Submission: MIGRATION LITIGATION REVIEW

SUBMISSION BY THE HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION TO THE MIGRATION LITIGATION REVIEW

Introduction

1. The Human Rights and Equal Opportunity Commission (‘the
Commission’) has been invited to make submissions in relation to the Migration
Litigation Review (‘the Review’), being conducted by Ms Hilary Penfold
QC, First Parliamentary Counsel.

2. The Commission welcomes the opportunity to participate in
the Review and to make this submission. The Commission supports any measures
to enhance the efficient management of migration cases consistently with Australia’s
international human rights obligations.

3. The terms of reference issued by the Attorney General on
27 October 2003 provide that the review shall inquire into and report to the
Government on:

(a) measures for
the more efficient management and quicker disposition of migration cases,
and for the reduction of the large numbers of unmeritorious cases, including
procedures, time limits, grounds for dismissal of applications, restrictions
on appeals such as leave requirements, and fee rules including provisions
for waivers and exemptions;

(b) the adequacy
of the existing framework for ensuring that migration agents and members of
the legal profession do not encourage the bringing of unmeritorious migration
cases;

(c) the effect
that non-compliance with specific provisions of the Migration Act 1958
should have on review rights; and

(d) any other matter
that the review considers is relevant to the more efficient management and
disposition of claims relating to migration status.

Summary of Commission’s Submission

4. The Commission submits that there are a number of human
rights issues which are particularly ‘relevant to the more efficient management
and disposition’ of migration cases. The Commission’s primary concern
is that efficient management and disposition does not come at the cost of the
fundamental rights of people involved in migration litigation.

5. It is beyond the scope of these submissions to make suggestions
as to measures that may be taken to alter the current system of management and
disposition of migration cases. Rather the Commission’s submission sets
out some of the concerns that arise from a human rights perspective which should,
in the Commission’s view, be given careful consideration by the Review
in determining what, if any, changes may be appropriate.

6. The Commission is concerned that the current system for
the disposition of claims relating to migration status may be in breach of Australia’s
international obligations and that changes in the name of efficiency which have
the potential to further erode human rights may result in an increase in the
number of complaints to the UNHRC against Australia. This risks damage to Australia’s
international reputation, may impose a cost to the taxpayer in defending such
complaints and may undermine the confidence of the Australian public in the
administration of the Migration Act 1958 (Cth) (‘the Migration
Act’).

7. The following issues are the focus of the Commission’s
submission:

(i) the obligation
of ‘non-refoulement’;

(ii) the right to an effective domestic remedy for a breach of human rights;

(iii) the rights of children; and

(iv) the right to a fair hearing.

The Human Rights and Equal Opportunity
Commission

8. The Commission is a body constituted under the Human
Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC
Act’). The Commission’s functions are set out in section 11 of the
HREOC Act and include:

• inquiring into
  acts or practices which may be inconsistent with, or contrary to, any human
  right;
• promoting an understanding
  and acceptance of human rights in Australia;
• undertaking research
  to promote human rights;
• examining laws
  relating to human rights; and
• advising the
  federal Attorney-General on laws and actions that are required to comply with
  Australia’s international human rights obligations.

9. ‘Human rights’ are defined for the purpose
of the HREOC Act to mean ‘the rights and freedoms recognised in the Covenant,
declared by the Declarations or recognised or declared by any relevant international
instrument’ which are relevantly:

• International
  Covenant on Civil and Political Rights (ICCPR);
• International
  Labour Organisation Discrimination (Employment) Convention (ILO 111);
• Convention on
  the Rights of the Child (CRC);
• Declaration of
  the Rights of the Child;
• Declaration on
  the Rights of Disabled Persons;
• Declaration on
  the Rights of Mentally Retarded Persons; and
• Declaration on
  the Elimination of All Forms of Intolerance and of Discrimination Based on
  Religion or Belief.

10. For the purpose of this Review, the ICCPR and the CRC
are of greatest relevance.

11. The Commission notes that there are also other international
instruments which are relevant to the Review, namely :

• Universal Declaration
  of Human Rights (UDHR);
• Convention relating
  to the Status of Refugees (1951) and Protocol relating to the Status of Refugees
  (1967) (together ‘the Refugees Convention’); and
• Convention against
  Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Migration litigation

12. ‘Migration litigation’ in the context of the
Terms of Reference is taken by the Commission to refer to proceedings under
the Migration Act and Regulations concerning ‘the resolution of claims
relating to migration status, especially refugee status’. This includes
proceedings in the High Court of Australia, the Federal Court of Australia,
Federal Magistrates Court, the Migration Review Tribunal and the Refugee Review
Tribunal. The proceedings may involve merits review and/or judicial review.

13. The Commission confirms that it has been advised by the
Review that it does not intend to consider litigation that touches upon the
rights of adults and children in detention pursuant to the Migration Act, and
the legality of that detention (such as applications for habeas corpus [1]
and applications for orders from the Family Court in relation to children ).[2]
Clearly, further human rights issues would arise if the Review was to extend
to those matters.

14. Many decisions under the Migration Act concerning the resolution
of migration status, especially refugee status, affect fundamental human rights.
This includes decisions to:

• permit a person
  who is married to an Australian citizen to enter or remain in Australia;
• permit children
  to remain in Australia (formative years visas);
• refuse to grant
  a protection visa;
• detain a person
  and/or not to release a person on a bridging visa; and
• remove a person
  from Australia, and thus to return a person to the borders of another country,
  or to take them to a 'declared country’.

15. The Commission notes that the Administrative Review Council
(‘ARC’) is currently undertaking an inquiry, ‘The Scope
of Judicial Review’. The discussion paper was released in April 2003.
Many of the issues raised in the current inquiry touch upon the matters identified
by the ARC in its discussion paper. [3] It is beyond the scope
of this submission to address the issues raised in the ARC paper, but the Commission
notes that the Discussion Paper raises important considerations for the present
Review. [4]

16. This submission now addresses the key issues relevant to
human rights that the Commission has identified.

Non-refoulement

17. Migration litigation concerned with deciding questions
of whether a person is a refugee must ensure the fair determination of claims
for asylum. The prohibition on the forced return of a refugee – ‘refoulement’
- is recognised as one of the most fundamental principles in international refugee
law. Article 33 of the Refugees Convention states that no State ‘shall
expel or return a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.’
[5]

18. The prohibition of refoulement extends, however, beyond
the limited terms of the Refugees Convention. The United Nations Human Rights
Committee (UNHRC) has held consistently that a State will contravene its obligations
under the ICCPR if it removes a person to another country in circumstances in
which there is a real risk that their rights under the ICCPR will be violated.
[6]

19. This responsibility for foreseeable breaches of the ICCPR
in a country of return follows, in part, from the primary obligation of each
State party, pursuant to article 2 of the ICCPR, ‘to respect and ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognised in the present Covenant’. It contravenes the obligation
owed to all those within the territory of a State party to deliver a person
by compulsion into the hands of a third party who might inflict harm proscribed
by the ICCPR.

20. General Comment 20 to the ICCPR confirms that States parties
‘must not expose individuals to the danger of torture or cruel, inhuman
or degrading treatment or punishment upon return to another country by way of
their extradition, expulsion or refoulement’ (at paragraph 9).

21. The same approach should, by analogy apply to the rights
of children. Article 4 of the CRC obliges Australia to undertake all appropriate
legislative, administrative and other measures to implement the rights recognised
in that convention. That international obligations extend to indirect contraventions
of a convention is also a principle that has also been accepted in domestic
law. [7]

22. Article 3 of CAT also imposes an obligation of non-refoulement.
[8] It provides:

1. No State Party
shall expel, return (‘refouler’) or extradite a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.

2. For the purpose
of determining whether there are such grounds, the competent authorities shall
take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant
or mass violations of human rights.

23. In practical terms, therefore, the Commission submits
that any model of management and disposition of migration cases must contain
adequate procedural safeguards which ensure that decisions are made fairly and
are subject to appropriate levels of review. The Commission’s primary
concern is that a system which fails to do so will create an unacceptably high
risk of refoulement. Such refoulement would obviously have consequences of the
highest significance for the individual involved. It would also place Australia
in breach of its obligations under the Refugees Convention as well as ICCPR,
the CRC and CAT.

24. The Commission notes, in particular, that the Terms of
Reference require the Review to consider ‘the effect that non-compliance
with specific provisions of the Migration Act 1958 should have on review
rights’. The Commission is most concerned that review rights not be denied
absolutely on the basis of a failure to comply with procedural requirements.
Any such measures must, in the Commission’s submission, contain adequate
safeguards (for example, be subject to judicial discretion) to avoid an unacceptably
high risk of refoulement.

25. It must be remembered that persons making claims under
the Migration Act may have little familiarity with Australian legal processes,
and may face linguistic and cultural barriers to effectively managing their
application and advocating on their own behalf. This is particularly the case
with asylum seekers who may be fleeing from torture and trauma. There is also
the risk of non-compliance with procedural rules coming about through no fault
of the asylum seeker, thereby denying them rights of review which may be essential
to their protection from refoulement. [9]

26. The Commission acknowledges that refoulement contrary to
the ICCPR, the CRC or CAT is not presently a sufficient basis for a claim for
a protection visa under the Migration Act, unless the breach of rights feared
also gives rise to Australia’s protection obligations under the Refugees
Convention. This may result in the bringing of unmeritorious claims. The Commission
has previously observed that the introduction of a system for dealing with claims
in relation to refoulement under the ICCPR, the CRC and CAT may relieve some
of the pressure on the system caused by those cases being brought as protection
visa applications for want of another basis for seeking protection. [10]

27. While the discretion given to the Minister under s 417
of the Migration Act provides a form of protection from refoulement in contravention
of the ICCPR, the CRC or CAT, the Commission has raised significant concerns
about the adequacy of this as a form of protection. [11] The
Commission suggests that a more clearly defined system for the assessment of
such claims, independent of protection available for those falling within the
terms of the Refugees Convention, and including adequate provision for judicial
review, is to be preferred. [12]

Effective remedy – article
2(3) of ICCPR

28. The ICCPR also requires Australia to provide an effective
remedy for persons claiming that their rights have been breached. This will
be relevant in relation to the range of decisions under the Migration Act which
affect fundamental rights. The Commission submits that Australia can best comply
with this requirement for an effective remedy by having in place a system of
management and disposition of claims relating to migration status which contains
procedural safeguards to ensure a fair process and adequate access to judicial
review.

29. Article 2(3) of the ICCPR states:

Each State Party
to the present Covenant undertakes:

(a) To ensure
that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;

(b) To ensure
that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;

(c) To ensure
that the competent authorities shall enforce such remedies when granted.

30. This obliges States to develop effective remedies to prevent
future breaches of rights and freedoms guaranteed by the ICCPR as well as rectify
current breaches. [13]

31. In Winata v Australia [14],
for example, the UNHRC found that the proposed deportation of two parents of
an Australian citizen, who was 13-years-old, constituted a violation of, inter
alia, article 17 of the ICCPR which prohibits arbitrary interference with the
family. The UNHRC stated that Australia was under an obligation to provide the
authors with an effective remedy which included properly considering the application
for parent visas with due consideration for the status of the child as a minor
(such consideration being required by article 24 of the ICCPR). The UNHRC further
noted that Australia was ‘under an obligation to ensure that violations
of the ICCPR in similar situations do not occur in the future.’ [paragraph
9].

32. While the wording of article 2(3) leaves State Parties
some degree of choice regarding the nature of any ‘effective remedy’,
in some cases, a formal judicial appellate system is the only remedy that will
meet the requirement of effectiveness. [15]

33. The terms of article 2(3)(b) make it clear that State parties
are obliged to give priority to judicial remedies. It appears from the travaux
préparatoires to the ICCPR that the words ‘develop the possibilities
of judicial remedy’ were introduced as a form of ‘progressive realisation’
clause which recognized that ‘…while judicial remedy was preferable,
it might be impossible to impose upon States the immediate obligation to provide
such remedies.’ [16]

34. Hence, while there is not an ‘immediate obligation’
to develop judicial remedies, there is an obligation to provide such remedies
over time. An analogous requirement is imposed upon State Parties to the
International Covenant on Economic, Social and Cultural Rights. State Parties
to that Covenant are under an obligation to take steps with a view to ‘achieving
progressively the full realization of the rights recognized in the present Covenant’.
[17] The Committee for Economic, Social and Cultural Rights
(CESCR) has interpreted that obligation as requiring a continuous improvement
of conditions over time without backward movement of any kind – which
some commentators have described as a ‘ratchet effect’. [18]

35. Commentators have noted that the CESCR’s views suggest
that only two forms of justification will avoid a retrogressive measure constituting
a breach: first, an economic crisis such that, even by using the maximum of
available resources, a deterioration of the situation is inevitable. Second,
where a retrogressive measure is taken for the purpose of improving the situation
with regard to the ‘totality of the rights provided for in the Covenant’.
[19]

36. By analogy, in the context of article 2(3)(b) of the ICCPR,
any deliberate measures to remove judicial review as a remedy for rights guaranteed
by the Covenant would need to be justified [20] to avoid that
action being in breach of a State party’s obligations under that article.

37. The significance of ensuring access to judicial remedies
for breaches of the ICCPR may also be seen in the jurisprudence of the UNHRC
regarding article 5(2)(b) of the First Optional Protocol to the ICCPR. That
article provides that a person may not use the optional protocol complaint system
of the ICCPR without first exhausting ‘all available domestic remedies’.
The UNHRC has interpreted that article as requiring a person to exhaust all
available effective domestic remedies.

38. Article 5(2)(b) of the Optional Protocol and article 2(3)(b)
of the ICCPR are thus closely related: [21] if effective domestic
remedies have been provided as required by article 2, they must be exhausted
prior to any complaint being brought to the UNHRC. It follows that the UNHRC’s
consideration of effectiveness for the purposes of article 5(2)(b) of the Optional
Protocol should be seen as co-extensive with the requirement for effectiveness
in article 2(3)(b). It is therefore significant to note that, when discussing
effectiveness in the context of article 5(2)(b) of the Optional Protocol, the
UNHRC has stated:

The Committee
recalled that domestic remedies must not only be available, but also effective,
and that the term ‘domestic remedies’ must be understood as referring
primarily to judicial remedies. The Committee considered that the effectiveness
of a remedy also depended on the nature of the alleged violation. In other
words, if the alleged offence is particularly serious, as in the case of violations
of basic human rights, in particular the right to life, purely administrative
and disciplinary remedies cannot be considered adequate and effective. [22]

39. The jurisprudence of the European Court of Human Rights
in relation to the similarly worded article 13 of the Convention for the Protection
of Human Rights and Fundamental Freedoms is also relevant.[23]
In KIass v Germany (1978) 2 EHRR 214, the Court found that the question
of effectiveness is to be answered by considering the substance of the powers
and procedures of an ‘authority’ (at [63]):

In the Court’s
opinion, the authority referred to in Article 13 (art.13) may not necessarily
in all instances be a judicial authority in the strict sense… Nevertheless,
the powers and procedural guarantees an authority possesses are relevant in
determining whether the remedy before it is effective.

40. The European Court for Human Rights has accordingly found
that judicial review of an extradition decision was an effective remedy on the
basis that the English courts conducting the review could rule an exercise of
executive discretion unlawful on the ground that it is tainted with illegality,
irrationality (in the sense of Wednesbury unreasonableness; Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223)
or procedural impropriety, and would have jurisdiction to quash a challenged
decision to extradite a person where it was established that there was a serious
risk of inhuman or degrading treatment, on the ground that in all the circumstances
of the case the decision was one that no reasonable Secretary of State could
take. [24]

41. In Vilvarajah v United Kingdom [25],
the Court reiterated the significance of an asylum seeker’s access to
remedies in the form of review by a superior court:

… the courts
have stressed their special responsibility to subject administrative decisions
in this area to the most anxious scrutiny where an applicant's life or liberty
may be at risk...

While it is true that there are limitations to the powers of the courts in
judicial review proceedings… the Court is of the opinion that these
powers, exercisable as they are by the highest tribunals in the land, do provide
an effective degree of control over the decisions of the administrative authorities
in asylum cases and are sufficient to satisfy the requirements of Article
13.

42. The decision in Chahal v United Kingdom (1996)
23 EHRR 413 confirms that the mere existence of a judicial remedy is not determinative
– any remedy must be ‘effective’. In that case the availability
of judicial review from a deportation decision did not provide an effective
remedy because the court was limited to satisfying itself that the Home Secretary
had balanced the risk to the individual against the danger to national security.
[26]

43. The Court in Chahal also emphasised that the nature
of harm feared by an applicant is relevant in determining ‘effectiveness’
of the remedy (at [151]-[152]):

[G]iven the irreversible
nature of the harm that might occur if the risk of ill-treatment materialised
and the importance the Court attaches to Article 3 (art. 3), the notion of
an effective remedy under Article 13 (art.13) required independent scrutiny
of the claim that there exist substantial grounds for fearing a real risk
of treatment contrary to Article 3 (art. 3)…

Such scrutiny
need not be provided by a judicial authority but if it is not, the powers
and guarantees which it affords are relevant in determining whether the remedy
before it is effective…

44. The Commission is therefore concerned that any measures
taken to reform management and disposition of migration litigation not remove
or further limit rights to review, particularly those involving judicial review.
Such rights may play an important part in ensuring that Australia complies with
its obligations to provide an effective remedy for any breaches of human rights
which may arise in the course of the process of resolution of migration or refugee
status.

45. The Commission has previously expressed concern about the
adequacy of the current system for the disposition of cases under the Migration
Act and the effect of the ‘privative clause’ contained in s 474
of that Act. [27] Some of these concerns were met by the manner
in which the High Court interpreted the effect of the ‘privative clause’
on its jurisdiction in the matter of Plaintiff S157/2002 v Commonwealth
of Australia. [28] However, the introduction of a clause
(s 422B) which has the effect of removing the requirement to comply with key
elements of the rules of natural justice in relation to decisions under the
Migration Act raises further concerns about the ability of the current system
to adequately protect the rights of those involved and to provide an effective
remedy for any breach. The Commission maintains, therefore, that the current
limitations placed on review rights, particularly those involving claims for
asylum, may already place Australia in breach of its international obligations.
The Commission submits that any measures suggested as a result of the present
Review should not, with respect, further undermine the procedural rights of
people in relation to their migration and/or refugee status.

46. The Commission again notes its concern with any measures
which would deny review rights on the basis of a failure to comply with procedural
requirements under the Migration Act. Such measures may render any remedy for
a breach of human rights ineffective in the absence of adequate safeguards (such
as the existence of judicial discretion in relation to compliance with those
requirements).

Rights of children

47. Special consideration
should be given in any review of migration litigation to the protection of the
rights of children and the provision of appropriate assistance to them, particularly
in cases where they are seeking refugee status.

48. One of the overarching
requirements of the CRC is that in all actions concerning children (defined
as being persons under the age of 18), the ‘best interests’ of the
child shall be a primary consideration (article 3(1)).

49. Article 22 of the CRC
makes specific provision for children asylum seekers. It provides:

1. States Parties shall
take appropriate measures to ensure that a child who is seeking refugee status
or who is considered a refugee in accordance with applicable international
or domestic law and procedures shall, whether unaccompanied or accompanied
by his or her parents or by any other person, receive appropriate protection
and humanitarian assistance in the enjoyment of applicable rights set forth
in the present Convention and in other international human rights or humanitarian
instruments to which the said States are Parties.

50. In the context of migration
litigation, the appropriate protection and humanitarian assistance required
by article 22 may require consideration of the manner in which proceedings involving
children are conducted, including issues such as access to separate representatives.
Article 20 of the CRC requires that ‘special protection and assistance’
be provided to children who are unaccompanied by their family.

51. Article 12 of the CRC
also contains specific rights for children to be heard in any judicial and administrative
proceedings which affect them – either directly or through a representative
or appropriate body.

52. By way of comparison,
68L of the Family Law Act 1975 (Cth) makes provision for separate representation
in family law proceedings in which the child’s best interests or welfare
are a relevant consideration. Similarly, in proceedings under the Hague Convention
on Civil Aspects of Child Abduction, the High Court has indicated that children
should generally be separately represented: De L v Director-General, New
South Wales Dept of Community Services. [30]

53. The Commission suggests
that the guidelines which apply to appointing a separate representative in Family
Court proceedings are directly applicable to migration matters involving children:
see Re K. [31]

54. The Commission submits
that the rights of children are of particular relevance when considering any
measures relating to procedures, time limits and the effect that non-compliance
with specific provisions of the Migration Act should have on review rights.
The vulnerability of children seeking asylum, particularly those who are unaccompanied,
may require special flexibility in relation to rules and procedures. Any measure
which denies children review rights on the basis of a failure to comply with
specific provisions of the Migration Act should be very carefully scrutinised
to ensure that it does not breach article 22 of the CRC and allows for a proper
consideration of the best interests of the child, consistent with article 3(1).

Right to a fair hearing

55. The relevant human
rights instruments address both substantive and procedural protections. In addition
to guaranteeing a substantive right, any determination of that right should
ensure that the parties receive a fair hearing.

56. Article 14(1) of the
ICCPR guarantees a right for all persons to a fair hearing in the determination
of a ‘suit at law’. It provides:

All persons shall be
equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. (emphasis
added)

57. In General Comment
13, the United Nations Human Rights Committee had said that the provisions of
article 14 apply to all courts and tribunals within the scope of that article
whether ordinary or specialized. This includes proceedings challenging administrative
decisions such as those taken under the Migration Act and judicial review. [32]

58. Any review of migration
litigation should ensure that the determination of claims is consistent with
the right to a fair hearing. The elements of a ‘fair hearing’ are
not set out in any detail in article 14(1) of the ICCPR with respect to civil
claims. However, the matters set out in article 14(3) concerning criminal trials,
particularly where the person concerned is in detention awaiting the final determination
of his or her claim are apposite in migration cases. The elements of fair trial
include:

• a resolution of proceedings
  without undue delay
• adequate time and facilities
  for the preparation of the case and to communicate with counsel of his or
  her own choosing;
• legal assistance and
  in any case where the interests of justice so require, and without payment
  by if the applicant does not have sufficient means to pay for it;
• free assistance of
  an interpreter if the applicant cannot understand or speak the language used
  in court; and
• the right to appeal
  on questions of law.

59. Some of the issues
identified as problematic in migration litigation are complexity, costs and
delay. In the Commission’s view, however, the conduct of migration litigation
should reflect all the elements of a fair trial. This right should not be compromised
by reason of simplicity, cost or convenience.

60. The Commission notes
further that the terms of reference require regard to be had for the need to
‘reduce the large numbers of unmeritorious migration cases while preserving
access to justice for cases with merit’ (emphasis added). The Commission
strongly supports the goal of preserving access to justice, but submits, with
respect, that it is fundamentally flawed to propose that access to justice should
only be afforded to ‘cases with merit’. Any attempt to distinguish
those cases deserving of access to justice (those ‘with merit’)
and those not deserving such access (those ‘without merit’) is flawed
as it is only access to justice which can properly determine the merit of any
given case.

61. This is not to support
unmeritorious litigation. However, the Commission submits that the Inquiry should
be guided by the need to preserve access to justice for all. The process
of determining merit necessarily takes place on a case-by-case basis and it
is suggested that it is neither possible nor desirable to attempt to define
‘merit’ before a case has been properly and fairly determined. It
can, of course, be observed that many cases may be judged as ‘lacking
in merit’ until they are ultimately upheld. [33]

62. One measure which the
Commission submits might both reduce the number of unmeritorious claims brought
before the Courts and also enhance the protection of human rights would be to
increase the availability of legal advice, assistance and representation available
to individuals involved in migration litigation.

63. The Commission notes
further that there are existing provisions for applications to be struck out
by Courts in the event that they are unmeritorious. The Federal Court Rules,
for example, provide that an application may be stayed or dismissed by a Court
where no reasonable cause of action is disclosed, the proceeding is frivolous
or vexatious or the proceeding is an abuse of the process of the Court (rule
20.2).

64. The Federal Court has,
however, raised concerns in relation to the ability of a single judge to dismiss
appeals which fail to disclose a ground of appeal. In D'Ortenzio v Telstra,
[34] O’Loughlin J held that the power to stay or strike
out an appeal was not included in section 25 of the Federal Court Act 1976
(Cth), and stated (at [583]):

I regard this question
as one of practical and increasing importance. The number of self-represented
litigants who are approaching the Full Court is increasing and if a single
judge is empowered to deal with inadequate documents or deficiencies in documents
by using the powers that are contained in Order 20, r 2(1), it would greatly
assist the expeditious handling of the Court's business.

65. The Australian Law
Reform Commission’s Report ‘Managing Justice’ considered this
concern and recommended that s 25 of the Federal Court Act be amended
to allow a single judge in an appeal, to exercise powers to stay or dismiss
an appeal where no available ground of appeal is disclosed. [35]
The Commission considers that such a proposal would be an appropriate measure
to improve efficiency in the management and disposition of claims relating to
migration status, which would still ensure access to justice.

66. In the context of
the right to a fair hearing, the Commission again notes its concern in relation
to the cultural and linguistic difficulties which are frequently faced by applicants
in migration matters. In the Commission’s view, care should be taken to
avoid the imposition of procedural obligations which may have the effect of
compounding these difficulties.

Conclusion

67. The Commission’s
overarching concern is that restrictions on the right to a fair hearing and
limitations on the rights of review risk placing Australia in breach of its
human rights obligations. The Commission reiterates its concern that changes
which lead to breaches of human rights may result in an increase in the number
of complaints to the UNHRC against Australia, risking damage to Australia’s
international reputation, imposing a cost to the taxpayer in defending such
complaints and potentially undermining the confidence of the Australian public
in the administration of the Migration Act.

68. The Commission therefore
urges that an appropriate balance be struck between the goal of efficiency and
the need to protect fundamental human rights.

Human Rights and
Equal Opportunity Commission

21 November 2003

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1. For
example, SHDB v Godwin & Ors (A253/2003), Minister for Immigration
and Multicultural and Indigenous Affairs v Al Khafaji (A254/2003) and Behrooz
v Secretary of the Department of Immigration and Multicultural and Indigenous
Affairs (A255/2003), currently before the High Court.

2. Minister for Immigration and Multicultural and Indigenous
Affairs v B and Anor. (2003) 199 ALR 604 FamCA (FC)

3. See in particular the discussion about the grounds for judicial
review, issues in migration litigation (at pages 74- 75, 79 – 80).

4. The Commission notes also previous reviews conducted by the
Administrative Review Council into the issue of federal litigation, including
migration litigation which may be of relevance to the present Review:

• Appeals from the
  Administrative Appeals Tribunal to the Federal Court, 1997;
• Access to Administrative
  Review by Members of Australia's Ethnic Communities,
  1991;
• Review of the Administrative
  Decisions (Judicial Review) Act: the Ambit of the Act,
  1989;
• Review of Migration
  Decisions, 1985;
• Rights of Review under
  the Migration Act 1958 and Related Legislation: Interim Report on the Constitution
  of the Administrative Appeals Tribunal, 1983; and
• Citizenship Review
  and Appeals System,
  1980.

5. See
also reports of the Australian Law Reform Commission:

ALRC 92 The Judicial Power of the Commonwealth: A Review of the Judiciary Act
1903 and Related Legislation

ALRC 89 Managing Justice: A review of the federal civil justice system, in particular
7.129 – 7.133 and the recommendations to that report.

See also article 14(1) of the UDHR which provides that everyone has the right
to seek and to enjoy in other countries asylum from persecution.

6. See: GT v Australia, Communication No 706/1996,
UN Doc CCPR/C/61/D/706/1996; C v Australia Communication No 900/1999,
UN Doc CCPR/C/76/D/900/1999; Kindler v Canada, Communication No. 470/1991, UN
Doc CCPR/C/48/D/470/1991; Ng v Canada, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991;
Cox v Canada, Communication No. 539/1993, UN Doc CCPR/C/52/D/539/1993.

7. R v Secretary of State for the Home Department;
Ex parte Bugdaycay [1987] AC 514 cited with approval in Minister for
Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543,
558-559 (von Doussa J).

8. The article was found to have been breached by Australia
in Elmi v Australia, Communication No 120/1998, UN Doc CAT/C/22/D/120/1998.

9.
See, for example, Kucuk v Minister for Immigration & Multicultural Affairs
[2001] FCA 535, where a facsimile was sent by detention centre staff to the
wrong number resulting in the application being lodged out of time and being
found to be incompetent. The Commission also observes that attempts to curtail
review rights before the Federal Court by the imposition of time limits may
have resulted in many more cases coming before the High Court as its jurisdiction
to grant the constitutional remedies of mandamus, certiorari and prohibition
cannot be curtailed in this way; see Plaintiff S157/2002 v Commonwealth
of Australia (2003) 77 ALJR 454. The Commission suggests that these existing
measures have therefore not necessarily enhanced the efficient management of
migration litigation before the courts. Further measures of a similar nature
may also fail to have the intended effect.

10. See the Commission’s submission to the Senate Select
Committee on Ministerial Discretion in Migration Matters: http://www.humanrights.gov.au/human_rights/migration_matters.html.

11. Above, n 10

12. Ibid, section 7.

13. See, for example, C v Australia, Communication No 900/1999,
UN Doc CCPR/C/76/D/900/1999, [10] where the UNHRC noted that the ‘State
party is under an obligation to avoid similar violations in future’. See
also Herrara Rubio v Colombia, Communication No 161/1983, UN Doc Supp
No 40 (A/43/40). M Nowak UN Covenant on Civil and Political Rights: CCPR
Commentary (1993), NP Engel, 62-63.

14. Communication No. 930/2000, UN Doc CCPR/C/72/D/930/2000.

15. M Nowak, above n 13, 60.

16. Proceedings of the Commission on Human Rights, E/CN.4/SR.328.

17. See article 2(1)

18. M Craven ‘The International Covenant on Economic
Social and Cultural Rights’ (1995), Clarendon p131. See also CESCR General
Comment No 3: …any deliberately retrogressive measures…would require
the most careful consideration and would need to be fully justified by reference
to the totality of the rights provided for in the Covenant and in the context
of the full use of the maximum of available resources; (1990) UN Doc E/1991/23

19. M Craven, op cit, page 132

20. As a measure necessary to cope with a drastic resource
shortage or to improve the position regarding the totality of other rights under
the ICCPR.

21. As has been noted by Nowak, op cit, page 58.

22. Vicente v Colombia, Communication No 612/1995,
UN Doc CCPR/C/60/D/612/1995.

23. Article 13 provides that ‘Everyone whose rights and
freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity’

24. Soering v United Kingdom 11 EHRR 439

25. Op cit. The approach in Soering and Vilvarajah
has been followed in the recent cases of Smith and Grady v United Kingdom
(1999) 29 EHRR 493 and Hilal v United Kingdom (2001) 33 EHRR 2.

26. Ibid at para 153. Similarly, the Court found that a right
of appeal against the deportation decision to an advisory panel (prior to the
judicial review stage) was not an effective remedy because ‘the advisory
panel could not be considered to offer sufficient procedural safeguards for
the purposes of Article 13’. In proceedings before the advisory panel
the applicant was not entitled to legal representation, was only given an outline
of the grounds for the notice of intention to deport and the decision of the
panel was neither binding upon the Home Secretary nor was it disclosed to the
applicant.

27. See, for example, the Commission’s submissions to
the Full Federal Court in NAAV and NABE v Minister for Immigration and Multicultural
Affairs: http://www.humanrights.gov.au/legal/guidelines/submission_naav.html.


28. (2003) 77 ALJR 454.

29. See Australian Law Reform Commission and Human Rights and
Equal Opportunity Commission, Seen and Heard: Priority for Children in the
Legal Process (1997) ALRC 84; Family Law Council, Representation of
Children in Family Law Proceeding (1989); Family Law Council, Involving
and Representing Children in Family Law (1996); Family Court of Australia,
Representing the Child's Interests in the Family Court of Australia (September
1996).

30. (1997) 21 Fam LR 432.

31. (1994) FLC 92–461 at 80,773.

32. See also VMRB v Canada (235/87) referred to in
Joseph et al at page 282 [14.07] and Kwame Williams Adu v. Canada CCPR/C/60/D/654/1995.

33. For a recent example, see SDAV v Minister for Immigration
& Multicultural & Indigenous Affairs; Minister for Immigration &
Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129.

34. (1998) 154 ALR 577.

35. ‘Managing Justice: a review of the federal civil
justice system’, ALRC Report No 89, available at: http://www.austlii.edu.au/au/other/alrc/publications/reports/89/.

Last
updated 21 April 2004.