SENATE LEGAL AND CONSTITUTIONAL AFFAIRS COMMITTEE
INQUIRY INTO THE MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006

OPENING STATEMENT

GRAEME INNES

HUMAN RIGHTS COMMISSIONER
APPEARING FOR THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

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Thank you for the opportunity to appear on behalf of the Human Rights and Equal Opportunity Commission to give evidence to this Inquiry.

The Bill should not be passed

The Bill puts efficiency above fairness and justice. It should not be passed.

The changes may or may not improve the efficiency of tribunal processes.  However, it is more than likely that they will result in an unfair process for determining refugee and migration claims.

An unfair process breaches the right to a fair hearing.  But worst of all, it has the potential to lead to incorrect decisions and the refoulement of asylum seekers.

When such decisions can mean the difference between life and death, no amount of efficiency justifies a defective process.

The Bill may not improve efficiency

The Bill may not lead to efficiency because it opens up new avenues of legal challenge.  Giving oral reasons and responses may mean that the judicial review process drags out: for example, when disputes arise about whatinformation was put to the applicant or how much the applicant understood.

The process may be unfair

Even if the Bill does improve efficiency, it is likely to create an unfair process.  In particular, the Bill’s reliance on oral communication in migration and refugee cases is unfair.  This is because there is a grave danger that an applicant may not fully understand the meaning or significance of what they are being told, or what they are responding to.

Even where an applicant does understand the case against them, the changes mean that they may not have the chance to fully or adequately put their case before the Tribunal.

Language and cultural barriers can significantly impact oral communication. Interpreters are used in 90% of hearings. Accordingly, misunderstandings, incorrect translations and conflicts of interest are not uncommon.

Many applicants are unrepresented.  Under the changes, such applicants might not have the chance to seek advice from a lawyer or migration agent before responding to the Tribunal.  

Also, a large number of applicants in the RRT are victims of torture and trauma. Common symptoms they suffer include severe anxiety, memory, and concentration problems.  The Bill may disadvantage these people as they may be less able to understand, or respond to, information provided orally.  

Legal proceedings can be a stressful and intimidating experience for many people. This is especially so for applicants fleeing state-sanctioned violence, for whom the outcome of their case may have life and death implications.  The requirement to respond orally may act as an additional stressor and may impair an applicant’s ability to best represent their case.

No requirement to put the full case to an applicant

The Bill is unfair because there is no requirement to put the full case against them to an applicant. The changes only require that information which has not been put to DIMA previously, is conveyed to the applicant orally.  Contrary to the rules of natural justice, this means that an applicant may not have the chance to comment on information which forms the basis of an adverse decision against them.

No guidance for exercising the discretion

The Commission is also concerned that the Bill gives no guidance as to how the tribunal’s discretion to grant extra time to an applicant to respond should be exercised.

Given that the terms of the discretion are very broad, it may be difficult to ensure it is applied consistently as between different tribunal members and applicants’ cases.  This may lead to unfairness as applicants in similar circumstances may be treated differently.

An unfair process breaches the right to a fair hearing

Under article 14(1) of the ICCPR, all persons have a right to a fair hearing. By creating a potentially unfair process, the Bill may breach this right.

The content of this right is flexible.  But, the requirements are in proportion to the consequences of a decision. The consequences of migration and refugee matters are potentially very serious.  Accordingly, it makes sense that a high standard must be met in these cases. 

Specifically, the Commission submits that the right to a fair trial requires the Tribunal to give an applicant full opportunity to challenge the information before it.  Requiring an applicant to respond orally to adverse information, may not be affording them this opportunity. 

An unfair process may lead to incorrect decisions and ‘refoulement’

By creating a procedure for determining refugee claims that is potentially inadequate and unfair, an unacceptable risk of refoulement is created because incorrect decisions are more likely to be made.  

Such refoulement will have consequences of the highest significance for the individual involved.  It will also place Australia in breach of its obligations under the Refugees Convention as well as ICCPR, the Convention on the Rights of the Child and the Torture Convention.

Children are likely to be particularly disadvantaged by the Bill

The Bill is likely to be particularly detrimental to children, who are usually the least equipped to represent their own interests in a hearing.

There is no requirement under the Bill or the Migration Act for children to be assisted or represented at a hearing.

The Commission is concerned that this places children in an extremely vulnerable position.  We submit that it is possible that the Bill will contravene Australia’s obligations under the Convention on the Rights of the Child. 

Recommendation

The Bill should not be passed. It creates an unfair process which is likely to breach applicants’ right to a fair hearing and lead to the refoulement of asylum seekers. 

The Bill may give tribunals greater flexibility, but may not improve their efficiency. However, even if it does, efficiency is not justified if it comes at the expense of applicants’ human rights.

 

We urge the Committee to recommend that this Bill not be passed.