¹ 28 July 1951,189 UNTS 150.

² 31 January 1967, 606 UNTS 267.

³ P H Rohn, World Treaty Index Main Entry Section Part 2 1960-1980 (2nd ed 1983) III at 1394.

⁴ The term “refugee” for the purposes of the Refugee Convention is defined by article 1A of the Refugee Convention as modified by articles ID, IE, and IF of the Refugee Convention and article 1(2) of the Refugee Protocol. Article 1A(1) of the Refugee Convention provides that for the purposes of the Convention, the term “refugee” applies to any person who: “Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation.” Article 1A(2) of the Refugee Convention provides that for the purposes of the Convention, the term “refugee” applies also to any person who: “As a result of events occuring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” The temporal limitation was removed by article 1(2) of the Refugee Protocol, which provides that for the purposes of the Protocol, the term “refugee” means any person within the meaning of the Refugee Convention as if the words “As a result ofevents occuring before 1 January 1951 and” and the words “as a result of such events”, in article 1A(2) were omitted. Articles ID,IE and IF of the Refugee Convention provide for the exclusion from the application of the Convention of persons who would otherwise fall within the definition in article 1 A. The phrase “Refugee Convention definition” will be used as a shorthand reference to the definition of “refugee” contained in these articles. See S Taylor, “Australia’s Interpretation of Some Elements of Article 1 A(2) of the Refugee Convention — Marginalising the International Law Claims of On-shore Asylum Seekers in Pursuit of Immigration Control and Foreign Policy Objectives” (1994) 16 Sydney L Rev 32 for a detailed discussion of the main elements of the Refugee Convention definition.

⁵ G S Goodwin-Gill, The Refugee in International Law (1983) at 142-143.

⁶ Ibid at 147-148.

⁷ Of course, to the extent that its “mistakes” are deliberately made, a State would not be acting with the good faith that is required by the principle of pacta sunt servanda. See also articles 26 and 31 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. Australia acceded to this treaty on 13 June 1974. It came into force on 27 January 1980.

⁸ It is probably the case that a State would be breaching its Refugee Convention obligations by purporting toapply the provisions of the Refugee Convention to a person who was excluded from the benefit of those provisions by the application of articles ID, IE or IF. However, such a breach would be one of form rather than substance as a State could, in conformity with its Refugee Convention obligations, extend equivalent benefits to those provided for by the Refugee Convention to persons falling within articles ID, IE and IF, as long as it did not purport to do so pursuant to the Refugee Convention. See A Grahl-Madsen, The Status of Refugees in International Law (1966) I at 263.

⁹ Obviously, a State party might have domestic obligations which would be advanced by the correct rejection of invalid claims. What is being suggested is that incorrect acceptances are irrelevant when the issue is whether the State is effectively implementing its Refugee Convention obligations.

¹⁰ See also Aleinikoff, T A ‘Aliens, Due Process and ‘Community Ties’: A Response to Martin” (1983)Google Scholar 44 U Pittsburg L Rev 237 at 251-252.

¹¹ McKearn, W Equality and Discrimination under International Law (1983)Google Scholar at 276-277.

¹² Ibid at 282.

¹³ 16 December 1966, 999 UNTS 171. This convention entered into force on 23 March 1976. Australia ratifed the treaty with effect from 13 November 1980:1197 UNTS 411. At the time of ratification Australia made several reservations and declarations. However, the only reservations still current are reservations to articles 10(2)(a), 10(2)(b), 10(3), 14(6) and 20: Joint Committee on Foreign Affairs Defence and Trade, Review of Australia’s Efforts to Promote and Protect Human Rights (December 1992) at 23; [1993] Australian Legal Monthly Digest para 1664.

¹⁴ 16 December 1966, 993 UNTS 3. The ICESCR was ratified by Australia on 10 December 1975. It entered into force on 3 January 1976.

¹⁵ Preamble of the ICCPR and preamble of the ICESCR.

¹⁶ As article 26 of the ICCPR indicates, one aspect of the principle of equality is the principle of non-discrimination: N Lerner, Group Rights and Discrimination in International Law (1991) at 25; W McKearn, above nil at 8. The other aspect of the principle of equality requires the introduction of measures to achieve substantive equality: W McKearn, ibid. This aspect of equality is not relevant in the present context. The principle of non-discrimination requires States to refrain from “conduct which denies to individuals equality of treatment with other individuals” on unreasonable grounds: ibid at 8 and 11. Thus, when reference is made in these pages to non-discrimination or equality of treatment, it is to be considered implicit that differences in treatment based on reasonable grounds would not be characterised as discrimination or unequal treatment.

¹⁷ ”National origin” is a reference to ancestry rather than citizenship: R B Lillich, The Human Rights of Aliens in Contemporary International Law (1984) at 46 (in relation to identical words in article 2(1) of the ICCPR). However, this does not mean that discrimination on the later basis is permissible: ibid.

¹⁸ Report of the Human Rights Committee, UN GAOR: 44th session, Supp No 40 (1989) at 146.

¹⁹ Report of the Human Rights Committee, UN GAOR: 46th session, Supp No 40 (1991) at 15. The practice about which the Human Rights Committee expressed concern was the practice of giving English speaking asylum seekers priority in processing: ibid.

²⁰ Ibid.

²¹ It is the effect of any distinction made between persons which falls to be characterised as discriminatory or not, not the intention of the State in drawing the distinction: N Lerner, above n 16 at 25.

²² UN Doc A/CONF 2/22 and SR 5 at 9 cited in N Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953) at 74.

²³ N Robinson, above n 22 at 74-75.

²⁴ Report of UNHCR, UN GAOR: 44th session, Supp No 12 (1989) at 7.

²⁵ For example, before the collapse of communism, refugee status claimants from Eastern Europe and Indo-China appeared to be favoured by western nations: R Hofmann, “Asylum and Refugee Law” in J Frowein and T Stein (eds), The Legal Position of Aliens in National and International Law (1987) 2045 at 2047. By contrast, refugee status claimants from Latin America were accepted with great reluctance by western European countries: G Melander, “Responsibility for Examining an Asylum Request” (1986) 20 International Migration Review 220 at 227. The reluctance was caused in part bythe fact that most Latin American refugees were left-wing and fleeing persecution by right-wing governments: ibid.

²⁶ And hence ensures that the State party accords equality of treatment to Refugee Convention refugees in the application of the Refugee Convention.

²⁷ UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol relating to the Status of Refugees (1979) at para 192. (Hereinafter cited as UNHCR Handbook).

²⁸ EXCOM was established in 1958: GA Res 1166(XII), 26 November 1957 and ESC Res 672(XXV), 30 April 1958 cited in G S Goodwin-Gill, above n 5 at 132. Australia is a member State of EXCOM. EXCOM functions in relation to UNHCR as an advisory body only: The National Population Council’s Refugee Review (July 1991) at 149.

²⁹ Article 35(1) of the Refugee Convention and article 11(1) of the Refugee Protocol.

³⁰ R Plender, “The Present State of Research Carried out by the English-speaking Section of the Centre for Studies and Research” in Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law, The Right of Asylum (1990) 63 at 84.

³¹ See also A E Schacknove, “American Duties to Refugees: Their Scope and Limits” in M Gibney (ed), Open Borders? Closed Societies?: The Ethical and Political Issues (1988) 131 at 141-143.

³² A person becomes a refugee for the purposes of the Refugee Convention and Protocol the moment he or she satisfies the definition of “refugee” contained in those treaties. Although State parties to the Refugee Convention and Protocol each make their own determinations of refugee status under those treaties, they simply recognise refugee status through their determination procedures, and do not grant it: G S Goodwin-Gill, above n 5 at 20.

³³ A Swart, “The Problems Connected with the Admission of Asylum Seekers to the Territory of Member States” in the Council of Europe, The Law of Asylum and Refugees: Present Tendencies and Future Perspectives: Proceedings of the 16th Colloquy on European Law, Lund, 15-16 September 1986 (1987) 65 at 90.

³⁴ See T A Aleinikoff, above n 10 at 248, who puts forward a similar argument in the context of applying the balancing test laid down by the US Supreme Court in Mathews v Eldridge 424 US 319 (1976) to determine what the due process clause of the US Constitution requires in relation to asylum applications. Cf D A Martin, “Due Process and Membership in the National Community: Political Asylum and Beyond” (1983) 44 U Pittsburg L Rev 165 at 222.

³⁵ In Australia, the common law itself now recognises the accused’s right to a fair trial. In McKinney v R, the majority of the High Court of Australia emphasised that “[t]he central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law”: (1990) 98 ALR 577 at 583. Doyle has suggested that the majority judgment indicates that the High Court now takes a “rights-centred approach”: J J Doyle, “How Far Can the Common Law Go Towards Protecting Human Rights” (unpublished conference paper, Australia and Human Rights: Where to from Here?, ANU Centre for International and Public Law, 15-17 July 1992) at 24. The rights-centred approach is evident again in the decision of the High Court in Dietrich v R (1992) 109 ALR 385. While rejecting the proposition that an accused has a right to be provided with publicly funded legal assistance, the High Court accepted that, under Australian law, “an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial.”: Dietrich v R (1992) 109 ALR 385 at 396 per Mason CJ and McHugh J. See also Deane J at 409-412, Toohey and Gaudron JJ at 436-438. This statement of principle is implicitly accepted by the two dissenting judges, Brennan and Dawson JJ. What should be kept in mind is that the content of the common law right to a fair trial is not of concern here. What is of concern is the content of the right to fair trial at international law. Although it is unrealistic to expect that Australia could be persuaded to impose higher procedural standards in relation to refugee status determinations than actually exist in relation to its criminal trials, the relevant question is still whether Australia is meeting international procedural standards, not whether it is meeting domestic ones.

³⁶ 4 November 1950,213 UNTS 221.

³⁷ Addendum to the Report of UNHCR, UN GAOR: 32nd session, Supp No 12A (1977) para 53(6)(e) cited in UNHCR Handbook, above n 27 at para 192.

³⁸ A S Ellerson, “The Right to Appeal and Appellate Procedural Reform” (1991) 91 Columbia L Rev 373 at 378.

³⁹ Department of Immigration, Local Government and Ethnic Affairs (DILGEA), Review ‘92: Annual Report 1991-92 at 75.

⁴⁰ From a government’s point of view, it is better to get it right at the start because it costs more to get it right on appeal. Moreover, governments operate on the assumption that expeditious decision-making will discourage persons from arriving in their territory with the objective of making abusive claims for refugee status. Delay is also undesirable from the point of view of genuine refugee status claimants. For a start, the longer the delay between the lodging of an application and the consideration of the claim the more likely it is that the claimant would have forgotten the details of events on which he or she is basing his or her claim. Secondly, the longer the period for which their future is in doubt, the more likely it is that claimants will suffer from stress-related problems ranging from sleeplessness to suicidal tendencies: “Charter Challenges to Lengthy Delays Fail”, Law Times (Canada), 13 April 1992 at 9. This may adversely affect their ability to present their claim in a coherent and persuasive manner.

⁴¹ SeeTaylor, S “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions” (1994)Google Scholar 13 U Tasmania L Rev 43.

⁴² ARC, Report No 25 (1986) at para 334.

⁴³ Section 83 of the Migration Legislation Amendment Act 1994 (Cth) provides for the renumbering and relettering of the provisions of the Migration Act 1958 (Cth) with effect from 1 September 1994. Pre-1 September 1994 numbering and lettering are used in all citations to the Migration Act in this article. A decision made before 1 September 1994 to refuse to grant an entry permit (a criterion for which is that the claimant is a non-citizen who has been determined to be a refugee) is also an RRT reviewable decision, as is a decision not to approve an application for a protection visa: s 166B(l)(b) and (c). The Act provides for the Principal Member of the RRT to refer to th Administrative Appeals Tribunal (AAT) any RRT reviewable decision which he or she considers to involve “an important principle, or issue, of general application”: s 166HA(1). The AAT may accept or decline the referral: s 166HB(1). Where the referral is accepted, AAT review of the decision is substituted for RRT review: s 166HB(3). For the purposes of such review, the Act provides for the AAT to be constituted by two members of the AAT and the Principal Member of the RRT: s 166HD(a).

⁴⁴ Section 166HD(a) also provides for AAT review to be conducted by three members of the AAT in certain circumstances. As at 13 December 1993, no referral had been made: Interview with L Certoma, Principal Member of the RRT, 13 December 1993. AAT review will not be further discussed. Section 166B(2)(b).

⁴⁵ As at 13 December 1993, no conclusive certificate had ever been issued by the Minister in relation to a refugee status determination: Interview with L Certoma, 13 December 1993. “

⁴⁶ Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization”: Whitlam v Australian Consolidated Press Limited (1985) 73 FLR 414 at 422 per Blackburn J.

⁴⁷ Section 166B(3)(a).

⁴⁸ Harris, S “Immigration and Australian Foreign Policy” in J Jupp and M Kabala (eds), The Politics of Australian Immigration (1993)Google Scholar 23 at 29.

⁴⁹ It should be noted that the decision to issue a conclusive certificate is not “a judicially reviewable decision” as defined by s 166LA of the Migration Act (not yet in force) nor is it a decision listed in s 166LA(2) of the Act. It follows that it is not a decision in respect of which the Federal Court of Australia (on or after 1 September 1994) either has no jurisdiction or has jurisdiction only under the Act. See also below.

⁵⁰ See below for a discussion of the High Court of Australia’s jurisdiction under s 75(v) of the Australian Constitution.

⁵¹ Bayles, M D Procedural Justice: Allocating to Individuals (1990)CrossRefGoogle Scholar at 20-21. Australian administrative lawyers tend to think of the concept of “bias” in the context of natural justice. It is a requirement of natural justice that a case should not be heard by a decisionmaker who is actually or apparently biased. Apparent bias is considered to exist if “in all the circumstances the parties or the public might reasonably suspect that [the decisionmaker] was not unprejudiced and impartial”: The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262. An extension of the common law concept of bias to embrace institutional bias was accepted in Hannam v Bradford Corporation [1970] 1 WLR 937. The Hannam case was disparaged and distinguished in Casey v Australian Broadcasting Tribunal and Niland, Federal Court of Australia, unreported, 24 October 1988 at 19-29 per Wilcox J. The comments of Wilcox J in the Casey case relating to institutional bias were approved in Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659 at 676. It is emphasised that the concepts and terminology used here are not intended necessarily to mirror the concepts and terminology of the common law.

⁵² Redish, M H and Marshall, L C, “Adjudicatory Independence and the Values of Procedural Due Process” (1986) 95 Yale L J 455 at 476-477Google Scholar.

⁵³ Ibid.

⁵⁴ The Human Rights Committee asks for information about all these matters and more, when investigating whether a tribunal is independent within the meaning of article 14(1) of the ICCPR: D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1990) at 401.

⁵⁵ See M McConville, “Videotaping Interrogation: Police Behaviour on and off Camera” [1992] Crim L Rev 532 at 546-547 for a description of this phenomenon in the different context of police interrogation of crime suspects.

⁵⁶ W G Plaut, Refugee Determination in Canada: A Report to the Honourable Flora MacDonald, Minister of Employment and Immigration (1985) at 20.

⁵⁷ Whether or not a State is experiencing a large-scale influx is a question which can only be answered by having regard to the size of its population,territory and resources relative to the size of the influx: International Institute of Humanitarian Law, Problems Arising from the Large Number of Asylum-Seekers: A Study of Protection Aspects (June 1981) at 13. Australia has not yet experienced a large-scale influx, but is obsessed by the fear that theexperience lies in wait for it in the not too distant future.

⁵⁸ A Grahl-Madsen, “The Emergent International Law relating to Refugees: Past — Present — Future” in the Institute of Public International Law and International Relations of Thessaloniki (ed), The Refugee Problem on Universal, Regional and National Level (1987) 163 at 213 citing UN Doc A/CONF2/SR 35:21.

⁵⁹ EXCOM noted that: “The asylum seekers forming part of these large-scale influxes include persons who are refugees within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees or who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of their country of origin or nationality are compelled to seek refuge outside that country”: Addendum to the Report of UNHCR, UN GAOR: 36th session, Supp No 12A (1981) at 18 (Conclusions of the Committee) para 57(2).

⁶⁰ Ibid.

⁶¹ Ibid.

⁶² For examples see D Perluss and J F Hartman, “Temporary Refuge: Emergence of a Customary Norm” (1986) Virginia J of International Law 551 at 576-577 footnote 124.

⁶³ M H Redish and L C Marshall, above n 52 at 502.

⁶⁴ Ibid at 502-503.

⁶⁵ Between July 1991 and June 1993 (inclusive), a refugee status claimant rejected at the primary stage could request review by the RSRC. Since 1 July 1993, the RSRC has ceased to function. The RRT now conducts administrative review of refugee status decisions.

⁶⁶ DFAT, “Changes to Refugee and Humanitarian Policies” (1991) 2(3) Backgrounder 7 at 7.

⁶⁷ Refugee Advice and Casework Service (RACS) (Vic), Newsletter, October 1991 at 4.

⁶⁸ Joint Standing Committee on Migration Regulations, Australia’s Refugee and Humanitarian System: Achieving a Balance between Refuge and Control (August 1992) at 136.

⁶⁹ The DORS Committee had a membership of four government officials drawn from four different government departments. A UNHCR representative was present in an advisory capacity. The DORS Committee is now defunct.

⁷⁰ For example, this concern about the DORS Committee was raised in Human Rights Commission, Report No 13: Human Rights and the Migration Act 1958 (1985) at 46.

⁷¹ Measured against the standards of independence and impartiality established in relation to article 6(1) of the European Convention, the RSRC would certainly have failed to make the grade. It has been accepted in relation to the European Convention that the mere inclusion of persons connected with the executive government (or other interested parties) on a review body is not sufficient to rob it of independence and impartiality: (A E Boyle, “Administrative Justice, Judicial Review and the Right to a Fair Hearing under the European Convention on Human Rights” [1984] Public Law 89 at 99 citing Ringeisen v Austria (no 1) (1971) 1 EHRR 455 and Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 at 21 para 58). However, impartiality and independence, within the meaning of the European Convention, are not considered to be present where there is an imbalance in the composition of the review body which favours the executive government (or other interested party) and the appointees are subject to the influence of the executive government (or other interested party): A E Boyle, ibid; Langborger v Sweden (1989) 12 EHRR 416 at 425-426.

⁷² The RSRC had more government representatives than other Commonwealth administrative review bodies such as the Social Security Appeals Tribunal: RACS (Vic), Newsletter, October 1991 at 4.

⁷³ DFAT, “Changes to Refugee and Humanitarian Policies” (1991) 2(3) Backgrounder 7 at 7.

⁷⁴ E Lester speaking at RACS (Vic) Cambodian Asylum Seekers Workshop (2nd), Prahran, Victoria, 8 July 1992. At some point in the first half of 1992, a rule of practice was introduced to prevent this doubling up of functions: Letter from a member of the RSRC, 5 June 1992.

⁷⁵ Joint Standing Committee on Migration Regulations, above n 68 at 125.

⁷⁶ It should be noted that the appearance of independence and impartiality is not itself necessary for the achievement of reasonable efficacy in the implementation of article 33 of the Refugee Convention. However, appearances are good surrogate indicators of actualities where actualities cannot be assessed. Actual bias is difficult to detect and difficult to prove, so it is the potential for actual bias that must be eliminated in order to ensure that a refugee status determination system is able to meet the goal of reasonable efficacy in the implementation of the Refugee Convention.

⁷⁷ Interview with Attorney-General’s Department official A, 14 July 1992.

⁷⁸ Interview with DFAT official, 14 July 1992.

⁷⁹ Letter from DIEA official A, 11 March 1993.

⁸⁰ Interview with DFAT official, 14 July 1992.

⁸¹ Ibid.

⁸² Ibid; Interview with Attorney-General’s Department official A, 14 July 1992.

⁸³ DFAT, Annual Report 1991-92 at 88.

⁸⁴ Interview with Attorney-General’s Department official A, 14 July 1992.

⁸⁵ In its 1990-91 Report, the ARC expressed the view that the RSRC’s inability to make the actual decisions was a flaw in the system: ARC, Fifteenth Annual Report 1990-91 at para 112. Again, if measured against the standards of independence and impartiality established in relation to article 6(1) of the European Convention, this arrangement could not have been judged as meeting those standards. For instance, in 1985 the Crown appeal procedure in the Netherlands involved a Cabinet member making the decision on the advice of the Administrative Litigation Division of the Council of State: P van Dijk and G J H van Hoof, Theory and Practice of the European Convention on Human Rights (2nd ed 1990) at 335 footnote 695. The European Court held that this procedure was a breach of article 6(1) because, while the advisory body met the requirement of independence, the actual decision-maker did not: ibid, citing Benthem Case, European Court of Human Rights, Judgment of 23 October 1985, Series A No 97 at 18.

⁸⁶ A backlog case is, inter alia, a case in relation to which a review application: had been made before 1 July 1993 but a review decision had not been made before 1 July 1993; or had been made and quashed before 1 July 1993 and a further review decision had not been made before 1 July 1993; or had been made before 1 July 1993 and quashed after 1 July 1993. See s 166BAA of the Act. There are a few more variations on this theme set out in s 166BAA.

⁸⁷ Senator Bolkus, Media Release, B19/93, 1 July 1993, The same procedures were used by these delegates as the RRT would have been required to use had it been making the decisions: ibid.

⁸⁸ Ibid. The power of substituting a more favourable decision is one that the Minister has even in relation to decisions made by the RRT as a tribunal: s 166BE(1) of the Act. As exercise of the power cannot result in refoulement of Refugee Convention refugees, its existence does not undermine the independence of the RRT in a way which is relevant here.

⁸⁹ Section 179(1) provides: “A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.”

⁹⁰ Section 179(2).

⁹¹ In particular, s 179(3) provides that the Minister must cause a copy of any direction given to be laid before each House of Parliament.

⁹² Section 166JB(1) of the Act.

⁹³ Australia, Parliamentary Debates, Senate Estimates Committee F, 12 November 1993, F216(Senator Short).

⁹⁴ Telephone interview with DFAT official, 25 March 1993.

⁹⁵ Australia, Parliamentary Debates, Senate Estimates Committee F, 12 November 1993, F219(Professor Certoma).

⁹⁶ Letter from M Piper, Executive Director of RCOA, 8 April 1993.

⁹⁷ Section 166JD(1) of the Act.

⁹⁸ Ibid.

⁹⁹ Ibid.

¹⁰⁰ Australia, Parliamentary Debates, Senate Estimates Committee F, 2 September 1993, F157 (Ms Bedlington).

¹⁰¹ Telephone interview with M Gerkens, RRT member, 10 January 1994.

¹⁰² Ibid.

¹⁰³ Ibid.

¹⁰⁴ It appears that the members of an important tribunal approached the Constitutional Commission’s Advisory Committee on the Australian Judicial System and put the case for permanent appointments to the tribunal, explaining that in cases where the Government was an interested party the members of the tribunal felt pressured to make decisions conforming to government policy in order to secure reappointment: R E McGarvie, “The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence” (1992) 1 Journal of Judicial Administration 236 at 241. Given the political sensitivity of the whole issue of on-shore asylum seekers, there is no reason to suppose that there will be any less government pressure on the members of the RRT.

¹⁰⁵ Section 166JE(1) of the Act. There is some provision for remuneration and allowances to be prescribed, but the Remuneration Tribunal Act 1973 (Cth) governs: s 166JE(l)-(3) of the Act.

¹⁰⁶ Section 166JF(1) of the Act. This is equivalent to the remuneration level of AAT and Immigration Review Tribunal (IRT) members: Sen Deb 1992, Vol 157 at 4457 (Senator Tate).

¹⁰⁷ Section 166JF(2).

¹⁰⁸ Section 166JF(3).

¹⁰⁹ Section 166JK(1).

¹¹⁰ Ibid.

¹¹¹ Section 166JK(2)(a)-(d).

¹¹² Section 166JK(2)(e).

¹¹³ Section 166JK(2)(h).

¹¹⁴ Section 166JK(2)(f).

¹¹⁵ Section 166JK(2)(g).

¹¹⁶ R E McGarvie, above n 104 at 239.

¹¹⁷ Interview with L Certoma, 13 December 1993.

¹¹⁸ Ibid.

¹¹⁹ Interview with P Leehy, RRT Registrar, 9 December 1993. The amount of the appropriation is determined in negotiations between the RRT and the Minister for Finance: ibid.

¹²⁰ From 1 July 1993 to 13 May 1994 the RRT made 1124 decisions: figures provided by Legal Research and Publication Section, Principal Registry, RRT. In 154 of these decisions, the primary decision was set aside: ibid. In other words, the RRT’s overall set-aside rate in this period was 13.7 per cent. This is quite a high set-aside rate and it suggests that RRT members are thus far, in fact, making independent and impartial decisions. All that the preceding part of this article suggests is that the shortcomings identified make the independence and impartiality of the RRT too much dependent on the strength of mind of individual members to be entirely satisfactory.

¹²¹ Sen Deb 1992, Vol 157 at 4457 (Senator Tate).

¹²² Ibid.

¹²³ Committee for the Review of the System for Review of Migration Decisions, Non-aversarial Review of Migration Decisions: The Way Forward (December 1992) at para 5.5.2.

¹²⁴ See also M H Redish and L C Marshall, above n 52 at 476.

¹²⁵ See S Taylor, above n 41 at 62.

¹²⁶ por instance, it was held in the Canadian case of Re Singh and the Minister of Employment and Immigration (1985) 17 DLR (4th) 422 that “fundamental justice” (per s 7 of the CanadianCharter of Rights and Freedoms) is not accorded where serious issues of credibility are determined solely on the basis of written submissions. The decision-maker, in the Singh case, was required to make a re-determination of the refugee status claim involved, on the basis of a full oral hearing on the merits.

¹²⁷ Though cultural and other factors can cause demeanour to be misleading to the decisionmaker, observation of demeanour is still useful if approached with appropriate caution.

¹²⁸ UNHCR Handbook, above n 27 at para 200.

¹²⁹ Goldberg v Kelly 397 US 254 at 269 (1970) per Brennan J; cited in Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 118 ALR 165 at 189.

¹³⁰ Interview with R Smidt, RRT member, 10 December 1993.

¹³¹ Ekbatani case, App No 10563/83, Eur Court H R, Judgment of 26 May 1988, Ser A No 134.

¹³² (1993) 118 ALR 165 at 178.

¹³³ Interview with R Fordham, 10 December 1993.

¹³⁴ ibid.

¹³⁵ (1993) 118 ALR 165 at 179.

¹³⁶ Ibid.

¹³⁷ Ibid.

¹³⁸ Ibid at 184.

¹³⁹ Ibid at 191.

¹⁴⁰ DIEA’s statement of reasons for decision (s 166BF(2) of the Act), any other documents relevant to the decision provided to the RRT by DIEA (s 166BF(3)), further written arguments (if any) submitted by DIEA (s 166D(2)), and statutory declarations and written arguments (if any) submitted by the claimant (s 166D(1)).

¹⁴¹ Section 166DA(1).

¹⁴² Section 166DB(l)(a).

¹⁴³ Section 166C(2)(a).

¹⁴⁴ Dr E Arthur, Refugee Briefing, seminar held at CAE Business Centre, Melbourne, 17 August 1992.

¹⁴⁵ Sen Deb 1989, Vol 134 at 3048 (Senator Ray) quoted in Minister for Immigration, Local Government and Ethnic Affairs v The Immigration Review Tribunal (1993) 41 FCR 71 at 77.

¹⁴⁶ Minister for Immigration, Local Government and Ethnic Affairs v The Immigration Review Tribunal (1993) 41 FCR 71 at 76-79.

¹⁴⁷ Interview with L Certoma, 13 December 1993.

¹⁴⁸ Interview with M Gerkens, 22 October 1993; interview with J Gardner, RRT member, 29 October 1993; interview with J Glaros, RRT member, 29 October 1993; interview with G Papadopoulos, RRT member, 27 October 1993.

¹⁴⁹ Ibid.

¹⁵⁰ Interview with R Smidt, 10 December 1993; interview with A Borsody, RRT member, 29 October 1993; interview with A Endrey, RRT member, 29 October 1993.

¹⁵¹ Interview with R Hudson, RRT member, 22 October 1993; interview with J Vrachnas, RRT member, 27 October 1993.

¹⁵² M Gerkens, “Principles of Evidence in the Refugee Review Tribunal and Certain Aspects of Tribunal Practice” (unpublished seminar paper, RRT members induction programme, Sydney, 5-15 October 1993) at 5.

¹⁵³ Section 166DC of the Act.

¹⁵⁴ Section 166DD(3) of the Act.

¹⁵⁵ Interview with M Gerkens, 22 October 1993; interview with A Borsody, 29 October 1993; interview with J Gardner, 29 October 1993.

¹⁵⁶ Interview with M Gerkens, 22 October 1993; interview with R Fordham, 10 December 1993; interview with J Gardner, 29 October 1993; interview with J Buss, RRT member, 14 December 1993; interview with R Smidt, 10 December 1993.

¹⁵⁷ Interview with M Gerkens, 22 October 1993.

¹⁵⁸ Interview with M Gerkens, 22 October 1993; interview with J Gardner, 29 October 1993; interview with J Glaros, 29 October 1993; interview with R Hudson, 22 October 1993; interview with R Smidt, 10 December 1993.

¹⁵⁹ Interview with R Fordham, 10 December 1993.

¹⁶⁰ Interview with M Gerkens, 22 October 1993. Persons who purport to be expert witnesses are required by the RRT to establish their credentials: M Gerkens, “Principles of Evidence in the Refugee Review Tribunal and Certain Aspects of Tribunal Practice” (unpublished seminar paper, RRT members induction programme, Sydney, 5-15 October 1993) at 6. Moreover, persons who are called as expert witnesses are required to provide their evidence in writing in advance of the hearing and are questioned about their written evidence at the hearing: interview with M Gerkens, 22 October 1993; interview with J Gardner, 29 October 1993.

¹⁶¹ Dr E Arthur, Refugee Briefing, seminar held at CAE Business Centre, Melbourne, 17 August 1992.

¹⁶² Interview with M Gerkens, 22 October 1993.

¹⁶³ G Hand, Media Release, MPS 35/92,15 July 1992.

¹⁶⁴ Section 166DB(2) of the Act.

¹⁶⁵ Interview with M Gerkens, 22 October 1993.

¹⁶⁶ Interview with L Certoma, 13 December 1993; interview with R Smidt, 10 December 1993; interview with J Gardner, 29 October 1993; interview with J Vrachnas, 27 October 1993; interview with A Endrey, 29 October 1993; interview with J Glaros, 29 October 1993.

¹⁶⁷ Interview with L Certoma, 13 December 1993.

¹⁶⁸ Interview with G Papadopoulos, 27 October 1993; interview with A Endrey, 29 October 1993; interview with R Fordham, 10 December 1993.

¹⁶⁹ Interview with J Gardner, 29 October 1993; interview with J Glaros, 29 October 1993.

¹⁷⁰ Interview with R Smidt, 10 December 1993; interview with J Gardner, 29 October 1993; interview with A Borsody, 29 October 1993.

¹⁷¹ M H Redish and L C Marshall, above n 52 at 499-500.

¹⁷² Courts exercising the judicial power of the Commonwealth cannot exercise non-judicial power: s 71 of the Australian Constitution. It follows that they can only review administrative decisions on “questions of law”: S D Hotop, Principles of Australian Administrative Law (6th ed 1985) at 320.

¹⁷³ Legomsky, S H Immigration and the Judiciary: Law and Politics in Britain and America (1987)Google Scholar at 279 citing this as an argument made by others.

¹⁷⁴ Ibid at 279.

¹⁷⁵ Ibid at 300.

¹⁷⁶ Ibid.

¹⁷⁷ Ibid. Australia’s executive Government is always drawn from the party which has the numbers to control the lower House of the Australian Parliament (House of Representatives). The party of the executive Government does not always have the numbers to control the upper House (Senate) but non-Government Senators would not block Government legislation in the Senate unless they believed that there was an enormous political advantage to be gained by such action.

¹⁷⁸ And this in turn effectively means the Government of the day.

¹⁷⁹ Section 71 of the Australian Constitution allows Parliament to create Federal Courts. Section 5 of the Federal Court of Australia Act 1976 (Cth) creates the Federal Court of Australia.

¹⁸⁰ The High Court of Australia is particularly secure, as it has been created by s 71 of the Australian Constitution and cannot be abolished save by constitutional amendment.

¹⁸¹ ludges are appointed for life and are only subject to removal in very limited circumstances: B Gaze and M Jones, Law, Liberty and Australian Democracy (1990) at 30-31.

¹⁸² N Stephen, “Southey Memorial Lecture 1981: Judicial Independence — A Fragile Bastion” (1981-2) 13 MULR 334.

¹⁸³ ”The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction …”: s 71 of the Australian Constitution.

¹⁸⁴ Leeth v Commonwealth (1992) 107 ALR 672 at 680 per Mason CJ, Dawson and McHugh JJ.

¹⁸⁵ Ibid at 681. See also Gaudron J’s comments: ibid at 706.

¹⁸⁶ Committee for the Review of the System for the Review of Migration Decisons, above n 123 at para 2.7.1.

¹⁸⁷ ”Judges on the Outer in Laws on Migration”, Canberra Times 10 November 1992 cited in Sen Deb 1992, Vol 157 at 4305-4306 (Senator Charmarette).

¹⁸⁸ jYiis assumes, of course, that the court will reach the correct decision. Refugee status cases will come before a court, after they have been the subject of decision by DIEA and the RRT. The court will have the benefit of their analysis. Refugee status claimants who apply for judicial review will almost certainly be represented by counsel experienced in refugee matters. The court will have the benefit of counsel’s analysis also. In such circumstances, the court, notwithstanding that it is a non-specialised tribunal, will have all the assistance necessary for it to interpret the Refugee Convention definition correctly.

¹⁸⁹ Section 5(l)(a) of the ADJR Act.

¹⁹⁰ Section 5(l)(e) and 5(2) of the ADJR Act.

¹⁹¹ Ibid.

¹⁹² Section 22A of the Act has been repealed with effect from 1 September 1994: ss 2(3) and 9 of the Migration Reform Act 1992 (Cth) and s 5 of the Migration Laws Amendment Act 1993 (Cth).

¹⁹³ M Gerkens, Meeting of the Law Institute Migration Committee, 22 June 1993.

¹⁹⁴ Section 166LL of the Act commenced on 1 September 1994: s 2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993.

¹⁹⁵ ”Judicially reviewable decisions” are defined in s 166LA of the Act. Section 166LA of the Act commenced on 1 September 1994: s 2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993.

¹⁹⁶ Section 166LA(2) of the Act states that certain decisions are not “judicially reviewable decisions”.

¹⁹⁷ Section 166LK of the Act commenced on 1 September 1994: s 2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993.

¹⁹⁸ Section 166LA(2)(d) of the Act.

¹⁹⁹ Section 166LA(l)(b) of the Act.

²⁰⁰ The attempt could not be completely successful because of the High Court of Australia’s constitutionally entrenched jurisdiction. See below.

²⁰¹ In 1992, only 10% of the Migration Act cases (ie about 6 cases) litigated in the Federal Court involved refugee status claims: Australia, Senate Committee on Legal and Constitutional Affairs: Migration Laws Amendment Bill 1993, 1 October 1993 at SLC 98-99 (Senator Short). However, DIEA considered the refugee cases to be of “special importance to the administration of the immigration portfolio”: Australia, Senate Committee on Legal and Constitutional Affairs: Migration Laws Amendment Bill 1993,1 October 1993 at SLC 98-99 (Mr Conybeare). In particular, DIEA has expressed concern that such cases are generally complex and litigating them consumes a disproportionate amount of DIEA resources: DILGEA, Review ‘92: Annual Report 1991-92 at 175. It should be noted that subsequent events could have served only to reinforce the Australian Government’s desire to oust the courts. In 1992-93, applications for judicial review were made in respect of 200 refugee status decisions: DIEA, Annual Report 1992-93 at 150. This was a twenty-fold increase over the previous financial year: ibid.

²⁰² According to Birrell, “[hjostility towards the courts’ ‘interference’ pervaded the DILGEA bureaucracy.R Birrell, “Problems of Immigration Control in Liberal Democracies: The Australian Experience” in G P Freeman and J Jupp, Nations of Immigrants: Australia, the United States and International Migration (1992) 23 at 33.

²⁰³ Section 166LB(2)(a) of the Act.

²⁰⁴ Section 166LB(l)(a).

²⁰⁵ Section 166LB commenced on 1 September 1994: s 2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993.

²⁰⁶ Subdivision AB of Division 2 of Part 2 of the Act, which commenced on 1 September 1994 (s2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993), contains a “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. This code applies to the primary stage of the refugee determination process but not to the RRT review stage, so it is not of concern here.

²⁰⁷ See above.

²⁰⁸ Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 118 ALR 165 at 190.

²⁰⁹ Section 166DD(7).

²¹⁰ See Heak, v Minister for Immigration, Local Government and Ethnic Affairs (1993)Google Scholar 29 ALD 505 at 508 for comment on this requirement in the context of refugee status determinations.

²¹¹ S Taylor, above n 41 at 73-75.

²¹² Interview with L Certoma, 13 December 1993.

²¹³ Section 166LB(2)(b) of the Migration Act. The ground of review in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 was unreasonableness. Judgment was given for the appellant on that ground. The Australian government was not happy with the Chan decision, so this provision is not surprising.

²¹⁴ Section 166LB(3)(d), (e) and (f) of the Act.

²¹⁵ Section 166LB(3)(g). Improper exercise of power is made a ground of judicial review: sl66LB(l)(d). The meaning of this term is limited to “an exercise of a power for a purpose other than a purpose for which it is conferred” (sl66LB(3)(a)); acting under direction (sl66LB(3)(b)); and inflexible application of rules or policy (sl66LB(3)(c)).

²¹⁶ M Allars, Introduction to Australian Administrative Law (1990) at 188.

²¹⁷ Preventing de facto merits review by the courts was a stated aim of the restrictions on the grounds of judicial review: Dr E Arthur, Refugee Briefing, seminar held at CAE Business Centre, Melbourne, 17 August 1992.

²¹⁸ The Chan case and Pancharatnam v Minister for Immigration, Local Government and Ethnic Affairs (1991) 26 ALD 217 are examples of applications for judicial review which were successful on the ground of unreasonableness.

²¹⁹ Section 166LB(l)(e) of the Act. The other grounds of judicial review (not already mentioned) are lack of jurisdiction (sl66LB(l)(b)); “that the decision was not authorised by this Act or the regulations” (s 166LB(l)(c)); fraud or actual bias (sl66LB(l)(f)); and the “no evidence” rule (sl66LB(l)(g) read together with sl66LB(4)).

²²⁰ por instance, it has been argued by Jackman that, in fact, the delegate’s decision in the Chan case (that the appellant was not a refugee) should have been reviewed on the ground that it involved an error of law. He points out that the High Court’s analysis of the Refugee Convention definition of “refugee” suggests that it regards the construction and application of the Refugee Convention definition to be a matter of law rather than a matter of policy: I M Jackman, “Administrative Law — Judicial Review — ‘Wednesbury unreasonableness’ — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(l)(e), 5(2)(g)” (1990) 64 ALJ 95 at 96. Jackman’s argument appears to be reinforced by the fact that, in the Bond case, Mason CJ suggested (obiter) that the decision of the Minister’s delegate in the Chan case was reviewable for error of law: Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462 at 471. Brennan and Deane JJ agreed with Mason CJ (at 482 and 483 respectively). However, the question has yet to be finally resolved: Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 367 at 377 per Gummow J; Minister for Foreign Affairs and Trade and Others v Magno and Another (1992) 37 FCR 298 at 304-305 per Gummow J. While there is room for development of the “error of law” ground in the context of the Migration Act, it should be noted that what the Act actually says is that it is a ground for review that “the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts”. This is to be contrasted with s 5(l)(f) of the ADJR Act which provides that it is a ground for review that “the decision involved an error of law, whether or not the error appears on the record of the decision” and s 6(l)(f) of the ADJR Act which provides that it is a ground for review that “an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision.” In other words, sl66LB(l)(e) of the Act appears to have been drafted with a view to discouraging creative interpretations of “error of law” (such as Mason CJ’s proposition in the Australian Broadcasting Tribunal v Bond that the error of law ground in s 5(l)(f) of the ADJR Act embraced the ‘”no evidence’ ground as it was accepted and applied in Australia before the enactment of the ADJR Act”: (1990) 64 ALJR 462 at 478).

²²¹ Section 166B(2)(b) of the Act.

²²² If, in a given case, the High Court of Australia could properly grant mandamus, prohibition or injunction it has jurisdiction also to grant the remedies of certiorari or declaration: M Allars, above n 216 at 99 citing R v District Court; ex parte White (1966) 116 CLR 644 at 655.

²²³ Attorney-General’s Department, Office of International Law, Submission No 156, 30 September 1991 in Joint Standing Committee on Migration Regulations, Inquiry into Refugee and Humanitarian Visas and Permits Submissions (1991) V at 711.

²²⁴ Unlike the writs of prohibition and certiorari, mandamus is not limited in application to bodies which have a “duty to act judicially”: S D Hotop, above n 172 at 281.

²²⁵ M Allars, above n 216 at 285.

²²⁶ Ibid; M Aronson and N Franklin, Review of Administrative Action (1987) at 492.

²²⁷ M Aronson and N Franklin, above n 226 at 498-499.

²²⁸ Ibid at 492-493.

²²⁹ M Allars, above n 216 at 285; M Aronson and N Franklin, above n 226 at 494-495.

²³⁰ Aronson and N Franklin, above n 226 at 495 footnote 84.

²³¹ Church of Scientology v Woodward (1982) 154 CLR 25 at 65 per Murphy J cited in M Aronson and N Franklin, above n 226 at 258.

²³² S D Hotop, above n 172 at 324.

²³³ Ibid; Church of Scientology v Woodward (1982) 154 CLR 25 at 65 per Murphy J, cited in M Aronson and N Franklin, above n 226 at 258.

²³⁴ Church of Scientology v Woodward (1982) 154 CLR 25 at 65 per Murphy J, cited in M Aronson and N Franklin, above n 226 at 258.

²³⁵ One of the criteria for the grant of a DPTEP is that the claimant has been determined by the Minister to have refugee status: clause 784.731 of Schedule 2 of the Migration (1993) Regulations, item 2602 of Schedule 1 of the Migration (1993) Regulations and s 33 of the Act. The grant of DPTEPs almost ceased as from 1 March 1994 to be replaced by the grant of Protection (Permanent) Entry Permits. One of the criteria for the grant of a Protection (Permanent) Entry Permit is that the applicant must either be the holder of a DPTEP or have been determined by the Minister to be a refugee: Clauses 817.721, 817.731 and 817.733 of Schedule 2 of the Migration (1993) Regulations, item 1501 of Schedule 1 of the Migration (1993) Regulations and s 33 of the Migration Act. Section 34 of the Act provides that, where it appears to the Minister that a claimant is entitled under the regulations to be granted an entry permit, the Minister must grant that entry permit. Sections 33 and 34 of the Act have been repealed with effect from 1 September 1994: ss 2(3) and 11 of the Migration Reform Act 1992 and s 5 of the Migration Laws Amendment Act 1993. One of the criteria for the grant of a Protection Visa is that the applicant is a refugee: s 26B of the Migration Act. Section 26ZF of the Migration Act provides that, if the Minister is satisfied that an applicant meets the criteria for the grant of a visa, the Minister must approve the application for that visa. Sections 26B and 26ZF of the Migration Act commenced on 1 September 1994: s 2(3) of the Migration Reform Act 1992 as amended by s 5 of the Migration Laws Amendment Act 1993.

²³⁶ It is appropriate to point out here that, even if the Minister is held correctly to have issued a conclusive certificate under s 166B(3) in respect of a decision, the issue of such a certificate cannot oust the High Court’s jurisdiction to review that decision and, indeed, the Act does not purport to provide for such ouster.

²³⁷ S D Hotop, above n 172 at 283-284.

²³⁸ Ibid at 285.

²³⁹ Ibid at 283-285. A decision is ultra vires in a broad sense if the decision-maker has failed to exercise a discretionary power, for instance by inflexibly applying a policy or acting under dictation, or the decision-maker has abused a discretionary power, for instance by exercising the power unreasonably (Wednesbury grounds) or for an improper purpose or by taking into account irrelevant considerations: ibid at 221.

²⁴⁰ Ibid at 285. M Aronson and N Franklin, above n 226 at 484.

²⁴¹ Letter cited by Senator Spindler, Sen Deb 1992, Vol 157 at 4293.

²⁴² Note, however, that s 166LK(3) of the Migration Act provides, with effect from 1 September 1994, that where a matter relating to a judicially reviewable decision is remitted to the Federal Court under s 44 of the Judiciary Act, the only grounds of review available to the Federal Court will be the grounds set out in the Migration Act itself.

²⁴³ The Security Appeals Tribunal is an independent tribunal established under s 41 of the Australian Security Intelligence Organisation Act 1979 (Cth).