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Published online by Cambridge University Press: 01 January 2025
The Immigration Assessment Authority (‘IAA’) provides the final merits review mechanism for people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is incredibly significant, with consequences ranging from resettlement in Australia, removal to an applicant’s country of origin or indefinite immigration detention in harsh conditions. Eight years since its introduction, this article asks whether the IAA has realised the goal of promoting efficient review whilst meeting other important administrative objectives. The article takes a novel approach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has balanced administrative justice properties. In so doing, this article offers a unique lens to critically reflect on the role of the IAA and whether, once its mandate is ended, this new model of review should be abandoned or revived for future merits review of asylum claims.
The author is a former recipient of an Australian Government Research Training Scholarship. With special thanks to Dr Amy Maguire, Dr John Anderson and Dr Jim Jose for their thoughtful feedback and helpful advice. Special thanks also to Dr David Tomkins for his valuable reflections on this article. An earlier version of this article was presented to the Australian Institute of Administrative Law, National Administrative Law Forum, Canberra, 18-19 July 2019.
1. These practices include the introduction of mandatory immigration detention for all people arriving by boat in Australia without a valid visa, offshore processing, bars on permanent residency, the introduction of temporary protection and boat turn-backs with enhanced screening on water: see University of New South Wales’ Andrew and Renata Kaldor Centre for International Refugee Law, Australia’s Refugee Policy: An Overview (Factsheet, 17 July 2020).
2. Australian Government, ‘What We Do’, Immigration Assessment Authority (Web Page, 13 April 2016) <http://www.iaa.gov.au/about/what-we-do>.
3. A person is a refugee if, owing to a ‘well-founded fear of persecution’, they are unable or unwilling to return to their country of nationality: Migration Act 1958 (Cth) s 5H (‘Migration Act’). Persons may also be able to seek complementary protection in accordance with section 36(2)(aa) of the Act.
4. Joel Townsend and Holly Kerwin, ‘Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal Courts to the Fast Track Processing Regime and the “Limited Review” of the Immigration Assessment Authority’ (2021) 49(2) Federal Law Review 185, 185–187.
5. Ibid 204–5.
6. See Emily McDonald and Maria O’Sullivan, ‘Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime’ (2018) 41(3) University of New South Wales Law Journal 1003; Mary Anne Kenny and Nicholas Procter, ‘The Fast Track Refugee Assessment Process and the Mental Health of Vulnerable Asylum Seekers’ (2016) 23(1) Psychiatry, Psychology & Law 62; Nicholas Procter, Mary Anne Kenny, Heather Eaton and Carol Grech, ‘Lethal Hopelessness: Understanding and Responding to Asylum Seeker Distress and Mental Deterioration’ (2019) 27(1) International Journal of Mental Health Nursing 448; Refugee Advice and Casework Service, Submission No S108 to the Law Council of Australia’s Justice Project’ (9 October 2017); Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws (Report No 129, 2016).
7. Amy Elton, ‘Towards a Normative Standard of Administrative Justice; Themes and Principled Tensions’ (2021) 95(12) Australian Law Journal 964, 976–8.
8. As an example, at the 1999 AIAL conference which prioritised the concept of administrative justice ‘no speaker offered a detailed or perhaps even workable definition of administrative justice’: Matthew Groves, ‘Administrative Justice in Australian Administrative Law’ (2011) 66 Australian Institute of Administrative Law Forum 18.
9. Creyke and McMillan describe this tension as ‘conflicting (and legitimate) interests’: see Robin Creyke and John McMillan, ‘Administrative Justice — The Concept Emerges’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (Australian Institute of Administrative Law, 2000).
10. Elton (n 7) 977–8.
11. Ibid.
12. Ibid.
13. ‘Specialised’ in that the merits review function involves ‘the evaluation of complex evidence and credibility issues’: Susan Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: An Inquistorial Role?’ 1998 5(2) Australian Journal of Administrative Law 78, 82.
14. This paper only considers the Immigration Assessment Authority through the lens of administrative justice. It does not consider the Administrative Appeals Tribunal’s Migration & Refugee Division. Nor does this research extend to 501 character assessments. For a thoughtful analysis of these assessments, see Peter Billings, ‘Getting Rid of Risky Foreigners: Promoting Community Protection at the Expense of Administrative Justice’ (2019) 47(2) Federal Law Review 231.
15. Administrative Appeals Tribunal, ‘Chapter 5 Immigration Assessment Authority’, Annual Report 2016–17 (Report, 25 September 2017) 57–9; Administrative Appeals Tribunal, ‘Chapter 5 Immigration Assessment Authority’, Annual Report 2017–18 (Report, 2 October 2018) 65–7; Administrative Appeals Tribunal, ‘Chapter 5 Immigration Assessment Authority’, Annual Report 2018–19 (Report, 25 September 2019) 69–71; Administrative Appeals Tribunal, ‘Chapter 5 Immigration Assessment Authority’, Annual Report 2019–20 (Report, 24 September 2020) 65–7; Administrative Appeals Tribunal, ‘Chapter 4 Immigration Assessment Authority’, Annual Report 2020–21 (Report, 24 September 2021) 85–91.
16. The case study was based on decisions from 01 January 2019 to 30 March 2019. During this time, 66 decisions were published online from a total of 546 decisions: See Australian Government, ‘Caseload Report Summary 2018–2019’, Immigration Assessment Authority (Web Page, 2019) <http://www.iaa.gov.au/IAA/media/IAA/Statistics/IAACaseloadReport2018-19YTD.pdf>.
17. Commonwealth, Parliamentary Debates, House of Representatives (25 September 2014) 10545 (Scott Morrison, Minister for Immigration and Border Protection).
18. Ibid.
19. Ibid.
20. The legitimacy of fears that people seeking asylum are manufacturing claims and that there is a need for restrictive action by government is beyond the scope of this article. Authors discussing the legitimacy of harsh measures towards people seeking asylum by boat include Elizabeth Rowe and Erin O’Brien, ‘Constructions of Asylum Seekers and Refugees in Australian Political Discourse’ in Kelly Richards and Juan Marcellus Tauri (eds), Crime Justice and Social Democracy: Proceedings of the 2nd International Conference (Queensland University of Technology, 2013) 201, 173–181; Sharon Pickering and Leanne Weber, ‘New Deterrence Scripts in Australia’s Rejuvenated Offshore Detention Regime for Asylum Seekers’ (2014) 39(4) Law and Social Inquiry 1006; Patrick van Berlo, ‘Australia’s Operation Sovereign Borders: Discourse, Power and Policy from a Crimmigration Perspective’ (2015) 34(4) Refugee Survey Quarterly 75.
21. See Tom Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67.
22. Authors considering administrative justice and similar concepts include Robert French, ‘Administrative Justice — Words in Search of Meaning’ (Speech, Australian Institute of Administrative Law Annual Conference — National Administrative Law Forum 2010: Delivering Administrative Justice, 22 July 2010); Robert French, ‘Administrative Law in Australia: Themes and Values’ in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007); Groves (n 8); Robin Creyke and John McMillan, ‘Accountability in an Administrative State’ in Robin Creyke and John McMillan (eds), Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 3rd ed, 2012); Robin Creyke ‘Administrative Justice — Towards Integrity in Government’ (2007) 31(3) Melbourne University Law Review 705.
23. Elton (n 7) 977–8.
24. Creyke and McMillan, ‘The Concept Emerges’ (n 9) 3.
25. Elton (n 7) 968.
26. Ibid 969.
27. Ibid 971.
28. Ibid 972.
29. Ibid 974.
30. Ibid 977.
31. Ibid 967–70.
32. ‘What if my Protection Visa Application is Rejected by the IAA?’, Refugee and Immigration Legal Service (Web Page, 18 July 2022) <https://www.rails.org.au/sites/default/files/2021-01/PVApplicationrefusedbyIAA-InfoPack-15Dec2020_0.pdf>; Chris Honnery, ‘The Immigration Assessment Authority and the Erosion of Fairness in Australia's Refugee Framework’ Border Criminologies Blog (Blog Post, 6 December 2019) <https://blogs.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/12/immigration>.
33. See, eg, NDIS review through the Administrative Appeals Tribunal where applicants are invited to put forward any new information that they think might be relevant: ‘National Disability Insurance Scheme — What happens after lodgement?’, Administrative Appeals Tribunal (Web Page, 2022) <https://www.aat.gov.au/steps-in-a-review/national-disability-insurance-scheme-ndis/what-happens-after-lodgement>.
34. Bingham (n 21) 77. See also Janina Boughey, ‘The Use of Administrative Law to Enforce Human Rights’ (2009) 17 Australian Journal of Administrative Law 25, 37; Elton (n 7) 970.
35. Treaties must be enacted in good faith in accordance with the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 26, 31. For a list of treaties to which Australia is subject, see the Australian Treaties Database: ‘Australian Treaties Database’ Australian Government Department of Foreign Affairs and Trade (Web Page, 2022) <https://www.dfat.gov.au/international-relations/treaties/australian-treaties-database>. Treaties cover a broad range of issues from trade and commerce to environmental law to human rights.
36. Benjamin Johnson and Richard Jordan, ‘Why Should like Cases be Treated Alike: A Formal Model of Aristotelian Justice’ (Working Paper, Princeton University and Baylor University, 1 March 2017) <https://scholar.princeton.edu/sites/default/files/benjohnson/files/like_cases.pdf>.
37. See Nick Gill, Rebecca Rotter, Andrew Burridge and Jennifer Allsopp, ‘The Limits of Procedural Discretion: Unequal Treatment and Vulnerability in Britain’s Asylum Appeals’ (2018) 27(1) Social & Legal Studies 49.
38. The former body for reviewing claims for asylum was the Refugee Review Tribunal: RefWorld, ‘Australia: Refugee Review Tribunal’ UNHCR (Web Page, 2022) <https://www.refworld.org/publisher,AUS_RRT,,,50ffbce513c,,0.html>.
39. Elton (n 7) 972.
40. Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Hart Publishing, 1st ed, 2011) 12.
41. Parliamentary Debates (Scott Morrison) (n 17) 10545.
42. Substantive rule of law theory is drawn from Bingham (n 21).
43. Australian Constitution s 51(xix).
44. The popularity in Australia for harsh treatment of people seeking asylum has been evident in Lowy Institute Polling since 2008. See Kelsey Munro and Alex Oliver, ‘Polls apart: how Australian views have changed on “boat people”’ The Interpreter: Lowy Institute (Web Page, 19 February 2019) <https://www.lowyinstitute.org/the-interpreter/polls-apart-how-australian-views-have-changed-boat-people>.
45. Janet Phillips, ‘A Comparison of Coalition and Labor Government Asylum Policies in Australia Since 2001’ (Research Paper, Parliamentary Library, Parliament of Australia, 2 February 2017).
46. See, eg, Human Rights Law Centre, Submission No 166 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (31 October 2014); Castan Centre for Human Rights Law, Submission No 137 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (2014); Amnesty International, Submission No 170 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (7 November 2014); Law Council of Australia, Submission No 129 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (5 November 2014); Australian Red Cross, Submission No 164 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (2014); Refugee and Immigration Legal Centre, Submission No 165 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (11 November 2014); Institute of International Law and Humanities, Melbourne Law School and the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Submission No 167 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (31 October 2014); Refugee Advice and Casework Service, Submission No 134 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (31 October 2014).
47. Migration Act (n 3) s 5H(1).
48. Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
49. United Nations High Commissioner for Refugees, Submission No 138 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (31 October 2014) 4. This is only one of several human rights concerns raised in the Submission.
50. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), art 33 (‘Refugee Convention’).
51. Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Report, 24 November 2014) [3.71].
52. Ibid [3.76] Recommendation 2.
53. Ian David Francis Callinan AC, Review: Section 4 of the Tribunals Amalgamation Act (Report, 23 July 2019) [1.25] <https://www.ag.gov.au/sites/default/files/2020-03/report-statutory-review-aat.pdf>.
54. Mary Crock and Kate Bones, ‘Australian Exceptionalism: Temporary Protection and the Rights of Refugees’ (2015) 16(2) Melbourne Journal of International Law 1, 19.
55. For an interesting analysis of Australia’s amendments to the Migration Act regarding indefinite detention and non-refoulement, see Lillian Robb, ‘There was an old lady who swallowed a fly: progressively more troubling amendments to the Australian Migration Act’ (2022) 28(2–3) Australian Journal of Human Rights 329.
56. On 30 June 2022, there were 29 IAA Reviewers, with 8 members of the AAT available to assist the IAA to perform its functions: Administrative Appeals Tribunal, Annual Report 2020–2021 (Report, 24 September 2021), 85.
57. Migration Act (n 3) s 473DA provides an exhaustive statement of the natural justice hearing rule.
58. Migration Act (n 3) Part 7AA; Immigration Assessment Authority, Practice Direction 1 and Practice Direction 2 (Online) <https://www.iaa.gov.au/about/practice-directions>.
59. See, eg, Immigration Assessment Authority, Practice Direction 1 and Practice Direction 2; Migration Act (n 3) ss 473DB, 473DC.
60. Migration Act (n 3) s 473DD.
61. Ibid s 473CB; MIBP v AMA16 [2017] FCAFC 136, [73]–[74].
62. This is discussed in more detail below.
63. ‘What we do’, Immigration Assessment Authority (Web Page, 18 July 2022) <https://www.iaa.gov.au/about/what-we-do>.
64. For critical opinion regarding the IAA’s employment by the public service, see Commonwealth, Parliamentary Debates, Senate (30 August 2021) 5475 (Lidia Thorpe), dissenting to the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Bill. Senator Thorpe stated that ‘IAA reviewers are not independent decision-makers; they are public servants. They are responsible for implementing the policies of the executive government. It is incredibly inappropriate to give IAA reviewers the protection afforded to independent judicial officers…’: at 5475.
65. Law Institute of Victoria, Submission No 7 to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Bill 2021 (15 July 2021) 1.
66. Department of Parliamentary Services (Cth), Bills Digest (Digest No 40 of 2014–15, 23 October 2014).
67. Refugee Council of Australia, Submission No 16 to Senate Legal and Constitutional Affairs Committee, The Performance and Integrity of Australia’s Administrative Review System (24 November 2021).
68. Australian Government, Immigration Assessment Authority ‘About’ (Web Page, 8 February 2019) <https://www.iaa.gov.au/about>.
69. See the recent Discussion Paper by Debra Wilkinson and Elizabeth Morison, ‘Cronyism in Appointments to the AAT: An Empirical Analysis’ The Australia Institute (Discussion Paper, The Australia Institute, May 2022) <https://australiainstitute.org.au/wp-content/uploads/2022/05/P1167-Cronyism-in-appointments-to-the-AAT-Web21-copy.pdf>. See summary of submissions to the Senate Legal and Constitutional Affairs References Committee, The Performance and Integrity of Australia’s Administrative Review System, (Interim Report, March 2022) <https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024867/toc_pdf/TheperformanceandintegrityofAustralia'sadministrativereviewsystem.pdf;fileType=application%2Fpdf>. Particular concerns that have been raised include the short tenure of positions and the lack of legal qualifications of many appointees.
70. Jake Evans, ‘“Politicised” Administrative Appeals Tribunal Abolished, After Attorney-General Declares its Reputation Ruined’ ABC News (online, 16 December 2022) <https://www.abc.net.au/news/2022-12-16/administrative-appeals-tribunal-abolished-by-attorney-general/101781300>.
71. Asylum Seeker Resource Centre, Submission No 5 to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Bill 2021 (15 July 2021), 6. The new law was passed, amending the Administrative Appeals Tribunal Act 1975 (Cth) s 60.
72. Law Institute of Victoria, Submission 7 to Senate Legal and Constitutional Affairs Committee, Inquiry into the Courts and Tribunals Legislation Amendment (2021 Measures No.1) Bill 2021 (15 July 2021) 1.
73. Parliamentary Debates (Lidia Thorpe) (n 64) 5475.
74. Migration Act (n 3) s 476.
75. Stephen Tully, ‘Fast Track Decision Making by the Immigration Assessment Authority: the State of Play’ (Speech, ‘Decision Making and Reason Writing’ Seminar Series, Legalwise, Sydney, Australia, 4 September 2017) <https://static1.squarespace.com/static/538e6312e4b03cefc2a8a0c3/t/59b88dff8dd041ada30792fb/1505267204603/Legalwise+Article+Sept+17+Tully.pdf>.
76. See below under the third theme ‘Due Process’ for a discussion of the review of the legality of decisions.
77. Refugee and Immigration Legal Service, ‘What if my Protection Visa Application is Rejected by the IAA?’ (Information Pack, October 2020) 2 <https://www.rails.org.au/sites/default/files/202101/PVApplicationrefusedbyIAA-InfoPack-15Dec2020_0.pdf>.
78. The Migration and Refugee Division (‘MRD’) of the AAT is similarly the final merits review option for applicants; however, it is noted that the MRD does not provide a ‘limited’ form of review as the final merits review, like the IAA.
79. Parliamentary Debates (Scott Morrison) (n 17) 10545, 10547
80. See ibid 10550.
81. The Reviewer ‘must’ consider all information from the Secretary: Migration Act (n 3) s 473CB.
82. See Migration Act (n 3) ss 473DC, 473DD, 473EA; Immigration Assessment Authority, Practice Direction for Applicants, Representatives and Authorised Recipients (Web Page, 1 May 2020) <https://www.iaa.gov.au/IAA/media/IAA/Files/PracticeDirections/Practice-Direction-1-Applicants-Representatives-and-Authorised-Recipients.pdf > (‘Practice Direction 1’); Immigration Assessment Authority, Practice Direction: The giving of information to the Immigration Assessment Authority by the Secretary of the Department of Immigration and Border Protection (Web Page, 22 September 2016) <https://www.iaa.gov.au/IAA/media/IAA/Files/PracticeDirections/Practice-Direction-2-The-giving-of-information-to-the-IAA-by-the-Secretary.pdf>.
83. Migration Act (n 3) s 433DD(ii).
84. Ibid s 433DD.
85. IAA18/05824 (10 January 2019) J McLeod; IAA18/05681 (21 January 2019) S Ryan; IAA18/06117 (30 January 2019) K Allen; IAA18/05304 (31 January 2019) T Hennessy; IAA18/06148 (4 February 2019) C Wilson; IAA18/06037 (6 February 2019) M Wei; IAA18/05761 (26 February 2019) J Stuckey; IAA18/06156 (8 March 2019). In several of these cases, the new information considered was not brought forward by the applicant but was rather new country information from the Department of Foreign Affairs, specifically related to particular asylum claims.
86. Immigration Assessment Authority, Practice Direction for Applicants, Representatives and Authorised Recipients (17 December 2018). This Practice Direction was revoked and replaced with the Practice Direction for Applicants, Representatives and Authorised Recipients (n 82) in May 2020.
87. IAA18/06112 (17 January 2019) S MacKenzie; IAA18/05304 (31 January 2019) T Hennessy; IAA18/06162 (6 March 2019) M Simmons.
88. Note also that the Migration Act (n 3) s 473FA(2) states that Tribunal is not bound by the rules of evidence.
89. If new country information is available, the Secretary has a choice of whether to include it: DYU17 v Minister for Immigration & Border Protection [2019] FCCA 824, [21], [29].
90. See Administrative Appeals Tribunal, Annual Report 2012–2013 (Report, 2013) 21 <https://www.aat.gov.au/aat/files/MRDAnnualReports/MRTRRTAR201213.pdf>. The report noted that the 2012–2013 remit rate was ‘significantly higher’ than the previous year and that this was ‘directly related to the unauthorised maritime arrival caseload for which the set-aside rate was higher (65 per cent).
91. See ibid.
92. Migration Review Tribunal and Refugee Review Tribunal, Annual Report 2014–2015 (Report, 29 September 2015) vi <https://www.aat.gov.au/aat/files/MRDAnnualReports/ar1415/pdf/mrt-rrt_2014-15.pdf>.
93. Administrative Appeals Tribunal, Annual Report 2020-21 (Report, 24 September 2021) 86 <https://www.aat.gov.au/AAT/media/AAT/Files/Reports/AR202021/AR2020%e2%80%9321.pdf>.
94. Note that statistics for a single period vary across different reporting years, presumably as more accurate data was compiled. Where there is an anomoly in statistics, the most recent data is taken to be correct.
95. Also, note that those subject to enhanced screening are not included in the IAA statistics. If these people were afforded review by the IAA, the statistics may be different.
96. Migration Act (n 3) ss 472DB(1)(b), 473DD.
97. McDonald and O’Sullivan (n 6) 1024–5. The authors note that some of this discrepancy may be explained by the fact that AAT applicants can seek legal representation regarding their prospects of success prior to making a claim, whereas IAA review is automatic. However, the authors assert that there is a higher rate of refusal in IAA review nonetheless.
98. Ibid 1025.
99. Parliamentary Debates (Scott Morrison) (n 17) 10548.
100. This does not indicate that the RRT and AAT always meet standards of administrative justice. These tribunals have received some criticism for failing to get decisions right: Mary Crock, ‘The Refugees Convention at 50: Mid-life Crisis or Terminal Inadequacy? An Australian Perspective’ in Susan Kneebone (ed), The Refugees Convention 50 Years On: Globalisation and International Law (Ashgate, 2003) 47.
101. Migration Act (n 3) s 473FA(1). See also s 473DA(1).
102. This is pursuant to jurisdictional error under the Australian Constitution s 75(v).
103. (2019) 268 CLR 76, 97 [53] (‘CNY17’) (Nettle and Gordon JJ) quoting Webb v The Queen (1994) 181 CLR 41, 53.
104. CNY17 (n 102) [70]–[102]. Justices Nettle and Gordon delivered joint judgments with Edelman J delivering a separate judgment, Kiefel and Gageler JJ dissenting.
105. Ibid [102].
106. Ibid [102].
107. Matthew Groves, ‘Clarity and Complexity in the Bias Rule’ (2020) 44(2) Melbourne University Law Review 565, 594–7. Groves states that this complexity is not necessarily a bad thing, it merely reflects the way that the same material can be viewed in different ways and is suggestive of different perspectives arising from different life experience.
108. Migration Act (n 3) s 473DA(1).
109. Ibid s 473DB.
110. Ibid.
111. The Coalition Party, The Coalition's Policy to Clear Labor’s 30,000 Border Failure Backlog (August 2013) 7.
112. Another means would be to allocate increased resources to the task of review.
113. ‘Fair Process: Policy Statement’, Asylum Seeker Resource Centre (Web Page, 2022) <https://www.asrc.org.au/policies/fair-process/>.
114. Natasha Robinson, ‘“Fast-Track” Process for Asylum Seekers to Result in Lengthy Delays as Court Challenges Mount', ABC News (online, 16 April 2016) <https://www.abc.net.au/news/2016-04-16/fast-track-process-asylum-seekers-lengthy-delays-court-challenge/7331296>.
115. Robert Thomas and Joe Tomlinson, ‘Mapping Current Issues in Administrative Justice: Austerity and the “More Bureaucratic Rationality” Approach’ (2017) 39(3) Journal of Social Welfare and Family Law 380, 385.
116. For example, in 2012–13 the set-aside rate was 47 per cent for represented applicants and 11 per cent for unrepresented Applicants: Migration Review Tribunal and Refugee Review Tribunal, Annual Report 2012–13 (Report, 2013) 21 <https://www.aat.gov.au/aat/files/MRDAnnualReports/MRTRRTAR201213.pdf>.
117. Townsend and Kerwin (n 4) 14.
118. Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 [21] (‘CRY16’), referring to Minister for Immigration and Border Protection v DZU16 (2017) 321 FLR 306; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [72], [94]–[95]. See also Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 227 [21]; DPI17 v Minister for Home Affairs (2019) 269 FCR 134, 145.
119. CRY16 (n 117). See also ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439, 477 [87] where it was found that ‘without providing any sufficient reason to depart from a delegate’s finding as to demeanour on interview, an IAA review is bound to accept those findings of the delegate’.
120. See BMV16 v Minister for Home Affairs (2018) 261 FCR 476 where the Court found that it was unreasonable to expect an immediate response to new information.
121. Townsend and Kerwin (n 4) 14.
122. Tim Peyton, ‘Judicial Review of the Fast-track Asylum Seeker Assessment Process’ (2020) 27(1) Australian Journal of Administrative Law 20.
123. 326 FLR 389 [62].
124. Billings (n 14) 237.
125. Refugee Advice and Casework Service, Submission No 108 to Law Council of Australia, The Justice Project (9 October 2017) 8, referring to Stephen H Legomsky, ‘Restructuring Immigration Adjudication’ (2010) 59(8) Duke Law Journal 1635.
126. See Table 1 above.
127. See Administrative Appeals Tribunal, Administrative Appeals Tribunal Annual Report 2019–20 (Report, 24 September 2020) 65–67 <https://www.aat.gov.au/AAT/media/AAT/Files/Reports/AR201920/AAT-Annual-Report-2019-20.pdf>.
128. Asylum Seeker Resource Centre (n 112).
129. For a copy of the form, see ‘Application for a Protection Visa’ Department of Home Affairs (2020) <https://immi.homeaffairs.gov.au/form-listing/forms/866.pdf>.
130. Asylum Seeker Resource Centre (n 112).
131. Ibid.
132. A reduction in welfare support for applicants has made it difficult for applicants to cover the essentials, let alone access to legal and interpretation services: Mary Anne Kenny, Nicholas Procter and Carol Grech, ‘Mental Health and Legal Representation for Asylum Seekers in the “Legacy Caseload”’ (2016) 8(2) Cosmopolitan Civil Societies Journal 4976.
133. Nor is legal representation assumed in the Administrative Appeals Tribunal: Andrew & Renata Kaldor Centre for International Refugee Law, ‘Do People Seeking Asylum Receive Legal Assistance?’ (Web Page, 4 May 2020) <https://www.kaldorcentre.unsw.edu.au/publication/legal-assistance-asylum-seekers>.
134. Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526, 538 [24] [sic].
135. Australian Government, ‘The Review Process’, Immigration Assessment Authority (Web Page, 8 February 2019) <https://www.iaa.gov.au/the-review-process>.
136. Immigration Assessment Authority, Practice Direction for Applicants, Representatives and Authorised Recipients (Web Document, 1 December 2018) <http://www.iaa.gov.au/IAA/media/IAA/Files/PracticeDirections/Practice-Direction-1-Applicants-Representatives-and-Authorised-Recipients.pdf>.
137. Asylum Seeker Resource Centre (n 112).
138. Rebecca Leabeater and Genevieve Wilks in collaboration with the Refugee Advice and Casework Service, ‘Australian Asylum Law: Cuts to Funding a Threat to Access to Justice and a Burden on the System’ (2014) 8 UNSW Law Society Court of Conscience 30, 31.
139. UNSW Sydney, ‘Do People Seeking Asylum Receive Legal Assistance?’, Andrew and Renata Kaldor Centre for International Refugee Law (Web Page, 4 May 2020) <https://www.kaldorcentre.unsw.edu.au/publication/legal-assistance-asylum-seekers>.
140. KPMG, Evaluation of Government Funded Assistance (Evaluation Report, September 2018) 21 <https://www.homeaffairs.gov.au/foi/files/2019/fa-181100194-document-released.PDF>.
141. Migration Review Tribunal and Refugee Review Tribunal, Annual Report 2014-2015 (Report, 29 September 2015) 22 <https://www.aat.gov.au/aat/files/MRDAnnualReports/MRTRRTAR201415.pdf>.
142. Ibid.
143. Refugee Advice and Casework Service (n 6) 8.
144. These included people who were eligible for PAIS (Primary Application Information Scheme) but had disengaged, had been previously overlooked or had since developed a significant physical or mental health barrier or were detained or incarcerated.
145. ‘Fast-tracking Statistics’, Refugee Council of Australia (Web Page, 12 February 2019) <https://www.refugeecouncil.org.au/fast-tracking-statistics/>. See also ‘The Federal Budget: What it Means for Refugees and People Seeking Humanitarian Protection’, Refugee Council of Australia (Web Page, 3 April 2019) <https://www.refugeecouncil.org.au/federal-budget-summary/>.
146. Australian Human Rights Commission, Lives on Hold: Refugees and Asylum Seekers in the ‘Legacy Caseload’ (Report, 2019) 29, 32 <https://humanrights.gov.au/sites/default/files/document/publication/ahrc_lives_on_hold_2019.pdf>.
147. (2018) 261 FCR 476, 501.
148. AZZ18 v Minister for Home Affairs (2019) 166 ALD 90.
149. As Billings convincingly argues, ‘reasons promote transparency over government decision-making’: Billings (n 14) 245 quoting Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 686 (Deane J).
150. Migration Act (n 3) s 473EA(1)(b).
151. In all instances, new information is considered first, followed by the applicant’s claims, then factual findings in relation to these claims and finally whether the applicant meets the criteria for refugee status or complementary protection obligations. See, eg, IAA19/06277 (5 April 2019); IAA19/06386 (15 March 2019); IAA19/06283; IAA19/06284; IAA19/06285 (14 March 2019).
152. Decisions generally quote the definition of ‘refugee’ straight from the Migration Act (n 3) s 5H(1) and provide a simplified account of the meaning of ‘well-founded fear of persecution’ in accordance with Section 5J. See, eg, IAA19/06386 (15 March 2019).
153. This terminology was evident across all 2019 cases and is largely unavoidable.
154. Australian Government, ‘Decisions’, Immigration Assessment Authority (Web Page, 2 May 2022) <http://www.iaa.gov.au/about/decisions>.
155. Ibid s 473EC.
156. Ibid s 473GD. This carries a penalty of 2 years imprisonment.
157. Ibid s 473GB.
158. 2481 decisions were finalised in the 2017–2018 financial year and, of these, 175 were published: Immigration Assessment Authority, 2017–2018 Caseload Summary (Web Document) <http://www.iaa.gov.au/IAA/media/IAA/Statistics/IAACaseloadReport2017-18.pdf>.
159. Immigration Assessment Authority, Caseload Report Summary 2018-2019 (Web Document) <http://www.iaa.gov.au/IAA/media/IAA/Statistics/IAACaseloadReport2018-19YTD.pdf>.
160. With the exception of a data breach that exposed details of 9250 asylum seekers: Department of Immigration and Border Protection, Own Motion Investigation Report (Report, November 2014) <https://www.oaic.gov.au/privacy-law/commissioner-initiated-investigation-reports/dibp-omi>. This was not an IAA error but would likely impact on the confidentiality of people within the process of seeking asylum.
161. Migration Act (n 3) s 473EC(2).
162. Ibid s 473GC.
163. Australian Government, ‘Department of Immigration and Border Protection: Own Motion Investigation Report’, Office of the Australian Information Commissioner (Web Page, November 2014) <https://www.oaic.gov.au/privacy-law/commissioner-initiated-investigation-reports/dibp-omi#findings>.
164. See, eg, IAA18/05830 (12 February 2019).
165. See, eg, IAA18/05612 (16 January 2019) S Mackenzie; IAA18/05897 (1 February 2019) S Mansour, IAA18/05830 (12 February 2019) L Hill; IAA18/05766 (4 March 2019) D Power; IAA19/06277 (5 April 2019).
166. IDF Callinan, Review: Section 4 of the Tribunals Amalgamation Act (Report, 23 July 2019) [1.25] <https://www.ag.gov.au/sites/default/files/2020-03/report-statutory-review-aat.pdf>.
167. Crock (n 99); Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, The Performance and Integrity of Australia’s Administrative Review System (Report, March 2022) <https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024867/toc_pdf/TheperformanceandintegrityofAustralia'sadministrativereviewsystem.pdf;fileType=application%2Fpdf>.
168. Australian Government, ‘A New System of Federal Administrative Review’, Attorney-General’s Department (Web Page, 2022) <https://www.ag.gov.au/legal-system/new-system-federal-administrative-review#:∼:text=TheAustralianGovernmenthasannounced,merit%2Dbasedsystemofappointments>.