Administrative Review Council

Letter 4 Migration Litigation Review


The Council was invited to participate in the Government’s review of litigation associated with decisions made in the migration sphere. The review was prompted by an increase in the number of cases and the delays in resolving them. There were also concerns about the low rate of success of applications for review. The Council made a number of suggestions, including introduction of a summary dismissal option in the Federal Court and provision of assistance to applicants in the development, lodgment and presentation of claims. The Council emphasised, however, the special nature of the migration jurisdiction and considered its proposals should not be seen as necessarily having wider application.


4 December 2003

Ms Hilary Penfold PSM QC
Head, Migration Litigation Review
Attorney-General’s Department
Robert Garran Offices
BARTON ACT 2600

Dear Ms Penfold


Migration Litigation Review: Administrative Review Council submission

I refer to our recent discussions about strategies which might be employed to expedite the resolution of claims under the Migration Act 1958 relating to visa status and to reduce the number of unmeritorious claims before Australian courts and tribunals.

Having regard to the issues identified in the terms of reference for inquiry by the Review Taskforce, set out below are a number of broad suggestions that the Administrative Review Council believes could assist in this regard.

Summary of suggestions

The suggestions made by the Council may be summarised as follows:

The Council’s suggestions reflect the view that the required response in this area would be a multi-faceted one directed at various aspects of the decision making process and at a range of participants in that process. The suggestions also reflect the view that the migration litigation caseload has to be addressed as both a short-term and a long-term problem. That is, the response needs to be one that would be effective in reducing the caseload in the short term, while also making it less likely that a similar situation would arise in the future.

Rather than seeking to identify all elements to be accommodated in such a response, the Council has chosen to focus on a number of principles and issues which it considers to be of particular significance.

The Council is aware of measures currently being undertaken at departmental, tribunal and judicial levels to expedite decision making and review processes and to assist claimants, particularly those without legal representation, at various levels of the claim and review process.[1] 

The Council notes that its broad suggestions are intended to complement rather than to supplant such initiatives.

Some general observations

Impact on other administrative areas

An important aspect of claims in the migration area is the advantage for applicants that often lies in seeking to prolong the decision making process. As a result, the motivation for seeking administrative review of a decision in relation to such a claim can be quite unrelated to the quality or lack of quality of that decision.

Proposed solutions in the area can often represent no more than a response to the incentive to prolong proceedings: as such, they are not appropriate for wider application.

For this reason, the Council would not wish the suggestions set out below or, indeed, the recommendations for reform arising ultimately from the deliberations of the Taskforce, to be extended to other areas of administrative decision making without very careful consideration.

Importance of upholding administrative review system

In seeking to respond to problems associated with unmeritorious claims and related resource issues in the migration area, the Council considers that it is very important that the administrative review system not itself be undermined.

Administrative review, and judicial review in particular, have an important and continuing role to play in protecting individual rights and interests by ensuring that administrative decision making is lawful, procedurally fair and based on reasonable grounds. Administrative review also has important implications for executive accountability. In seeking to deal expeditiously with migration cases, it is important that sufficient regard be had to these principles and protections.

Outline of Council suggestions

The Council’s suggestions are prefaced with the observation that the provision of adequate resources is essential to high quality and expeditious decision making at all levels of the migration decision making chain.

An improvement in the quality and thoroughness of primary decision making will not necessarily result in a corresponding decrease in the number of people seeking review and appeal of decisions. However, it will make it far easier for review bodies to determine whether or not there has been legal error in the decision making process and to expedite the disposition of cases. In turn, this will make it easier to justify the imposition of limitations on appeal rights at the judicial review stage. Effective training for primary decision makers and tribunal members is an element critical to achieving this end.

To reduce caseloads and to expedite the resolution of migration claims, the Council considers that, optimally, there should be only three opportunities for the consideration of migration claims: one at the primary decision making level, one at the merits review level and one at the judicial review level.

Although as a result of s. 75 of the Constitution, it may be impossible to limit judicial review to one instance, the aim should be to produce a system that encourages only one substantive opportunity for judicial review.

There is, of course, the opportunity to appeal within the court system. Importantly, however, any appeal to the High Court under s. 73 of the Constitution requires the leave of that Court. Leave to appeal is given infrequently and usually only on matters of profound legal significance.

Summary dismissal on the papers

Although there may be some cases in which individuals may be seeking to delay or frustrate administrative processes, there are others where they are not. In the Council’s view, by virtue of the methods they employ and their necessary focus on the case at hand, courts rather than the executive are better placed to identify and to address abuses in particular cases.

It is often suggested that such cases should be stemmed through a process of application for leave to either the Federal Court or the Federal Magistrates Court. However, one problem with this solution is that it does not involve an exercise of substantive jurisdiction by either Court, thus leaving it open to a person to make an application for judicial review in the High Court under s 75 of the Constitution.

Alternatively, if there is a right of appeal from a refusal of leave by the Court, all that will be achieved in many cases is the introduction into the process of another step, and the prospect for further delay.

Rather, the Council would favour a system of non-appellable summary dismissal on the papers—that is, an exercise of jurisdiction as distinct from a procedural step. As noted below (in the discussion of issue estoppel), this option may be significant in restricting the prospect of a parallel or subsequent application being made in the High Court under s 75 of the Constitution.

In view of the profound effect that summary dismissal decisions are likely to have on individual rights, the Council considers that, because of the senior position it commands in the judicial hierarchy, the Federal Court would provide the most appropriate point at which to introduce the summary dismissal process.

The exercise of the Court’s jurisdiction would be enlivened by an application by the respondent agency for the dismissal of a claim. That is, the summary dismissal of a case would not be a routine option automatically considered by the Federal Court in every case commenced before it or the Federal Magistrates Court, but only in those cases in which an application for summary dismissal was made to the Federal Court.

Another reason why this jurisdiction should be exercised by the Federal Court is that it occupies a singular strategic position in the appeal and review process. It variously has a judicial review jurisdiction conferred by s 39B (and in limited immigration cases by the ADJR Act), a jurisdiction on remittal from the High Court under s 44 of the Judiciary Act 1903, an appellate jurisdiction from the Federal Magistrates Court and the Administrative Appeals Tribunal, and a jurisdiction to refer matters to the Federal Magistrates Court.

The Council would envisage that only those cases in which the Court determined that there was no significant prospect of success would be subject to dismissal. Determination could be by a single judge of the Court and, in many cases, on the papers on the basis of written submissions.

Where the Court was of the view that the case should not be summarily dismissed and the matter was one which could appropriately be heard in the Federal Magistrates Court, as presently, it could refer the claim to that court. Alternatively, it could direct that the case proceed in the Federal Court.

An additional advantage of the summary dismissal process would be that if a writ were issued out of the High Court and all the issues had in fact been heard and determined in the summary dismissal proceedings before the Federal Court, the High Court could dispose of the matter on the basis of issue estoppel.

Material provided by respondent

The quality of the material provided on the papers would be critical to the efficacy of the summary dismissal process: all arguments to be relied on would have to be identified at that point so that oral argument would not be required and further argument on additional grounds could not be brought. In such circumstances, it would clearly be necessary for the documentation of each party to be well presented, comprehensive and consistent with the requirements of the legislation.

As claims would be dismissed with no right of appeal, it would be essential to ensure that applicants for migration status received comprehensive assistance in the identification of issues and the preparation of arguments. To stay proceedings to allow further materials to be submitted to the court would defeat the object of the summary dismissal process.

Although a similar summary dismissal process could operate at the Federal Magistrates Court level, the Council would not favour this. Given the gravity of the consequences of an adverse finding for someone seeking refugee status, for instance, the Council considers that it would be desirable for such decisions to be made by a Federal Court judge.

Other suggestions

Legislative limitations

As indicated by the Council in its recent discussion paper, The Scope of Judicial Review, from a constitutional perspective, although it cannot exclude the High Court’s original jurisdiction under s 75 of the Constitution, the Commonwealth Parliament has considerable power to create and to define the scope of administrative decision making powers. Thus, while Parliament cannot exclude the jurisdiction of the High Court under s 75 to review for legal error, the Parliament can define the parameters for examining whether such an error has occurred.

An impor tant element of this distinction is that it is not in style a limitation on the scope of judicial review. It is a rather a legislative redefinition of the issues that are likely to arise in judicial review. To that extent, it is a legitimate and uncontroversial exercise of the legislative authority of the Parliament to define the substantive law and the scope of administrative decision making authority. The way in which legislative limitations upon decision making are sought to be imposed can also have a significant impact on the complexity and the duration of court and tribunal hearings.

Recent history is cluttered with legislative attempts to limit the grounds and the scope of judicial review in the migration area. The most recent ‘privative clause’ provision is illustrative. Following the introduction in October 2001 of the privative clause in s 474 of the Migration Act, the number of applications for review has not only risen, but the review process itself has become more time consuming.[2]

It is the Council’s view that provisions which seek to inhibit judicial review should be clearly stated, with the emphasis on defining the ambit of power conferred on the decision maker rather than the extent to which the courts are precluded from examining an exercise of power. Such controls should be unambiguously anchored to specific administrative decision making provisions.

Assistance and representation

There is evidence that unrepresented litigants can be less successful than those with representation, albeit for a range of reasons.[3]

Undoubtedly, the absence of representation can prolong hearings and significantly add to their cost. It is not cost or time effective to have a Federal Court judge advising an applicant on the presentation of his or her claim before the court.

As noted in the annual report of the Federal Magistrates Court, ‘[a]pplicants cannot reasonably be expected to present sound or comprehensive legal arguments personally, particularly those seeking review of protection visas …’[4]

As a matter of broad principle, the Council is of the view that all applicants for external review of migration decisions should be provided with legal or other expert assistance (including well trained and well informed interpreters and migration agents) in the development and, where appropriate, the presentation of their applications.

The provision of assistance to applicants at the external review stage would also help to address the problem of repeated review applications, where arguments not identified initially in proceedings are subsequently brought to the attention of the court.

To minimise suggestions of bias, assistance should be provided by manifestly independent individuals and organisations, not linked to the primary decision making department.

The Council notes that the issue of self-represented litigants is being addressed in the Federal Magistrates Court and in the Federal Court. The Council also notes that a pro bono scheme has been established by the Federal Magistrates Court similar to that operating in the Federal Court.[5] 

Possibly, assistance could be supplemented, as in the veterans’ affairs area, through the provision to applicants and their representatives of access to interactive computer based systems designed to enable them to assess the likely prospects of their claims and to check that all the necessary legislative elements have been addressed.

Where migration advisers or lawyers have been responsible for the lodgment with courts and tribunals of unmeritorious applications, consideration should be given to making them liable for the costs of the proceedings and/or disciplinary or penal sanctions. Again, it would be preferable that options of this kind should be spelt out explicitly in the migration legislation, rather than being left to chance or to the exploratory use by courts and professional regulatory bodies of their generic powers to control proceedings and practitioners.

However, the Council stresses that it would be important to provide f or such measures only in clear cases of abuse, so as to ensure that those willing to assist applicants, often on a pro bono basis, were not deterred.

Automated assistance at the primary level

Consideration could be given also to the use of computer rule-based systems in the determination of certain elements of a claim, particularly those relating to migration visas. As noted in the Council’s Issues Paper Automated Assistance in Administrative Decision Making, the use of such systems can promote consistency and accuracy in administrative decision making.

These are both significant factors in reducing the likelihood of applications for review on the basis of poor decision making, and could also assist in providing a well documented audit trail in circumstances in which review does occur.

Proceedings—general

These should be streamlined as much as possible. The Council notes that at the tribunal level, under the Migration Act[6], tribunals can make a decision on the basis of documents provided by the applicant and the Department of Immigration and Multicultural and Indigenous Affairs if the tribunal considers that it should decide on the basis of the material before it or if the applicant agrees.

Where hearing on the papers is not possible, reliance should be placed to the greatest extent possible on the documentary and written evidence. Effective links need also to be maintained with the Department to ensure that additional information is readily accessible.

To further expedite the process, and to address the object of some claimants in seeking to prolong and to delay proceedings, tight time limits could be statutorily imposed at all levels. The Council notes that this has been done in the Administrative Appeals Tribunal in relation to character and conduct proceedings.

Where tribunal hearings do occur, consideration could be given to the use of multi-member panels in some difficult cases, rather than a single member as is the case currently in the Refugee Review Tribunal. In such circumstances, it has been noted that the single member is ‘the investigator, hearing advocate and decision maker’ and that such an array of skills is not easily combined in one person: additionally, in a jurisdiction where issues of credibility can often be pivotal, the member may be ‘perceived as the adversary as well as the decision maker’.[7] 

Some of the issues to be addressed in refugee cases in particular are also complex and of precedential significance, and likely by their nature to be contested in subsequent proceedings in a court. It is therefore important, in stemming the number of judicial review applications, that the tribunal (through the occasional use of multi-member panels) is regarded as being an expert body that is able to deal effectively and definitively with complex as well as more straightforward cases.

I hope that these comments are of assistance to the Taskforce. Should you require clarification or greater elaboration of any of the above, please do not hesitate to contact me on 08 9220 0468 or Margaret Harrison-Smith, the Council’s Executive Director, on 02 6250 5800.


Yours sincerely
 


Wayne Martin QC
President

[1] Such measures are well documented for instance in the annual reports of the Federal Court and the Federal Magistrates Court for 2002–03. They include specific procedures by the Federal Court in NSW, Victoria and South Australia to deal with the large number of matters remitted by the High Court and strategies to assist self-represented litigants.
[2] See, for instance, Federal Magistrates Court Annual Report 2002–03, 12.
[3] Australian Law Reform Commission, Report No. 89, Managing Justice: a review of the federal civil justice system, 659–61.
[4] Federal Magistrates Court Annual Report 2002–03, 26.
[5] Federal Magistrates Rules 2001 and Order 80 Federal Court Rules.
[6] Sections 360(2)(a)(b) (MRT) and 425(2)(a)(b) (RRT).
[7] Australian Law Reform Commission, Report No 89, Managing Justice: a review of the federal civil justice system, 643.