MEMORANDUM

on Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 for The Minister of Immigration and Citizenship

(Word Count: 1972 including footnotes)

RE: TOPIC 1 In November 2011, the HC's decision in M61 threw into disarray the government's strategy for processing the asylum claims for irregular marital arrivals (IMAs) on Christmas Island. Prepare a memorandum for the Minister of Immigration: (a) explaining and commenting on the HC's ruling on the common law implication of procedural fairness ; and (b) advising how the government could respond to ensure the smooth and efficient process of future refugee claims by IMAs.

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i.

Introduction

The implications of the High Courts unprecedented requirement of procedural fairness in the offshore Refugee Status Determination (RSD) process and potential governmental action to respond to these significant implications are examined in this memorandum. The ruling in Plaintiff M61/2010E (and M69/2010) v Commonwealth of Australia (M61/M69) declared that there is a duty to afford procedural fairness to asylum seekers, whose rights have been directly affected by prolonged arbitrary detentions under the conduct of RSD, such that notice and a fair hearing is required to be given regarding adverse information that is to affect their claims and is to be considered by the decision makers. 1 While the decision advocates individual liberty, it is expected that the availability of judicial review at a time of increasing trend for refugee refusal2, will burden the judiciary with review litigations of RSD. Accordingly, we provide our recommendations of approaches to enhance the efficiency of the judicial review process to minimise the duration of refugee claims. ii. Procedural Fairness

In Australia, embedded within its Constitution and common law, there has always been an intention to guarantee procedural propriety in the exercise of executive power, that is, assurance against administrative unfairness and the arbitrary use of such power.3 It has been established in common law that affording procedural fairness consists of the rule against bias and the fair hearing rule.4 The latter was the issue of the relevant case and is the focus of our analysis. The presumption of the common law duty to afford procedural fairness by providing a hearing applies where an individuals rights, interests or legitimate expectations are adversely and directly affected by an exercise of a statutory power.5 It is important to note that this presumption is subject only by clear manifestation of a contrary statutory intention6 and failure to accord procedural fairness by a Minister exercising statutory power without such statutory limitation was found to amount to exceeding jurisdiction,7 which gives rise to a ground for judicial review. These circumstances arose in M61/M69 where the adversely affected personal liberty interests of asylum seekers were recognised as to require the proper exercise of governmental power through the implication of procedural fairness read by the High Court into the Migration Act 1958 (Cth) (Act).

1 2

Plaintiff M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41 (M61/M69) [69]. Re MIMIA; Ex parte Applicants S134/2002 (2003) 211 CLR 441. 3 See Robert Lindsay, Natural justice: procedural fairness 'now we see through a glass darkly' (2010) 63 AIAL Forum 67, 67. 4 Peter Cane and Leighton McDonald Principles of Administrative Law: Legal Regulation of Governance (Melbourne: Oxford University Press, 2008) 128. See, generally, MIMA v Jia Legeng (2001) 205 CLR 507 (Gleeson CJ). See also, Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J). 5 Kioa v West (1985) 159 CLR 550 [584] (Mason J), see also [609-611] (Brennan J) (Kioa). 6 Annetts v McCann (1990)170 CLR 596 (Brennan J). 7 Re Refugee Tribunal: ex parte Aala [2000] 204 CLR 82[41] (Gaudron and Gummow JJ).

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iii.

Highs Courts ruling in M61/M69

With the escalating number of irregular maritime arrivals (IMA) held in immigration detention in recent years,8 it may have been highly favourable for the Court to have allowed for the possibility of the government to maintain the RSD to be without judicial oversight. However, the single unanimous judgment in M61/M69 affirmed the unyielding position of Australian courts in respect to preserving its judicial function. 9 This firm stance in guarding liberty essentially upholds the rule of law and signals the Courts eagerness to oversee the executive power and to facilitate fairness in its decision making processes. In the present case, issues were found in the RSD process, consisting of a two tiered inquiry Refugee Status Assessment (RSA) and Independent Migration Review (IMR), which purported to ignore the rules of procedural fairness despite impinged interests in the absence of any legislative restriction.10 The RSD process was necessary to determine whether Australia has protection obligations under article 43 of the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol to detained unlawful non-citizens seeking to apply protection visas in Australia.11 The outcome was provided to the Minister to consider exercising his power under s46A(2) or s195A(2) of the Act when granting visas by reason of public interest.12 It is important to note that preliminary or provisional decisions forming part of the decision making process have been previously found to be subject to procedural fairness. 13 Whether procedural fairness was to be afforded in RSD depended on the characterisation of the nature of power being exercised by the RSA and IMR decision makers.14 It was held that the power being exercised was a power with a statutory foundation undertaken under and for the purpose of the Act15 rather than a non-prerogative executive power to inquire under s61 of the Constitution as argued by the Commonwealth. In this context, during the assessment of their claims in the RSD process, it was found that the applicants, whose Commonwealth right to freedom had been defeated by the policy of indefinite mandatory detention pursuant to s189(3) of Act, were entitled to protections of the Act16 which included the duty to afford a minimum of procedural fairness.17
8

Department of Immigration and Citizenship, Departmental Item (2009-10) Annual Report on Offshore Asylum Seeker Management <http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/departmental4-31.htm>. 9 George Williams and Andrew Lynch, The High Court on Constitutional Law: the 2010 Term (Paper presented at Gilbert Tobin Centre of Public Law Conference, Art Gallery of New South Wales, 25 April 2011) 14 <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/2011%20Con%20Law%20 Conference%20Paper%20G%20Williams_0.pdf>. 10 Migration Act 1958 (Cth) s42A. 11 Migration Act s36(2)(a) cited in M61/M69 [2010] HCA 41 [90]. 12 State of South Australia v OShea (1987) 163 CLR 378. 13 Ainsworth v Criminal Justice Commission (1991) 175 CLR 564, 578 (Mason CJ, Dawson, Toohey and Gaudron JJ) the requirements of natural justice are satisfied if the decision-making process, viewed in its entirety, entails procedural fairness. 14 Mark Aronson, Bruce Dyer and Matthew Grove, Judicial Review of Administrative Action, (Thomson Reuters, 3rd ed, 2004) 442-443. 15 Alan Shearer, Assessment of off-shore claims for refugee status [2010] 27 BAR News: Journal of the NSW BAR Association <http://search.informit.com.au.ezproxy2.library.usyd.edu.au/fullText;dn=20110119;res=AGISPT>. 16 Jarratt v Commissioner of Police for NSW [2005] HCA 50 [26] (Gleeson J). 17 M61/M69 [2010] HCA 41 [76].

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As M61/M69 did not decide whether the government was obliged to afford a robust degree of procedural fairness, it would have sufficed to afford the bare minimum comprised of adequate prior notice and a reasonable opportunity to respond to adverse material. However, similar to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,18 the IMR failed to give notice to the plaintiffs of change of circumstances in relation to country information which was credible, relevant and significant to the decision. 19 The right to a fair hearing was also denied. Although this right can be removed by amendments to the Migration Act validly under our Constitution, 20 the Court has held that where the nature of the interest is fundamental and consequences of the decision are detrimental to the affected person, the more requisite to afford procedural fairness and access to justice. 21 Hence the plaintiffs received a declaration underlining that judicial review is available to asylum seekers in relation to their RSD by Ministers in order to ensure that they act lawfully and adhere to basic standards of procedural fairness. iv. Government Response to M61/M69

After an overview of the current changes that the executive has already implemented since M61/M69 to ensure a fair, efficient and effective refugee status determination system, we propose further government actions to resolve insufficient resources22 that would minimise the duration of the judicial review process for IMAs cases by way of transparency and consistency. Following the decision in M61/M69 and announcement by Hon Chris Bowen MP on 7 January 2011,23 the flawed aspects of the RSD process by denying a fair hearing and falling short on the notice requirement, were corrected in the new Protection Obligations Determination (POD) process. Despite the similarities with RSD in that POD is also a two part scheme consisting of a Protection Obligations Evaluation (POE) and an Independent Protection Assessment (IPA) where the initial process involves a departmental officer and subsequently an independent assessor, POD allows for an early determination at the POE stage of whether or not protection obligations are owed. Further, a negative decision by the POE will be fast-tracked through a streamlined referral process to IPA. 24 These efficient measures are likely to minimise the delays in processing applications so as to prevent prolonged detention of the applicants. However, the government must take caution not to seek efficiency at the expense of procedural fairness.
18 19

(2001) 206 CLR 57. Kioa (1985) 159 CLR 550 [629] (Brennan J). 20 Justice John Basten, Limits on Procedural Fairness (Speech delivered at the AIAL Administrative Law Forum, Canbenrra, 30 June 2005) <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_basten300605>. 21 Australian Human Rights Commission, Immigration detention on Christmas Island, Discussion Paper (2010) <http://www.hreoc.gov.au/human_rights/immigration/idc2010_christmas_island_response.html>. 22 James Simeon, A Comparative Analysis of the Response of the UNHCR and Industrialized States to Rapidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices for RSD Systems Design and Administration, (2010) 22 International Journal of Refugee Law 72, 102. 23 Department of Immigration and Citizenship, Changes to refugee status determination (2011) <http://www.immi.gov.au/visas/humanitarian/_pdf/faq-changes-to-refugee-status.pdf>. 24 Department of Immigration and Citizenship, above n 23.

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Another reaction that stemmed from the decision of the M61/M69 was the availability of judicial review of a negative assessment of IMAs claims for refugee status. It is evident through the various steps that have been taken to improve the transparency of the decision making process in POD, such as reviewing existing procedures and training, amending of standard materials and updating procedural guidelines for staff, training officers and particularly POE officers 25, that it is in the best interest of the Court to reduce the need of IMAs to seek judicial review. While judicial review provides an accountability mechanism in the decision making process of asylum seekers, it is likely to be exploited such that judicial review litigations in the Federal Magistrates Court (FMC) will experience overcrowding. To overcome the increased number of applications in the FMC, for judicial review, it should not simply limit the right to appeal in the FMC as that would burden the High Court to possible face simple erred cases, but rather federal magistrates should be appointed. A process for taking a matter as far as to the High Court should be devised, which may extend an applicants detention in indefinite periods, for consistency reasons of decision making as required by Australias international obligations.26 Moreover, for effective judicial review, as much as it is important to appoint magistrates, legal assistance to appellants is critical. While access to migration agents are provided through the publicly funded Immigration Advice and Application Assistance Scheme at the POD process to assist in preparing statement of claims and submissions, 27 the Court has shown its reluctance in advocating such a practice even in the onshore protection system.28 We strongly recommend the government to consider providing additional funding to legal aid commissions for judicial review proceedings involving IMAs in order to reduce time for judicial review proceedings which would significantly contribute to the efficient operation of the courts. Hence, the POD process has successfully implemented measures to observe procedural fairness, however without the efficient judicial review process, prolonged detention of asylum seekers remain an issue. Therefore, by promoting the transparent and consistent judicial review litigation, we propose the adoption of our recommendations.

25

Department of Immigration and Citizenship, Changes to refugee status determination (2011) <http://www.immi.gov.au/visas/humanitarian/_pdf/faq-changes-to-refugee-status.pdf>. 26 James Simeon, A Comparative Analysis of the Response of the UNHCR and Industrialized States to Rapidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices for RSD Systems Design and Administration, (2010) 22 International Journal of Refugee Law 72, 102. 27 Refugee Council of Australia, 2010 High Priorities List: Asylum Policy Issues (20 October 2010) <http://www.refugeecouncil.org.au/docs/current/2010_Asylum_priorities.pdf>. 28 Department of Immigration and Citizenship, above n 25.

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BIBLIOGRAPHY Articles/Books/Reports Aronson, Mark, Bruce Dyer and Matthew Grove, Judicial Review of Administrative Action, (Thomson Reuters, 3rd ed, 2004) Cane, Peter and Leighton McDonald Principles of Administrative Law: Legal Regulation of Governance (Melbourne: Oxford University Press, 2008) 128 Lindsay, Robert, Natural justice: procedural fairness 'now we see through a glass darkly' (2010) 63 AIAL Forum 67 Simeon, James, A Comparative Analysis of the Response of the UNHCR and Industrialized States to Rapidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices for RSD Systems Design and Administration, (2010) 22 International Journal of Refugee Law 72 Shearer, Alan, Assessment of off-shore claims for refugee status [2010] 27 BAR News: Journal of the NSW BAR Association <http://search.informit.com.au.ezproxy2.library.usyd.edu.au/fullText;dn=20110119;res=A GISPT> Williams, George and Andrew Lynch, The High Court on Constitutional Law: the 2010 Term (Paper presented at Gilbert Tobin Centre of Public Law Conference, Art Gallery of New South Wales, 25 April 2011) 14 <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/2011%20Con%20Law %20Conference%20Paper%20G%20Williams_0.pdf> Cases Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 Annetts v McCann (1990)170 CLR 596 Jarratt v Commissioner of Police for NSW [2005] HCA 50 Kioa v West (1985) 159 CLR 550 MIMA v Jia Legeng (2001) 205 CLR 507 Plaintiff M61/2010E (and M69/2010) v Commonwealth of Australia [2010] HCA 41

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Re Minister for Immigration and Multicultural International Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Tribunal: ex parte Aala [2000] 204 CLR 82 State of South Australia v OShea (1987) 163 CLR 378 Sullivan v Department of Transport (1978) 20 ALR 323 Legislation Migration Act 1958 (Cth) Treaties United Nations 1951 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) United Nations 1967 Protocol relating to the Status of Refugees 606 UNTS 267 (entered into force 4 October1967) Other Australian Human Rights Commission, Immigration detention on Christmas Island, Discussion Paper (2010) <http://www.hreoc.gov.au/human_rights/immigration/idc2010_christmas_island_response. html>. Department of Immigration and Citizenship, Changes to refugee status determination (2011) <http://www.immi.gov.au/visas/humanitarian/_pdf/faq-changes-to-refugee-status.pdf>. Department of Immigration and Citizenship, Departmental Item (2009-10) Annual Report on Offshore Asylum Seeker Management <http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/departmental4-31.htm> Justice John Basten, Limits on Procedural Fairness (Speech delivered at the AIAL Administrative Law Forum, Canbenrra, 30 June 2005) <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_basten3006 05>. Refugee Council of Australia, 2010 High Priorities List: Asylum Policy Issues (20 October 2010) <http://www.refugeecouncil.org.au/docs/current/2010_Asylum_priorities.pdf>

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