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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
Ministerial discretion in migration matters
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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
Ministerial discretion in migration matters
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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
(SENATE-Wednesday, 22 October 2003)
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Content WindowSELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS - 22/10/2003 - Ministerial discretion in migration matters
CHAIR —Welcome to this hearing of the Senate Select Committee on Ministerial Discretion in Migration Matters. The Senate established this select committee on 19 June 2003 to inquire and report on the use, operation and appropriateness of the ministerial discretion powers under section 351 and 417 of the Migration Act 1958. The committee has received 36 submissions for this inquiry, 34 of which have been authorised for publication and are available on the committee's web site.
Witnesses are reminded of the notes they have received relating to parliamentary privilege and the protection of official witnesses. Further copies are available from the secretariat. Witnesses are also reminded that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. The committee prefers all evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in a private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera.
I now welcome Mr Steve Karas and officers of the review tribunals, Mr Blount and Mr Lynch. You have lodged submission No. 11 and additional information dated 15 October with the committee. Do you wish to make any amendments or alterations to that information?
Mr Karas —No, other than to indicate that the two matters that we wanted to correct from the record of our first appearance before the committee were contained in the letter of 15 October, as well as information that we took on notice from that first appearance.
CHAIR —Do you want to make a short opening statement, at the conclusion of which the senators on the committee can ask you questions?
Mr Karas —We are quite happy to take questions from the outset, Senator.
Senator JOHNSTON —Yesterday we had a number of witnesses say to us that they were concerned with the level of consistency with respect to the decisions made in the RRT. For the RRT I suspect we can say the MRT too, but the particular emphasis, particularly from one of our witnesses, was that there was such a level of inconsistency in the criteria giving rise to determinations that she perceived it as being unjust. Firstly, I think you need to respond to that and, secondly, I would like to know what mechanisms you have in place to ensure that, in your decision making processes, you do your best to live up to some form of precedent and some form of adherence to consistency. I know it is a very difficult area and that individual applications, whilst superficially similar, are often totally different to each other. Can you just give us a bit of an insight into how you deal with that consistency issue?
—I think it is the case that often there is a superficial inconsistency because matters may be characterised as similar but, in fact, there are often very particular circumstances. However, we do have a number of mechanisms in place to ensure that there is a common starting point in terms of the country information, and in terms of the understanding of the jurisprudence, the legal aspects and so on, and the approaches to them. That is done in a number of ways: through training, the provision of information and each other's decisions to members. When members commence they take part in a fairly intensive four days of training, which focuses very heavily on the legal framework as well as the means of conducting hearings, writing decisions and so on.
Whenever there is a judicial decision of any significance at all, a summary of it is circulated to all members with a link to the text of the judgment. When there are more significant matters, our legal section issues and distributes a bulletin to all members about them. We have, as a result of the accumulation of all that, an internal guide to refugee law, which is available both in hard copy and on the internal web for members. It is kept up to date as new decisions emerge, and people are encouraged to use it. We have similar mechanisms in place with regard to ensuring that we have, and make available to members and draw to the attention of members, the most up-to-date country information on those countries of ongoing interest.
We have from time to time ongoing professional development sessions for members with regard to country situations. For example, we recently had a UNHCR officer from Kabul, who was visiting Australia, come and talk to members about the situation there. Similarly, we had someone from Mdecins Sans Frontires, who had been posted in Herat in Afghanistan. So we do this both on an unstructured basis and on an ad hoc basis as people are available. We also, where appropriate, run training sessions on new legal issues. This is both for new members and for ongoing members. We have other mechanisms also. All new members are required to put their first 20 or 30 decisions through the legal section so that that section can draw to their attention any legal errors or questions that may arise. Members generally have the option of referring decisions to Legal for those kinds of comments if they wish, and that happens often when people are dealing with complex or precedential matters.
Where there are caseloads of particular difficulty, or where consistency may be a particular challenge, we take other measures as appropriate. For example, we have started receiving review applications from former TPV holders who have already been to the department of immigration and who are now seeking further protection visas. At the moment those early cases are predominantly Afghan. Significant legal and country information issues arise in relation to those. They are matters which a wide number of members will be doing because we expect that there is going to be a significant number of cases. In that instance—and we have been doing this as a very deliberate process over the last three months—a representative group of those initial cases has been constituted to our four senior members and me. We have been working through the issues in relation to those cases in consultation, as appropriate, with our legal and country people.
Although there is no formal statutory basis for decisions being precedential, we expect that by the time members more generally come to do these cases there will be a number of carefully thought out decisions from the more experienced members that have been done in a very deliberate manner. We will have a legal issues paper circulated. We have already updated the country information, and that would be an ongoing process. In short, we are conscious that this must always be an issue with a very large number of decisions and a large number of members sitting as a single member tribunal. We do take a range of practical measures to try to ensure that, although outcomes may be different, people are starting from the same basis.
Senator JOHNSTON —You may not be able to answer this, but can you give us an indication of how members perceive themselves? Do they perceive themselves as acting purely administratively, quasi-judicially or judicially? I am interested to know the practical way that members deal with the decision making process. It is very common in some administrative areas for decision makers to pre-empt the decision by disclosing what is on their minds and seeking submissions based on what they perceive to be the kernel of the matter and then having a debate with counsel and/or applicants. Forgive me, I have not appeared before the RRT: is that the way you would do it or is the nature of the judicial proceeding a little bit more stilted in that submissions are taken, you go away and consider your judgment and then come back and announce it? How do they perceive themselves and how do they do the mechanics of handing down decisions?
Mr Blount —It is not judicial. Clearly, we are in a legal sense administrative decision makers but there certainly are some quasi-judicial aspects. What happens can be incredibly wide-ranging, because what presents itself can be very different. There is a very consistent core to it, which is that by the time it comes to us it is at the review stage. So the applicant's own case—their claims and what they see as their relevant experience—have been presented in their application and submissions and, sometimes, if it is a detention case, at least in the primary interview and we have that file. So when a member is constituted a case they open the file, they read it and they see what the applicant's case and claims are. Any obvious difficulties with that case would normally have been spelt out in the primary delegate's record or reasons for decision, which would have been sent to the applicant. That would also contain references to relevant country material. The member, having looked at it, would firstly determine whether it was possible to reach a favourable decision on the papers that were in front of him or her. That is rarely the case—by definition, you have something that has been problematic, which is why it is on review.
Senator JOHNSTON —So the member is actually looking to be positive. You are saying that he is looking to say, `Is there any way the criteria or thresholds are breached here?' So it is not a negative approach; it is positive approach.
Mr Blount —He has to determine whether he is satisfied that the criteria are met. Initially he does that from the papers in front of him. It is rare that he can reach that view because if the matter was a lay down misre it should not have come to us in the first place—it should have already got a tick. It does happen, but rarely. The member or the tribunal will then write to the applicant advising the applicant that it is not possible to reach a favourable decision on the papers and offer him the opportunity for a hearing to present his case for which he may nominate witnesses. That hearing date typically offered is for somewhere between four to eight weeks in the future.
The tribunal would not normally define the issues at this point, partly because, in essence, they are already defined by the application, the reasons for decision, and, fundamentally, the definition that has to be applied to them. So, in that sense, the issues are normally fairly well flagged. But if there are particular gaps in information, or if the tribunal has particular information that is personal to the applicant on which comments should be sought, there is a mechanism through section 424 or 424A of the act to seek that information or put that information to the applicant in writing prior to the hearing. But, very frequently, more general information on the situation in the country will be discussed at the hearing. Often, there is not a lot of point in sending out 100 pages of country information in advance to someone whose English is not very good.
The issues often only crystallise in the course of the hearing. My experience has been that you go into a hearing with an expectation that someone has quite a strong case and, within five minutes, you find that things are on a very different footing and the reverse. Those issues do crystallise in the course of the hearing. You explore with the applicant their experiences; you try to draw out what is relevant; you put considerations to them which are perhaps giving you some trouble, or which you need clarification on; and you put information about the country that might be relevant to them in a way that crystallises what that actual issue is.
If there are substantive problems of that sort, you might well—whether or not the applicant or their adviser requested it—give them a couple of weeks post-hearing to hand over country information or not. Depending on how much detail there is and what you have been able to give them the gist of, you can say, `I'll give you a couple of weeks to come back with any further information or any further comments on anything that has come up at the hearing.'
The hearing itself is conducted more as a formal interview rather than something quite like a court or an AAT hearing. We do not conduct them in our own hearing rooms in the kind of pseudo-court atmosphere that the AAT hearing rooms tend to have. It really is an interview room with a fairly substantial and formal desk on one side at which the applicant and the interpreter sit and the member sits on the other side. But it is a relatively small interview room in the RRT.
The adviser does not have a cross-examining role at the hearing. The most useful role for an adviser is normally assistance with providing a focused submission before and/or after the hearing. Typically, at a hearing the member will explain the purpose of the hearing, the essential elements of the convention definition and what is going to happen. As I said, they will then proceed through exploring the applicant's claims. There would normally be both open-ended and fairly specific questions. There would be opportunities for the applicant to add anything else they wish to say. Towards the end, the member would normally give an indication of the kinds of things that might be a problem or which the member is going to have to particularly focus on to satisfy themselves. If there is an adviser, the adviser will also be given an opportunity after the applicant's evidence to make an oral submission if they wish. Invariably, if they wish to make a post-hearing written submission, that is accommodated.
There is provision for an oral decision to be made at the hearing. That is rarely availed of unless it is a very clear-cut case. Typically the member will reach their final view and write up the decision over some weeks after the hearing. Once the decision has been finalised, under the present legislation the applicant is then called back for the decision to be handed down. That is a very formal procedure; there is no further discussion at that point. The member himself is not involved; it is an administrative matter handled by registry. The applicants simply come in and the one-sentence decision, following the reasons for the decision, is read out and they are given the written reasons. They do not have to attend and I think most of them do not. It is a step that was inserted several years ago. Does that give you a sense of how it works?
—Yes, thank you.
Senator WONG —Can you remind me about the process of appointment of RRT and MRT members. Those positions are advertised and people apply for them. Is the appointment made by this minister?
Mr Karas —All of the members on the tribunal now were appointed by the government.
Senator WONG —Yes, but in terms of ministerial decision, is it the immigration minister or the Attorney-General?
Mr Karas —The immigration minister appoints a selection advisory panel which interviews selected applicants after an advertisement is placed and applications are made. Certain qualifications and skills are sought in relation to the applicants and they go through an interview process where the selection advisory panel, which is appointed by the minister, interviews a number of people. Then the recommendations are made to the minister. From there I understand the minister will consider the matter and take it to cabinet, and then it goes on to the Governor-General. The appointments are made by the Governor-General.
Senator WONG —Is the selection panel constituted ad hoc or is it an appointment of people to that selection panel for a period of time?
Mr Karas —It is usually brought together at the time of an appointment round. It is usually chaired by a person from the Department of Immigration and Multicultural and Indigenous Affairs because it is a matter for appointment by the minister and government rather than the tribunal itself. I am a member of that panel, or have been for the last number of rounds, since I have been the principal member. There are also one or two other people who are usually on the selection panel who come from a particular background. One who comes to mind was a previous member of the tribunal as well.
Senator WONG —Are tribunal members appointed for five years?
Mr Karas —Three years usually, with the possibility of a renewal of appointment at the expiration of their terms.
Senator WONG —And that renewal can continue how many times?
Mr Karas —Mr Blount is an example; he has been there since 1993—since the inception of the Refugee Review Tribunal.
Senator WONG —We had evidence yesterday that was quite critical of the RRT, suggesting that there was a perception of bias and inconsistency. I am not endorsing these comments; I am simply reporting them to you. There would be those who would argue that having an appointment process entirely done by people appointed by the particular minister and renewable three-year terms instead of fixed terms would certainly create a perception that members might be more likely to want to do things that kept them on the reasonable side of the minister. Do you think it would be more appropriate to have a fixed term appointment of a longer duration to ensure the perception that members are prepared to act and judge without fear or favour?
—It has been a debate in the public arena for some time in relation to appointments and the terms of appointments. Having been appointed to the Immigration Review Tribunal for a period of five years and again for another period of five years and then to the Refugee Review Tribunal and the Migration Review Tribunal for periods of three years on each occasion, I would say—and I think I speak on behalf of most members—that the length of the term really does not enter into your mind vis-a-vis your decision making. One makes the decisions in relation to substantial justice, the merits of the case and the facts that are before you. In other words, when I come to make a decision I do not say, `Now, how is the government going to react?' or, `How is this going to impact on my appointment, reappointment or whatever?' I have a job to do. I think I professionally adapt myself to doing that. I do not think the other matters people raise from time to time are as in front of members' minds as the perception seems to be or as they are related to committees of inquiry like your own. But it has been a matter of debate.
I think most people would say that the longer the term the longer people do not have to think about reappointments or anything of that sort, but in practice I find members do not say six months out, `Look, I'm going to have to start changing the way I make decisions or the outcomes of decisions because I am going to be before the government again for reappointment.' My response to that is that members are professional. They bring their skills to the making of decisions, and the fact that their term is or is not coming up does not really enter into the job that they have to do.
Senator WONG —I appreciate that that is where you come from, Mr Karas. I am more concerned about the perception that people appear to have—and I think you have confirmed that—that a system of three-year rolling renewals is not a system which some practitioners and some advocates would see as being sufficiently separate from the interests of government. I was not so much referring to a longer term but to perhaps a fixed term—in other words, to not having the prospect of renewal. Then from the outside you would remove any incentive to—
Mr Karas —The three-year terms are fixed terms.
Senator WONG —But they are for renewal. I am suggesting that, if you had a non-renewable tenure, that would create a difference of perception.
Mr Karas —But, if you had a non-renewable tenure on the basis that people were appointed for three years, then at the end of three years you would lose all of that experience.
Senator WONG —I am suggesting a longer term.
Mr Lynch —There are a range of issues—apart from the obvious perception issue, which you have raised—which I think need to be taken account of, including management of the case load itself. We have a mix of both full-time and part-time members and, depending on the workload that is available in both tribunals, there is the capacity for the executive of the tribunals to keep people in full employment on a part-time basis—and I am talking about part-time members—for four days a week or three days a week. That is an additional consideration. It is not purely this issue of influence by government.
Senator WONG —Mr Karas, it has obviously been communicated to you before that there is this perception.
—It has been the subject of debate down the years ever since the creation of the tribunal. As I understand, it is the situation with other tribunals as well. But the three-year appointment seems to now be the norm rather than the exception with Commonwealth tribunals.
Senator WONG —Mr Blount, in answer to Senator Johnston, you went through a number of procedural measures you are taking to ensure probity—I think that was the term you used.
Mr Blount —`Consistency' was the word.
Senator WONG —Those would be things one would think should exist anyway. What has prompted you—
Mr Blount —They have existed anyway. This is not new. These are not things we have suddenly done this week.
Senator WONG —What has prompted these new measures?
Mr Blount —I am not quite sure which measures you are referring to as new. The only one that is particularly new is the way we are handling the Afghan-FPV case load, because that case load has just emerged. I was talking, for example, about the legal issues papers that are done about induction training and so on. These have been in the tribunal in one form or other pretty much from the outset. Obviously, different aspects of professional development get developed further over the years. You try to improve what you are doing, but none of these is particularly new.
Senator WONG —I turn to conflicts of interest. I assume cases are allocated to MRT and RRT members by the registry. Is that right?
Mr Lynch —There is a constitution policy in both tribunals. Essentially, in the Refugee Review Tribunal the Deputy Principal Member, through officers of the registry, allocates cases against a number of criteria, including the expertise of particular members, the priority of case loads that the Refugee Review Tribunal may have on hand—detention matters are always a priority—and a range of other considerations based on members' productivity and so forth.
Senator WONG —By the Principal Member or a principal member?
Mr Lynch —The Deputy Principal Member, Mr Blount, in association with registry staff, regularly reviews the compactus holdings of applications for review to establish whether a particular case load is not getting attention. For example, if there is a long period during which cases of a particular country are not being constituted, they are constantly revised to make sure that standards of service are maintained.
Mr Blount —We have a structured constitution policy relating both to countries and to perceived complexity or time involved in particular case loads.
Senator WONG —I assume that the criteria which you use to allocate is written down somewhere—is it?
—We have a constitution policy which we develop and renew every 12 months, which goes through issues like the number of cases. I referred at our last session to the way in which we weight various things to decide what the numbers are going to be for each member. A particular member will know at the beginning of the year, for example, that there has to be a certain number of more complex cases, less complex cases and so on. They nominate particular countries, and we work through it in a fairly systematic, structured way each year.
Senator WONG —Two questions arise out of that. Firstly, could you provide us with a copy of that constitution? Does that set out the totality of the allocation criteria or are there additional criteria set?
Mr Blount —Those are the overall criteria for the case load. Within the case load there is a category that is allocated in a more ad hoc way on a regular basis through the year, and that is of what we call priority cases, which are constituted as priorities rather than waiting in a queue. They are, for example, detention cases, Federal Court remittals, community assistance cases and torture and trauma cases, and we will also be seeking to constitute further protection visa cases as priorities. Each week we see what we have of those, and typically there might be half a dozen. We circulate them and ask members to indicate interest, then a few days later I make decisions on which members get them. If we do not have takers, we make decisions. That particular component of the flow gets constituted very quickly—within a week or so of getting the DIMIA file.
Senator WONG —The second question arises out of that and your previous answer which suggested that members can also nominate countries in respect of which they have particular expertise. So in relation to that and the priority cases there is an element of self-nomination by members.
Mr Blount —There is.
Senator WONG —How do you deal with possible perceived or actual conflicts of interest—for example, if there is a possibility, because the member is familiar with a particular community, that they may know the participants or other members of that community? Do you have any process in place to deal with perceived or actual conflicts?
Mr Blount —People should identify if they have a conflict of interest with a particular case and disqualify themselves from it. It does not arise very often in my recollection. I am not aware that we have any members doing case loads where there is a broader conflict of interest. I do not think that knowledge of a particular country is necessarily a disqualifying factor.
Senator WONG —Certainly knowledge would not be. What I was referring to was perhaps relationships between the member and certain members of the community which might lead to a perceived conflict.
—We do have a code of conduct which governs integrity issues. We would expect a member to disclose a conflict of that sort when it arose. Members generally do notify us of potential conflicts, even those where a perception may arise in somebody's mind but where there is no potential conflict—for example, a relationship with a migration adviser or some previous experience in the industry whereby they have handled a particular issue which is now before them.
Senator WONG —Could you provide us with a copy of the code of conduct. Are there any other written procedures which indicate how the tribunals handle perceived or actual conflicts of interest?
CHAIR —Is there a complaint-handling process?
Mr Lynch —As I was going to say, we have a complaints mechanism. The issue you raise is an interesting one, because I do not believe we have had complaints of conflict of interest—certainly none that I am aware of.
CHAIR —That was my next question. Perhaps you could look at whether or not you have actually had any complaints and whether or not it is possible for migration agents to request particular members—whether, when a person makes an application, it just goes into the process or whether you can request a particular member.
Mr Blount —They certainly cannot request a particular member.
Mr Karas —We try to do everything to avoid `forum shopping'.
CHAIR —I imagine you do.
Senator WONG —So, apart from the complaints process, essentially what you rely on is members either disqualifying themselves or bringing to the attention of, I suppose, the Deputy Principal Member or the Registrar a conflict of interest in respect of a case. Is that right?
Mr Karas —Yes. If one arises, the member would be obliged to bring the matter forward and say: `I should not be the member for this particular case for these reasons. Could it be reconstituted?' Usually that would be accepted if it were found to be a valid reason.
Senator WONG —I presume that it is similar to most tribunals in that, if an advocate raises a conflict of interest issue, the member themselves has to determine whether or not to disqualify themselves.
Mr Blount —Yes, but if there was a substantive matter of that sort which was not straightforward the member would no doubt discuss it with their senior member or with me.
Senator WONG —But at the end of the day it is the member's decision.
Mr Karas —Not necessarily. If there was a perception by the Deputy Principal Member or the Principal Member of a conflict of interest or a perception of a conflict of interest, it is more than likely that the case would be reconstituted.
Senator WONG —In attachment C in your confidential submission—and I will not go to the names—do you do this matching process quarterly or annually?
—Matching in relation to the additional information that was supplied?
Senator WONG —I understood that this was a matching between RRT and MRT decisions and outcomes.
Mr Lynch —No. This was the only occasion when that was done. I alluded to it last time we were before the committee. It was a matching exercise undertaken during 2001 by the former acting Principal Member.
Senator WONG —Yes, you gave evidence about this.
Mr Lynch —It is the only example I was able to identify of this sort of analysis of RRT cases by the RRT. You will note that the fourth page of that document does not show analysis undertaken. I attempted to find out why that was so and was unable to get an answer because personnel who might have been involved in that process were no longer with the tribunal or had moved on. It was an exercise that was undertaken at the time and I really do not know a great deal more than that.
Senator WONG —Are you saying to me that there is nothing other than this document which sets out a list of those RRT matters which were subsequently the subject of a positive ministerial intervention?
Mr Lynch —To my knowledge, this analysis has not been repeated.
Senator WONG —Or a similar analysis?
Mr Lynch —Or a similar analysis, no.
Senator WONG —So, if we had questions regarding particular RRT cases which were referred for 417 consideration and they are not on this list, you would not know what the outcome was? Is that how it works?
Mr Lynch —Yes. We receive a list from the department every six months, but we have not worked on those lists, because there is no value-add for us.
Senator WONG —So you have received a list from the department every six months in relation to RRT matters where the minister has intervened under 417?
Mr Lynch —Yes, that is the departmental list of what was tabled in the parliament by the minister.
Senator WONG —Which has RRT numbers?
Mr Lynch —It has departmental numbers, and this list has the matches of the tribunal numbers, with names. We have separately written to the secretary in relation to that.
CHAIR —Do you send that to the relevant tribunal member, Mr Lynch, or do you just file it?
—On this particular occasion, I do not know what happened. I think there may have been some discussion with some members about the cases. Whether all the members referred to in that list have been referred this document I do not know. It is quite likely that the last acting Principal Member would have discussed these outcomes with some or all of those members. I do not know that.
Mr Blount —I think it was possibly just circulated to members.
Senator WONG —Can we come back to this report from the department? Is it six-monthly or annual?
Mr Lynch —It is six-monthly.
Senator WONG —Does that have both the RRT number and the departmental number or just the departmental number?
Mr Lynch —Just the departmental number.
Senator WONG —So what do you then do with that list?
Mr Lynch —If action were to be taken on it similar to what was taken here, some analysis and cross-referencing on the case management system would be undertaken. There is a great deal of effort involved in that and, as I say, we just have not had the professional interest or the resources to do that.
Senator WONG —So you do not do that?
Mr Lynch —We do not do that.
Senator WONG —So that effectively means tribunal members do not know in relation to which cases the minister has intervened—
Mr Lynch —That is correct, yes.
Senator WONG —even if they have indicated in the judgment that they think this is a matter which deserves humanitarian consideration?
Mr Blount —I do not think they would necessarily put in the judgment that it deserves humanitarian consideration. They would just indicate that the issue arises but that it is not for the tribunal to address.
Senator WONG —There are judgments or decisions where there is a specific reference to the applicant, saying that the applicant should take a 417 application.
Mr Blount —Yes, but I do not think it expresses a view as to what the outcome should be, though. It flags the circumstances.
—There is an RRT file number on which I would like to know whether or not there was any action taken. If I provide you with that number, are you able to determine that from your list from the department?
Mr Lynch —Yes.
Senator WONG —I will not mention the name. It is N01/137400.
Mr Lynch —Senator, we would have to take that on notice.
Senator WONG —I appreciate that. From your previous answers, Mr Lynch, I figured that would be so.
Mr Lynch —As well as our capacity to supply the information, we are constrained by section 439 of the act, which obliges us not to disclose the particulars of a matter, even including to the houses of parliament.
Senator WONG —This case is reported.
Mr Lynch —There are some nice legal issues there as well.
Senator WONG —All I want to know is what happened on the 417 intervention. Presumably that information has also been tabled.
Mr Lynch —I am sure the department could supply that, and we will have a look at whether we are able, at law, to supply that as well.
CHAIR —If you are unable to then perhaps you could refer it to the department.
Mr Lynch —We certainly will do that, thank you.
CHAIR —Or, I suspect, it should be on that list that you have been given by the department at some point.
Mr Blount —But not without—okay.
Senator WONG —A number of advocates, both yesterday and previously, have expressed a view that the current structure, which requires a negative determination from the tribunal before one can access the minister, creates problems for certain people whose claims would always be on the basis of non-refugee grounds. In other words, they do not fall within what one might say are the narrow definitions under the refugee convention; they are arguing protection under the Convention Against Torture or on the rights of the child or the ICCPR et cetera, but they have to go through this process anyway. From your experience, how often does that occur? How often are you in the position of having to determine cases in which it may well be agreed or the facts are simply that this person would not be a refugee and their claim primarily proceeds on humanitarian grounds?
—The only barometer we have for that is the number of referrals that we would make or anecdotally where it seems during a hearing that an applicant or adviser may pursue a referral to the minister after the hearing. It is impossible for us to provide that answer in a way that would be constructive.
Mr Blount —There are certainly cases, but I do not know the number or proportion.
Mr Karas —From personal experience and anecdotally, I can recall only a handful of cases in the 15 years or thereabouts that I have been associated with the tribunals where someone has specifically said, `No, we don't meet the criteria; we're only doing it to action an approach to the minister for the exercise of a discretion.'
Senator WONG —Mr Lynch, coming back to what you are thinking of providing us, obviously there is a capacity to provide that evidence in camera—as per attachment C.
Mr Lynch —I think the legislation even contemplates the provision of that information in camera—it is not permissible—so we will take that on notice. We are very happy to supply the information if we are able to.
CHAIR —I understood that to be the case: the provision does contemplate—
Mr Lynch —Expressly so.
CHAIR —In response to your answer to Senator Wong, an applicant would be unlikely to say that they are filing for the purposes of seeking ministerial discretion on humanitarian grounds because they may be able to convince you that they do have a sufficient case or that they do fall within the refugee convention or protocol. They would start out with that—although it may be a slim hope—and the real hope is to follow through the system to the ministerial discretion regime.
Mr Blount —I think that may well be so. It would be very rare that that would be made explicit and, if it is not made explicit, one cannot really presume to know what they have in mind and whether they really have expectations or not.
CHAIR —But over the last four years the number of cases that you have dealt with has risen, has it not?
Mr Karas —In seeking humanitarian intervention?
CHAIR —No, in RRT cases in absolute terms.
Mr Blount —Yes, very much so.
CHAIR —I did not think it was a trick question.
—It has been rising. Having said that, there has been a fall-off in lodgments over the last 12 months, which is reflected in our figures—not a fall-off in the number of decisions we have made, but a distinct fall-off over the last 12 months or so in lodgments, which has greatly reduced the number of cases at hand. We expect that to be offset very soon as the former TPV applicants come through for review.
CHAIR —Was that what you were referring to earlier in respect of the Afghans?
Mr Blount —Yes. I understand from DIMIA that the proportion of that caseload who are Afghans is about 40 per cent. Whether that is represented in the numbers that come through to us at review, we will see.
CHAIR —That is 40 per cent of the total number potentially could end up—
Mr Blount —As I understand it, of the caseload that DIMIA is looking to make decisions about with regard to further protection visas, something of the order of 40 per cent are Afghans. We do not know what proportion of those will find themselves in a situation where they will need to or want to seek review, but the percentage is probably a fair indication.
CHAIR —So there is no way we can ascertain the amount of work that is referred to you because of ministerial discretion? It is obviously of interest to the committee to understand how your workload is complicated by the use of ministerial discretion after an RRT decision.
Mr Blount —That part of the case load—the former temporary protection visa holders—would all feel that they have a good case for refugee status, given that they have received temporary protection visas on that basis previously. I would expect that part of the case load to be more motivated, in the sense of being convinced of their case, rather than having some of the elements we sometimes see in the more general case load.
Senator SANTORO —I want to explore a bit more the process that sees the tribunals include within their decisions suggestions or issues relating to humanitarian considerations which may then prompt the department to refer them to the minister. You have been through it briefly, but could you take the committee again through the process leading to the inclusion of references to humanitarian issues which may bear further consideration. Would you also tell us how you come to conclude that there are humanitarian considerations worthy of note.
Mr Blount —The tribunal does not purport to undertake a systematic examination of all cases against humanitarian criteria. That is not part of our jurisdiction or of a policy that is entrusted to us, and it is not a matter for which we are resourced separately from our statutory task. However, these matters present themselves in a number of cases. They generally present themselves because the applicant or their adviser either specifically refers to them and seeks humanitarian consideration if they are unsuccessful in obtaining a protection visa or presents factual circumstances as part of their claims or in describing their situation which are clearly non-convention but might attract some consideration for other reasons. The normal procedure when something like that has presented itself is that the member will ensure that the claim that has been made or the factual circumstance that has arisen is recorded in the decision. They would normally go on to say something to the effect of: `However, the tribunal can only address matters arising in relation to the convention. Non-convention or humanitarian considerations are a matter solely for the minister.' That is what happens in reaching the decision.
If the member feels there is something that someone should look at further with a proper examination against the guidelines, they would not undertake that themselves but would tick a box on our internal finalisation form so that a pro-forma letter is generated which goes from the district registrar to the state manager of DIMIA. That is a very formal, brief correspondence which says something like: `Please find attached a copy of X decision. This application may raise humanitarian claims. Please note that the tribunal has no power to consider such claims.' It is really flagging the matter. I do not think that in most instances the member would have sat down with the guidelines and done some kind of preliminary pre-screening examination against the guidelines. They have simply noted that something has been raised. Whether it is has arisen because they have drawn a conclusion from what is in front of them or because it has been put in a specific submission, something has arisen which appears to be something that should be flagged for attention to be looked at in the normal process.
Senator SANTORO —So the process really is quite informal and relatively unstructured.
Mr Blount —It is. We would probably do it differently if we had a specific mandate or it were part of a mandated task to do this but, as I explained, it is not part of our present jurisdiction. There has never been a direction or policy from the government that we should examine all the cases in front of us for that. There is simply a means whereby, if the matter does raise itself, there is a mechanism by which a member can flag it if they wish to do so.
Senator SANTORO —I want to develop that point that you just touched on. A number of submissions to this inquiry have in fact suggested that there should be a more formal role, specifically mandated, for the two tribunals in terms of the assessment of humanitarian or compassionate reasons. How would the tribunal feel about that possibility being discussed in a very serious way?
Mr Blount —That is essentially a matter for the parliament or the government to determine. We undertake whatever jurisdiction or task that we are entrusted with.
Senator SANTORO —Putting the policy consideration aside, which I think you rightly say is the province of government to determine, what are the technical issues that would come to mind for members of the tribunals if that additional requirement was put in place in terms of your jurisdiction? What would you see as being some of the more technical impacts in terms of the way the tribunals operate?
Mr Blount —Effectively, there would have to be a two-part process or decision in that members would then be undertaking a subsequent consideration, a second consideration, formally against the detailed guidelines in a way that is not undertaken at the moment. There would be implications in terms of the training for that, the time that would be involved and how we would structure that in decisions or as some kind of formal post decision. There would be implications we would have to work through if we were formally entrusted with that task and, inevitably, with resource implications.
—I was going to add that in my estimation there would be massive resource implications if the tribunals were given the authority to receive applications based on compassionate, unique, compelling or humanitarian type grounds for a visa of that description. It would add considerably to our workload and I would anticipate a very substantial number of additional applications a year. I would imagine the flow-on effect to the courts would be very onerous—much more so than the current situation with the courts' backlogs with migration matters.
Senator SANTORO —You have obviously stated one of the big disadvantages according to you, at least, but are there any advantages that you can see to the system as a whole by going down the line that has been suggested by any of the submissions? That is not to suggest that you adopt that extra—
Mr Lynch —It is returning, I guess, to a policy discussion, which we are loath to enter. It returns to the wide discretions of earlier days when compassionate and compelling or humanitarian grounds were a criterion in the act for consideration by primary and review decision makers. As I understand the structure of the program and the regulatory scheme that applies at the moment, many of the considerations that are considered compassionate or humanitarian are essentially catered for in the range of visa classes that exist, including the protection visa.
Mr Karas —The scheme which the legislation and regulations was to provide prescribed circumstances and criteria for tribunals to consider in relation to whether a person satisfied the requirements for the grant of a visa or otherwise, and the tribunal's role is one of administrative review. As a result of that, we stand in the shoes—so to speak—of the original decision maker and can exercise the powers as they reside in that person. Under the legislation, our role is specifically geared towards providing a final merits review in relation to the criteria, which we have to consider for the particular visa class that is before us. The discretion reposed in the tribunal is that allowed by the legislation. What is being suggested here is perhaps an open-ended discretion for people to take into account compassionate, humanitarian and unique circumstances which, unless defined by legislation, would again mean going to a system—which presently is not the case in relation to the review process provided by the legislation for the tribunals now.
Senator SANTORO —What part of the act enables you to raise issues of humanitarian consideration when they are within your decisions?
Mr Karas —We are specifically prohibited, so to speak; there is no visa that can be granted by the tribunal on humanitarian grounds as such. In a situation where the tribunal member may feel—or it has been put to them—that a matter needs to be considered by the minister under the power residing in him under section 351 or 457, the tribunals basically only provide a mechanism for a member to point that out or to raise that. That is as far as the member goes. It is not that the member is able to—and we do not encourage members to—extract evidence other than that which is required for the function they are doing; namely, to see whether the person is able to meet the criteria for the visa applied for. It is not the function for the member to go on another track and see whether there are humanitarian, compassionate or other unique factors in relation to that particular case, unless of course they are needed in relation to the function of seeing whether or not the criteria for the visa that is applied for is satisfied.
CHAIR —A couple of issues arise out of that. The number of pro-forma letters that are generated—are they available by case? Is there any cross-referencing within the number of cases where intervention is then granted?
—On the RRT, after the decision has been made, as John has indicated, a member ticks a box if he thinks a case has raised humanitarian or compassionate considerations. The registry then sends a pro-forma letter with the decision when it sends it to the department. From there, I understand that the department's investigation unit—
CHAIR —The ministerial intervention unit—
Mr Karas —Yes, the ministerial intervention unit has a look at it and from there on it is a matter for them and the minister. What comes back to the tribunal, as has also been indicated by John, is a six-monthly statement which is tabled in parliament. As I referred to once before, it may be that even though the member ticks off a particular case—say, in the way that we have indicated in 2001—the six-month report that comes back may not necessarily include the outcome of that case. We really do not know when—unless we do the crosschecking that John has indicated needs to be done—to find out if in fact the decision in relation to that has been made.
CHAIR —While you say that, though, unless I am missing something it seems pointless. You say you provide them with a pro forma tick box. In my mind, if I were the tribunal member and were to tick a box, I would obviously fill it out with a view. You would like to know, at some point, whether that view was accepted or what happened to that particular case, given that you probably sat across the table and spoke to the person. You would also like some way of understanding the overall scheme—of understanding whether or not that pro forma tick box is worth the tick in the first place, anyway.
Senator WONG —It is not very onerous; it is just a tick.
CHAIR —I know it is not very onerous. And then of course there are those that the tribunal member missed, for argument's sake, which then are approved notwithstanding that they did not fill out or tick a box. There is also that issue—that now I understand—that all tribunal decisions are referred to the ministerial intervention unit. If that is the case, you now do not need to tick the box in any event, as I understand it. I will clarify that with the department, but my recollection is that the ministerial intervention unit looks at all the RRT decisions.
Mr Blount —My understanding is that the only difference it makes is that it would then go forward by individual submission rather than on a schedule. The department has possibly already elaborated that distinction or could do so—that involves its processes. But, in lining up what has been referred with outcomes, one also has to bear in mind that, as the Principal Member has said, the member is only going on such evidence as has emerged in relation to the refugee application. They have not pursued avenues which might have been relevant to developing whether or not something meets the humanitarian guidelines. If something has been mentioned in relation to that, they have not checked the evidence or whether the assertion of, perhaps, some relationship or something is accurate or not. They have only pursued the evidence in relation to those matters on which they have to make their formal decision. Conversely, at the stage at which these matters might be looked at in more detail by the department against humanitarian guidelines, other submissions and information might be put to the department in that context which simply were not relevant to put to the tribunal in its earlier context. So I am not sure that one can necessarily draw any simple conclusion about the way they might line up, because different views have been taken against different criteria on, perhaps, different evidence.
—The ticking of the box is not making a case for the applicant. That is not the role of the tribunal or the tribunal member. Subsequent to that one would expect that if, in fact, the applicant thought that he or she had humanitarian, compassionate or other grounds then that would be the subject of a submission, either by them or by their adviser on their behalf, and the time that they would spend in relation to that submission and the content that they would be wanting to put forward would be a matter for them. It would not be a matter for the tribunal member to extrapolate and say, `Here's the case for this particular applicant,' as such. The member only makes the decision in relation to the matter that is before him or her and then, if the applicant does want to access the approach to the minister under the provisions of the act, it is a matter for the applicant or their adviser to make the case for that submission, not for the tribunal or its members.
CHAIR —No, you explained it quite well. That is as I understood it—that it was a flagging process—but it just amazes me why you do it, when you then go to such an extraordinary length to tell me why it is not relevant in any determinative process in respect of humanitarian intervention by the minister. Maybe there is a peculiar reason you know that I do not.
Mr Lynch —There is value in identifying the humanitarian issues which the member considers are worth noting and which comply with the ministerial guidelines. There is definitely value in doing that for the applicant and for the integrity of our whole program.
CHAIR —So does the member use the ministerial guidelines, then?
Mr Lynch —Members are aware of those guidelines, but—through the analysis that Mr Blount has given—they would not sit and compare the facts closely against those guidelines with every case. With experience and professional development, members understand—
Senator SANTORO —And the exercise of your heart, perhaps.
Mr Lynch —Exactly; there is that element. Where issues are brought to or come to the notice of the member, they are identified. That is part of this process, and it is a valuable process. Where I think we may differ a little is on the question of whether, at the end of the parliamentary process—or the process where the minister tables his or her decisions—there is value add in the tribunal understanding which way the minister went. Our answer is that we are functus officio, we do not have the resources to explore that and what value—
CHAIR —There is an argument about whether you are functus anyway.
Mr Lynch —I have not heard that one.
CHAIR —The High Court case involving Bhardwaj.
Mr Lynch —Once the decision is handed down on—
CHAIR —But you are administrative—
—we are functus, as I understand the position. We do not have an ongoing capacity to review decisions once they have been handed down. I am pretty confident that is the correct legal position.
CHAIR —Have you read the August legal briefing by the Attorney-General in respect of Bhardwaj's case? It is a recent case decided in the High Court in respect of jurisdictional error.
Mr Lynch —I have seen the Australian Government Solicitor's advice on that.
CHAIR —It does argue about whether or not you are functus, but I guess that is not an argument for today. I do not think it is that clear. I know you argue strongly that it is, but I do not think it is.
Mr Karas —As we indicated at our first appearance before the inquiry, I emphasise that the role of the tribunal in relation to the minister exercising his or her discretion is a very limited and indirect one. The tribunal as such has no power in respect of the exercise of the discretion under sections 351 and 417 of the act. Because of the fact that it is a limited and indirect one, as indicated by John and me, we only really provide a mechanism for a tribunal member, if in fact they feel it is a matter on which they want to tick the box, to enable them to do that.
CHAIR —Perhaps you could provide the committee with a list of those boxes that have been ticked, so to speak, in the last three years.
Mr Blount —We have supplied those.
Senator SANTORO —Was that the figure of 929?
Mr Lynch —Yes.
CHAIR —I see; thank you. To clarify then: you do not deal with the ICCPR or CAT conventions in any determinative process; that is outside your jurisdictional area.
Mr Blount —Yes.
Mr Karas —Yes.
Senator HUMPHRIES —Following from that last question, is there any reason why the Migration Act could not be structured so as to require the tribunals to consider matters under conventions like CAT and CRC and things like that?
Mr Karas —Again, it would be a matter for the government. It is a policy decision as to the roles and functions of the tribunal. Up until now, the Refugee Review Tribunal has specifically dealt with the conventions and the protocols in relation to those and the legislation that deals with whether a person meets Australia's protection obligations under those.
—Why is it that the RRT does have a specific jurisdiction based on the convention on refugees but does not have any link with those other conventions such as the International Covenant on Civil and Political Rights, the CAT or CRC? Is there any reason for that?
Mr Blount —I am not sure we are in a position to answer that. I am not sure what was in the mind of the government or the parliament of the day at the time. A number of elements of those conventions are subsumed in the refugee convention, and many things arising under those would amount to persecution. The distinguishing element we apply is the convention reason for the feared harm. If you were applying those as well, having regard to those matters without a convention reason being involved, you would be doing something other than determining refugee status—unless the parliament chose to define refugee status otherwise than at present for the purposes of the exercise.
Mr Lynch —I think the protection visa scheme—in the context of the broader migration scheme set out in the act with the other visa classes that are available, including the ministerial discretionary powers—was designed with the practices that we do have and the ministerial guidelines that do exist. The issues you were talking about were designed to be handled or managed in the way that they currently are. The whole scheme has to be looked at. I think those torture and ICCPR child issues were intended to be swept up in the overall scheme.
Senator HUMPHRIES —Some of the other submissions, specifically the Human Rights and Equal Opportunity Commission's submission, make the point that the onus for addressing those particular conventions falls onto ministerial discretion rather than the tribunals. I am just exploring why it could not be structured so it was for the tribunals to consider that. Do you think there are any resource implications if the criteria that you use were widened to pick up those conventions as well as the refugee convention?
Mr Blount —Do you mean as an additional judgment as to whether they met that? Any additional judgment, the same as we were talking about before with a more general discretion, puts a second part into the process against different criteria. That must inevitably have implications for professional development, time, resources and developing the expertise and so on in relation to those other particular matters.
Senator JOHNSTON —Given what you have said so far, that would be relatively minimal. The members are already familiar with the MSI and the broad discretionary indicia that the minister is looking at. If you were going to change it, surely the most efficient and best way to do so would be to simply attempt to incorporate the MSI ground into the review tribunal's jurisdiction.
Mr Blount —I understood Senator Humphries's question to go beyond that and relate to some of these other conventions as well as, or instead of, the more general humanitarian consideration.
Senator JOHNSTON —That also applies. I think the members are very familiar, are they not? It strikes me that the members are uniquely qualified in this area. They know what is going on in other countries, they know the obligations and they know the treaties and conventions that apply. It seems to me that they are a very extraordinary and unique group of people in this area. Is that not the case?
—That is very flattering, but I think that, whenever anything additional is added that is not part of the main assessment at the moment, there would inevitably be a need to look at that and the jurisprudence surrounding it in additional detail. That is only one aspect. That would not affect the fact that there is time involved in having another process wrapped up within the process to address additional criteria—whatever those are. With regard to people's personal capacity to do it, I am sure that could be done, but it is a matter of policy as to what the scheme should be and the provision of the additional resources that might be involved to do that.
Senator JOHNSTON —Doesn't it equate to the difference between, say, Iraq and Afghanistan and Afghanistan and, let's say, Kenya or Ethiopia? You have to understand what is going on on the ground in those countries to understand what the applicants are talking about. Just to shift your jurisdictional basis is a bit akin to that, isn't it? I would have thought that you are looking at the same sort of development.
Mr Blount —I think it is a bit more complex than that. I guess we would not know until we suck it and see.
Senator HUMPHRIES —Can I ask about the cost of proceedings before the tribunals? Who is actually bearing the cost of these applications? Is it entirely the applicants? You might not be able to answer this question. What public subsidies are going into those applications in the form of legal aid, or something akin to legal aid? Are there private or non-government organisations that are subsidising the applications?
Mr Lynch —I am not able to answer what levels of assistance applicants are able to access through legal aid and so on, but with regard to the costs of running the tribunals—
Senator HUMPHRIES —No, I am not referring to the cost of running tribunals, I am talking about the costs of those people who coming before the tribunals—that is, the party costs.
Mr Blount —I think some people have received assistance from non-government bodies of various sorts. I do not think we could quantify that. Some of those bodies, like RACS, may receive government assistance to provide that assistance—DIMIA would have information on that. I understand there has been government assistance to provide legal representation for people in detention, but we are not involved in any of that. We are conscious that people in that category turn up with legal representation and so on, but I do not think we have information about the details and the costs of it.
Senator HUMPHRIES —Would it be fair to say that the majority of applicants who appear before you are represented at their own expense rather than through some other form of support?
Mr Blount —That would probably be the case. Anecdotally one hears that representation, for those who are represented—and many are not, but the majority do have an adviser of record—involves the payment of sometimes substantial sums. As far as I am aware, where it involves many of these migration agents and so on it is not publicly funded.
Senator SHERRY —Are only migration agents or lawyers, who might not be migration agents, allowed to appear before the tribunals on behalf of individuals?
—Under the legislation, the only people who can give immigration advice are registered migration agents.
Senator SHERRY —I understand that, but do the tribunals themselves have the same legal position?
Mr Blount —The only exception is that people are sometimes accompanied to a hearing by a family member or a friend—perhaps a social worker from a community centre they have been associated with—but that person is normally there simply for support. They may sometimes have something to say at the end about character but they certainly do not take the role of an adviser in the sense of a migration agent.
Senator SHERRY —I want to come back to an issue on which there has been a fair amount of discussion already: the fact that members of the tribunals may, and sometimes do, refer to what they regard as compassionate or humanitarian elements in certain cases. Listening to Mr Karas's response, it struck me that that is a somewhat ad hoc approach. It seems to me that it often comes down to the approach of the individual tribunal member to identify humanitarian or compassionate grounds and, if they identify them, to refer to them in some way.
Mr Blount —I think that is true as far as it goes. The tribunal does not undertake a systematic review of humanitarian considerations.
Senator SHERRY —I understand that. I have been critical of tribunal members, but at the end of the day you are gathering evidence and—as I think Mr Karas said—it is not the function of a member to seek humanitarian grounds. However, in the course of gathering evidence some humanitarian grounds might be identified and referred to. Shouldn't we have a level playing field for the identification of such issues? Is it fair that an applicant before a tribunal may accidentally have humanitarian or compassionate grounds identified which then, depending on the particular inclination of the tribunal member, may or may not be referred to?
Mr Blount —If something is raised in the submissions or claims of an applicant or is a significant factual circumstance that arises before the tribunal, that fact will invariably be recorded in the decision in the factual matrix that is set out.
Senator SHERRY —I understand that. You say `invariably', but it is not. There is no requirement, even if humanitarian or compassionate grounds are identified, to identify them, is there? Sometimes they may not be.
Mr Blount —In the course of setting out people's claims and matters of concern, non-convention matters that they raise at the hearing are recorded because you need to be able to say: `They were concerned about the continuity of their schooling,' or, `They have two young foster children here,' or whatever. You might then say: `However, this is not something that goes to the convention reasons,' but you have to address it in order to determine that it does not go to a convention reason. If they have raised a matter of concern as the reason they do not want to return—a question that is invariably asked is: what is your concern will happen if you return, why can't you return?—that is recorded in the decision. It might not take them anywhere, but it is recorded.
—The safety net provided—if I could use that expression—is what Senator Ludwig alluded to earlier: the ministerial intervention unit of the department, which reads all of the decisions. If the member does not feel inclined to specifically identify or report on those, and the ministerial intervention unit, in looking at the decision, feels that—because of the reference to the evidence provided—there are humanitarian or other considerations, that goes forward to the minister.
Senator SHERRY —It seems to me that the extent to which that is reported and explored is to some extent up to the concern and interest of an individual tribunal member. One tribunal member might draw out further material on that; another tribunal member may not.
Mr Karas —True, on the basis that the members are there to review the application that is before them, and usually that is in relation to criteria for a specific visa application.
Senator SHERRY —I am not being critical of tribunal members; I understand that they have certain criteria they have to meet. I am just concerned about what appears to be in this area a somewhat ad hoc approach rather than a consistent approach. It seems to me that you have an ad hoc approach that has emerged that depends on the individual circumstances and the individual predilections of tribunal members.
Mr Karas —The consistency is related to the process which is provided by the tribunal for the identification of the particular matters that we are discussing. At the same time, it does depend on the evidence that is put forward as to whether there is an identification of those particular items or issues that need to be considered in the way that we were discussing.
Senator SHERRY —But it would also depend, wouldn't it, on individual tribunal members. If it was referred to in passing and an individual tribunal member then chose to explore that material somewhat deeper, that would really be their call, wouldn't it?
Mr Karas —Yes, it would be, on the basis that they are charged with the function of providing the review that we have spoken of before.
Senator SHERRY —Finally, what is the approximate split of full-time and part-time members?
Mr Lynch —We did supply that material in the correspondence of 15 October. In the MRT, there are a total of 68 members. Fifty-four of those are part-time and nine are full-time, and there are four senior members and the principal member, of course. In the RRT there are 81 members. Forty-two of those are part-time and 33 are full-time, and there are four senior members, a deputy principal member and a principal member.
Senator SHERRY —Sorry, I did not read that. What is the basis of the remuneration of part-time members? I assume that the remuneration is set by the Remuneration Tribunal. Is it a per case or a per hour rate for the part-time members?
Mr Karas —It is a per diem fee of $520.
—It is calculated on the base remuneration of the full-time members, with a loading.
Senator SHERRY —Are all members of the tribunal members of the Commonwealth Superannuation Scheme?
Mr Blount —I shouldn't think so.
Mr Karas —I am not sure. It varies, I think. CSS, PSS and perhaps some private—
Mr Blount —Very few of us have the opportunity to still belong to the CSS.
Senator SHERRY —I thought that given your service, Mr Blount, you might.
Mr Blount —I never change funds.
Senator SHERRY —Very wise.
Mr Blount —I think full-time members are able to join the PSS.
Mr Lynch —And part-time members would have a choice, and they do exercise that choice in relation to their employment with the tribunals, as well as in relation to other employment.
Senator SHERRY —You mentioned the senior members: are they in the CSS, the PSS or the judges superannuation fund?
Mr Karas —It would not be the judges superannuation fund. We are not judges.
Senator SHERRY —I understand that, but there are some members of the industrial commission who are members of the judges superannuation fund and others who are not.
Mr Karas —They must be more fortunate than us.
Mr Blount —The principal member, the deputy principal and senior members only have access to the same ones.
Mr Karas —PSS and CSS.
CHAIR —Senator Sherry should declare his interest in superannuation.
Mr Blount —We all have an interest in superannuation.
Mr Lynch —On declarations of interests, if I could add some additional information to Senator Wong's earlier question. Sections 402 and 467 require disclosure of a conflict. That includes whether the member has an interest:
... pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that review.
The code is underpinned by that.
CHAIR —Thank you.
Mr Karas —I wanted to add in relation to Senator Wong's question that the member must declare if they have a conflict of interest and then it is a matter for the principal member to decide.
Senator WONG —I would like to go back to the confidential aspect of your submission in attachment C. Just to clarify, are those cases in respect of which the minister has granted a visa pursuant to section 417?
Mr Lynch —That is correct.
Senator WONG —Then can you explain to me why one of the cases on the first page identifies the RRT outcome as `withdrawn'. I understood that the minister can only exercise 417 after the tribunal has made a decision. If the matter was withdrawn, how was the minister's jurisdiction enlivened?
Mr Lynch —Can you direct me to that?
Senator WONG —It is the fourth one on the first page. The RRT reference is N9610864.
Mr Lynch —I will have to take it on notice. There may be some error in double entries or it could be a simple explanation. I would rather not hazard a particular view on that.
CHAIR —Given that it is an in camera matter, I am sure you can take it on notice. If it is an in camera answer then you can provide it that way or if it is not—
Mr Lynch —It has been suggested there may have been an earlier tribunal decision in relation to that. There are a number of possible explanations.
Senator WONG —How could you have an earlier decision and then a subsequent further action?
Mr Blount —The one withdrawn might have been a second application before the present bar was in place.
Senator WONG —If you could let us know. Finally, I was looking at your supplementary submission and attachment B, where you have given us a copy of the generic submissions received from DIMIA. These are country specific submissions which set out DIMIA's views or analysis of the situation in particular countries. Obviously, this is of relevance for determination of, for example, refugee status. I assume from the note here that these are taken into account by members—
Senator WONG —where relevant. There is obviously a reasonable amount of opinion in these submissions. If you look at the entry for China, it says:
Comprises argument based on country information ... on the authorities attitude to followers of Falun Gong ...
What if the applicant's evidence about what might happen to them if they go back is significantly different to DIMIA's opinion? Do you have another source of information you can rely on?
Mr Blount —We have a range of sources of information. I should make it quite clear that the piece of information on, for example, a country like China would be one piece of information among a host of information we have directly and indirectly on our internal system. This is not simply one document that people refer to. It is one among many. It is given no privileged position or weight among the other information that is before people. That caveat in the box at the top is what appears on our internal web site with the lists of and the links to the submissions. That is what we say to members. We say that the relevance will depend upon the facts and issues of the review and that the weight to be attached is a matter for the presiding member to determine in the context of the review—that is, in the context of their view of the legal issues and of the applicable definition out of all the other country information. If you went to the China web site, that would appear among a number of other documents and sources.
Senator WONG —Can I draw your attention to the entry in relation to Iraq. It is headed `Guidelines for Processing of Protection Visa Applications in light of Armed Conflict in Iraq—28 April 2003'.
Mr Blount —Yes. Those are guidelines for primary decision makers. They have given us a copy of those for our information and asked us to give them weight. They are not guidelines telling us what to do.
Senator WONG —It says:
... argues in light of international armed conflict in Iraq, decisions in cases dependent upon country information should be deferred until the country situation has settled and reliable country information is available.
That is a reasonably contentious view.
Mr Blount —It is.
Senator WONG —It would be easy to find a refugee advocate who would argue that that is not an appropriate way for the tribunal to approach determining whether or not an Iraqi is a refugee.
Mr Blount —I would like to say two things. First of all, there is an argument that you should not finalise a case where the situation is changing and further information may be imminently available. I think strictures on that arose from one of the earlier Cambodian Federal Court cases back in the early nineties—
—I understood the war was over.
Mr Blount —before the onset of this tribunal. In relation to that particular matter, we had separately a couple of months before this briefly circulated all members providing broadly consistent advice on our own behalf—namely noting that the situation was a changing one, that members should bear in mind whether they had the appropriate country information if the situation was changing, depending on what the particular claims were, but that this was a matter for each individual member to determine in light of the particular claims they had in front of them.
Senator WONG —You say these are guidelines to primary decision makers.
Mr Blount —I was in fact confusing that with the last one—the guidelines on making protection obligation assessments, the FPV one. That is the one for primary decision makers which we were given a copy of.
Senator WONG —Would you agree that the paragraph I have referred you to is probably more appropriately constructed as DIMIA's argument about what you should be doing than as a reasonably balanced submission about the state of the country?
Mr Blount —They are entitled to give us submissions in whatever form they like that is consistent with section 423(2). What weight the individual members give them and what they do with them is another question, but they are entitled to put the submissions. We receive them and we circulate them. We always draw the attention of members to the fact that the weight is a matter for them to determine in the context of a particular case, and that is reflected in the generic advice to members that sits at the head of this list.
Senator WONG —But, as a matter of practicality, how is an Iraqi refugee applicant going to have the resources to provide country specific information so as to counter the weight of a submission such as this from DIMIA?
Mr Blount —This submission does not contain specific country information. It simply puts a proposition that the situation is changing and that, in appropriate cases, it might be better to wait for—
Senator WONG —It does not say `appropriate cases'; it is a blanket.
Mr Blount —It says `in cases dependent upon country information'.
Senator WONG —That would be all Iraqi applicants!
—But, as I have explained, they are entitled to put whatever submission they wish. The advice that we had previously provided to members was simply that, depending upon what particular information was relevant to the case they had in front of them, they should determine whether they should go ahead or leave them. I should say that, at the time we circulated that in April, there were probably only half a dozen Iraqi cases before members. Most Iraqi cases are awaiting decision at the primary stage at the moment. There were only half a dozen cases before members, and I think all of those have been determined in the meantime, because we also do not encourage members to defer things indefinitely.
Senator WONG —Does the applicant or their representatives get a copy of this information?
Mr Blount —If there is country information on which the tribunal would rely and their decision is adverse, it would be put to the applicant.
Senator WONG —But that is up to the tribunal member.
Mr Blount —It is part of our practice directions.
Senator WONG —But this document itself is not available publicly, is it?
Mr Blount —That particular document does not contain country information. It puts an argument about proceeding or not proceeding.
Senator WONG —But, if that is in the decision maker's mind—all I am trying to clarify is whether that is something that you distribute to applicants or is it—
Mr Lynch —Under the act, Senator, we have an obligation to supply any material that we might rely on which might form part of the reasons for the decision. So if there is a—
Senator WONG —Before the decision is made?
Mr Karas —Yes.
Mr Lynch —Yes. We have mechanisms to do that in both tribunals by formal notice but also through the hearing process. If any information is to be relied on that is adverse to an applicant and which will form part of the reasons for decision, that information needs, under the statute but also generally for procedural fairness reasons, to be provided. Post hearing submissions can also be received and correspondence between the member, the applicant and the adviser often occurs to clarify issues or, where new country information is available, that is frequently passed to the applicant for comment.
Senator WONG —Do you think the perceptions that we referred to at the commencement of evidence of some advocates and some people that the tribunal is not as impartial as they would like—as I say, I am communicating that, not endorsing it—are assisted or fuelled to some extent by the tribunal taking these sorts of submissions from DIMIA, which do run a very particular argument about how the tribunal should approach a matter?
—The act enables the secretary of the department to make submissions to present views and information to the tribunal to aid it in the conduct of an application for review. That is part of the process. We have this legislative scheme, and that is one way to get information to the tribunal that is relevant. The process is a fair one because the tribunal is required to share information which is potentially adverse and which will form part of the reasons for decision. We have judicial court scrutiny to ensure that happens, and we have a high percentage of cases where there is representation by advisers who make submissions—of equal value to DIMIA submissions—to the tribunal. I do not think I can add much more to that perception issue.
Senator SANTORO —Following up on some of the questioning from Senator Wong—and, in asking this question, I am not suggesting that applicants before your tribunal should not be required to make submissions in relation to country specific information—last time you appeared before us, didn't you inform us that you have a very sophisticated research capacity which provides you with some very detailed, specific and valuable country specific information?
Mr Lynch —That is correct. It affords us the opportunity to maintain an independent or objective view on issues where others may differ on country information or other circumstances.
Senator SANTORO —Would it be fair to ask you—and I am not trying to lead you but to establish whether there is a situation that exists—that, even if a refugee or somebody who is before you has not got the sophistication of language or the capacity to advocate directly before you, members of the tribunals would be pretty switched on in terms of the bulk of the relevant country specific information, particularly in relation to a country like Iraq, which is top of mind, top of consideration and controversial in the public domain? Would it be fair to say that? I was listening to Senator Wong and I want to be straight up about this. Would somebody who cannot put country specific information directly before you be at that much of a disadvantage or at any disadvantage at all?
Mr Blount —Members who are dealing with a particular case load or indeed a particular case would access a wide range of country information from research, and they would be familiar with that information if they had been doing that case load on an ongoing basis. They would have a very good understanding of that. In terms of country information and the general situation, we do not apply a burden of proof in the sense that we sit back and say, `It is up to you to provide information about the country.' We have information about the country; if it is helpful to the applicant, it is helpful to the applicant. If it is adverse, we will put the substance of that to them for their comment. But very often, when we were doing case loads like the Afghan detention cases 18 months or two years back, the bulk of the country information was indeed favourable to the applicants, and that was reflected in the approval rates.
Senator SANTORO —If you had an applicant before you who was wanting to give you specific information about circumstances in their alleged country of origin and there was some difficulty in putting forward the information from their perspective, what is the process? Can the committee adjourn? Can the tribunal adjourn; can they ask for time? Can interpreters get involved? Can information be gathered in a more relaxed manner than exists at a tribunal and then be presented to you subsequently?
Mr Blount —Normally they will have put stuff to us before the hearing. But if at the hearing they say that such and such happened and we say, `We haven't seen any evidence of that,' and they say, `I've seen a report that I can produce. If you give me a couple of weeks we can provide this,' we would always accede to that request. It is quite common that we give applicants and advisers if they request it—or sometimes it is on our initiative—two or three weeks post hearing to provide further comments or material.
—So in terms of an applicant who may have language or other cultural challenges to overcome, as members of the tribunal you are satisfied that the process is quite sensitive to any real or perceived difficulties that they may be experiencing?
Mr Blount —That is certainly something that is in our minds and that we include in our training for members.
CHAIR —Thank you Mr Blount, Mr Lynch and Mr Karas. Your information before the committee today has been most helpful in our deliberations. I understand you have taken a number of questions on notice. You can liaise with the secretariat about the return date—as soon as you are able to give them would be most helpful.
Proceedings suspended from 10.50 a.m. to 11.08 a.m.