police. He was unquestionably in Australian territory and in the migration zone. He told them his story and he told them he had come to Australia to seek asylum. They then took him off where DIMIA (the Department of Immigration and Multicultural and Immigration Affairs) interviewed him. He said why he’d come, and that he wanted to seek asylum. They then took him to Thursday Island, another part of unexcised Australia, where he was interviewed by the Manager of DIMIA on Thursday Island and said he wanted to seek asylum. He was then part of a telephone hook up with Canberra where a DIMIA official in Canberra took part in the conversation and he said he wanted to seek asylum in Australia. They then took him, against his will, to a small aircraft and said ‘Your claim to asylum will be processed elsewhere’.
They then took him to Manus Island where he was locked up in the detention centre, created under an agreement between Australia and Papua New Guinea, run by IOM, paid for by Australian taxpayers. He was told he has no asylum claim in Australia; that he had to deal with the Papua New Guinea authorities.
The government argues that Mr Sisalem has not got an asylum claim in Australia because the only way you can seek asylum is by filling out form 866, and although he said he wanted to seek asylum, he didn’t ask for form 866: only if he fills out form 866 does he have a valid application for a protection visa. Therefore the Minister does not have any obligation to consider his claim for a protection visa. And there’s no point giving him a form 866 now, because they can only be completed in Australia.
Section 256 of the Migration Act says that, on request, an officer must provide an application form, advice about the availability of legal assistance and facilities for making an asylum application. But it’s on request you see. And the Minister’s submission on Monday morning, this Monday, in this country was, ‘Look, its true there’s only one way to claim asylum and that’s by filling out form 866, but he only asked for asylum, and that’s not the same as asking for the form, therefore we had no obligation to give him the form’. And by the same logic of course, if they changed the number of the form every week, no one would ever be able to seek asylum because no one would ever know what form to ask for, and DIMIA have no obligation to volunteer what form you should ask for.
The Nauru case
The Pacific Solution debauches the Constitution of Nauru. That Constitution, being a modern instrument, contains in it a guarantee that you will not be detained except after a proper trial. In other words you can’t be imprisoned except by being found guilty of an offence. There are some limited exceptions to that principle. The only one presently relevant is that you can be detained without trial if you have entered the country unlawfully and you are being held either for deportation or for extradition.
Now that exception simply can’t operate in the case of the people who are intercepted on the high seas and are dumped on Nauru.
Recently an action was begun in the Supreme Court of Victoria on behalf of the remaining detainees on Nauru. The action seeks damages for false imprisonment.
The case questions the legality of the Pacific Solution. It offers the possibility of inducing some movement in the government’s stance, but these things are hard to predict.
The government tried to strike the case out at the threshhold, but were refused.
This link will tell you more about the case: http://www.theage.com.au/text/articles/2004/01/23/1074732609655.html
|delegate of minister|
|judicial review||constitutional writ||Under section 75(v) of Constitution|
|federal court||federal court judge sitting alone; alternatively a federal magistrate|
|full federal court||3 federal court judges, or one judge if on appeal from federal magistrate|
|high court||Special leave hearing: 2 judges. No appeal unless special leave granted|
|section 417||Ministerial discretion: visa|
|section 48B||Ministerial discretion: new visa application|
Useful legal resources
International resources and conventions:
Comprehensive country info from Uni. Minnesota
(this library brings together country information compiled by human Rights Watch, UNHCR and US State Department)
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Level 8, 133 Castlereagh Street, Sydney
GPO Box 5218, Sydney NSW 1042, Australia
tel: (+61 2) 9284 9775
fax: (+61 2) 9284 9849
Links to other human rights organisations
Melbourne (03) 9235 3901; fax (03) 9235 3948 fax (03) 9235 3973
Fax (02) 9299 8039, Managing Director, Sydney Head Office.
Fax (02) 9262 6005, Executive General Manager Operations.
Fax (02) 9295 0288, General Manager, Detention Services.
Fax (02) 6264 1875, Director, Detention Section (DIMIA).
Baxter Immigration Detention Facility
ph; 08 8641 8902
Locked Bag 1
Port Augusta, SA, 5700
PO Box 2477
Phone: (08) 9479 1257 & 9277 1914
PO Box 286
Belmont, W.A. 6984
Port Hedland IRPC
Phone: (08) 9173 2822
Fax: (08) 9173 2825
P.O. Box 377 (> 9am‑10pm WA time) (> 9‑5 Mon‑Fri only)
Port Hedland, W.A. 6721
Dempster Street, Cooke Point WA
phone: (03) 9318 1999
53 Hampstead Street
Maidstone 3012[visiting hours: 10am-11am; 2pm-4.30pm; 7pm-9pm]
5 Miowera Road PO Box 413
Chester Hill Chester Hill
NSW 2162 NSW 2162
Migration Agents & legal support
Refugee and Immigration Legal Centre Inc. (RILC)
95 Brunswick Street, Fitzroy, Vic. 3065
Phone: (03) 9483 1144
Fax: (03) 9483 1136
Advice Line: 1-4pm Wed (03) 9483 1140
Asylum Seekers Resource Centre
267 Jeffcott Street,
West Melbourne 3003
phone: (03) 9326 6066,
Fax: (03) 9326 5199
Fitzroy Learning Network
198 Napier Street
03 9417 2897
460 Victoria St
Refugee Advocacy Service South Aust (RASSA)
PO Box 54 Rundle Mall Adelaide 5000
08 8211 9097 08 8211 6955
Refugee Advice Casework Service
Suite 8C, 46-56 Kippax St
Surry Hills NSW 2010
Tel: 02 9211 4001
Fax: 02 9281 8078
Australian Lawyers for Human Rights
tel 02 9399 6153
mob: 0408 088 024
Public Interest Advocacy Centre (PIAC)
Level 1, 46-48 York Street
SYDNEY NSW 2000
DX 643 SYDNEY
Ph: (02) 9299 7833
Fax: (02) 92997855
Jesuit Refugee Service
Judy Hunt 02 9356 3888
South Brisbane Immigration & Community Legal Service Inc
Floor 1, 170 Boundary St
West End 4101
Ph: (07) 3846 3189
Fax: (07) 3844 3073
Rural Australians For Refugees, Port Augusta:
04 2198 3595
Hazara Association of Vic
PO Box 7268 Dandenong Vic 3175
Ph: (03) 9547 0849
Mobile: 0438 895 728
Fax: (03) 9792 0195
SASH – Support for Asylum Seekers at Hearings
They accompany asylum seekers to hearings, DIMIA interviews, hospital appointments, and other occasions likely to be stressful
Contact Margaret Howse 03 9380 5892 or 0400 812 183
 On internet find Migration Act at: http://scaletext.law.gov.au/html/pasteact/0/436/top.htm
 76 Wash. U. L.Q. 243; Spring 1998
 “75. In all matters- …
(v) In which a writ of Mandamus or prohibition or an injunction is sought against
an officer of the Commonwealth:
the High Court shall have original jurisdiction.”