DIMIA Annual Report 2004-05
External scrutiny
JUDICIAL DECISIONS AND DECISIONS OF ADMINISTRATIVE TRIBUNALS
Decision-making under the Migration Act 1958 and Australian Citizenship Act 1948 is subject to a high level of external scrutiny, by Tribunals and by the courts. Almost all visa decisions made by the department in Australia are subject to full merit review by the Refugee Review Tribunal (RRT) (protection visas) or the Migration Review Tribunal (MRT) (other visas). The Administrative Appeals Tribunal (AAT) has jurisdiction in relation to citizenship decisions, decisions about migration agent registration, and some visa decisions made on 'character' grounds (character decisions made personally by the Minister are not AAT reviewable). The comprehensive availability of merit review in these tribunals means that very few decisions by the department are challenged in the courts.
The decisions of the tribunals are frequently challenged in the courts (Federal Magistrates Court, Federal Court, and High Court). The courts can only review decisions on legal grounds (not on 'merit'). The majority of litigation managed by the department involves an application for judicial review of a decision of the RRT or MRT. These cases (including appeals) comprised 92 per cent of new litigation during 2004-05. While the majority of applications are ultimately unsuccessful, the caseload remains high. During 2004-05 there were 4264 applications and appeals filed in the courts. This compares to 4991 during 2003-04, and 6351 during 2002-03.
As has been the case for many years, the majority of applications for judicial review are dismissed. Of the court cases (including appeals) resolved during 2004-05, only 7.4 per cent of RRT matters and 19.9 per cent of MRT matters were resolved in favour of the applicants. In addition, 2004-05 has been marked by the very high number of 'repeat' applications for judicial review, typically by a person who has previously unsuccessfully challenged an RRT decision and who then applies again for judicial review of the same decision (after a delay of years in some cases). The courts often dismiss these applications at an early stage in the litigation, on the basis that the application is an abuse of the court system. However, it is preferable to prevent these applications at the outset. The government proposes the establishment of effective time limits on the commencement of litigation. This matter is addressed in the Migration Litigation Reform Bill 2005, which was awaiting consideration by Parliament at the end of the financial year.
There was a continuing trend, during 2004-05, for the Federal Magistrates Court (FMC) to determine applications for judicial review of immigration decisions rather than the Federal Court. This accords with government policy, which reflects the fact that most immigration cases are relatively straight-forward applications by self-represented applicants. The Migration Litigation Reform Bill 2005 provides that almost all judicial review applications are to be heard initially in the FMC. In view of the large immigration caseload, the FMC faces a significant challenge in processing cases in a timely fashion. Currently, new matters are being allocated hearing dates that, in many cases, are more than 12 months after the date of filing the application in the court. Ongoing delays may provide an incentive for applicants to pursue judicial review as a means of extending lawful status in Australia.
During 2004-05, the High Court handed down important decisions clarifying the constitutional basis for immigration detention. In Al-Kateb v Godwin (6.8.04), the High Court held (4-3) that the Migration Act 1958 authorises indefinite detention of unlawful-non-citizens. The court also held that indefinite detention of unlawful non-citizens (who are 'aliens' for the purpose of the Constitution (s51(xix)) is permitted by the Constitution, provided the non-citizen is being held for the purpose of visa processing or removal/deportation from Australia. In Re Woolley; Ex parte Applicants M276/2003 (7.10.04) the High Court confirmed (7-0) that the result in Al-Kateb applies to all aliens, whether adults or children. There is no constitutional limitation on the immigration detention of children. The High Court also held (6-1) that the conditions of immigration detention are irrelevant to the question of whether the detention is lawful: Behrooz v Secretary, DIMIA (6.8.04).
More recently, significant litigation has taken place in relation to the 'duty of care' owed by the Commonwealth to immigration detainees. A number of cases have challenged the adequacy of the medical and psychiatric services provided to immigration detainees. In S v Secretary, DIMIA (5.5.04) the Federal Court held that the Commonwealth had breached its duty of care to two detainees at the Baxter immigration detention facility. The department has responded quickly to issues raised in that judgment about the coordination and management of the provision of medical and psychiatric services.
Another important decision handed down by the High Court in 2004-05 was Singh v The Commonwealth (9.9.04). The court held that Parliament has a broad discretion to decide which classes of people are to be treated as aliens. In particular, the court held (5-2) that being born in Australia does not necessarily mean that a person cannot be treated as an alien. The decision therefore supports the constitutional validity of current arrangements whereby children born in Australia to temporary entrants or unlawful non-citizens have the same status as their parents.