CD004_emailBY DOUGLAS MCDONALD-NORMAN

In the United Kingdom, the Immigration and Asylum Chamber of the United Kingdom Upper Tribunal (UKUT) produces ‘country guidance’ decisions on contemporary conditions in other nations for the purposes of determining refugee status. These decisions govern government decision-makers’ findings as to which groups are and are not at risk in particular countries (or which factors may expose individuals to risks). They bind the UKUT itself until a conscious decision is made to depart from earlier findings. These decisions also form the basis for the UK Home Office’s Country Information and Guidance reports, used by that department’s officials in deciding individual claims for asylum. A full list of current country guidance decisions is available online.

Despite powers under the Migration Act 1968 (Cth) for equivalent decisions to be promulgated in Australia, Australia currently has no equivalent to the UK’s country guidance decisions. This post considers the history and use of country guidance decisions in the UK, and examines the potential benefits and drawbacks of their use in Australia. In particular, I consider the the value of consistency and certainty in decision-making promoted by country guidance decisions against the fact that these decisions may substantially increase the difficulty of proving that individual asylum seekers are genuine refugees.

Country Guidance in the United Kingdom

The UK Asylum and Immigration Tribunal (UKAIT) began formally designating decisions as ‘country guidance decisions’ in 2004 (redesignating various previous decisions of itself and of the UK Immigration Appeal Tribunal in the process). That role has now been assumed by the UKUT. These decisions form an important mechanism for consistency in determining refugee status in Britain.

The existence of country guidance decisions does not oust entirely the role and discretion of individual decision-makers or prevent any form of inconsistency. Decision-makers must still determine whether asylum seekers’ accounts of their experiences and fears are credible (that is, whether they are telling the truth) and decide which risk categories or factors apply accordingly. It is considerably more difficult, even potentially impossible, to impose consistency upon credibility findings, given the extent to which these findings often derive from the subjective assessment of the characteristics and circumstances of individual applicants. Nonetheless, country guidance decisions reduce the potential for:

inconsistency of approach between decision makers as regards the degree of risk on return [resulting from] different readings of the situation appertaining in the relevant country’.[1]

One of the problems with such consistency, of course, is that country guidance decisions may outlive their utility as conditions in asylum seekers’ countries of origin change rapidly.[2]

Country guidance decisions are often reached after lengthy and exacting consideration of evidence. For example, the UKUT’s current country guidance decision on Sri Lanka – GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ and Others)” – followed hearings over the course of nine days. The UKUT received over 5000 pages of documentary evidence and heard oral evidence from 17 ‘expert and country witnesses’ and two of the appellant asylum seekers (as well as statements or reports from four other witnesses). Nine counsel appeared for various parties. (The appearance of counsel in the UKUT is itself a striking contrast between Australia’s quasi-inquisitorial system of fact-finding in refugee status determination and UK procedures.) The resulting decision in GJ and others consists of 457 paragraphs plus 13 appendices. The UKUT’s most authoritative country guidance decision for Somalia similarly involved appearances from seven counsel, eight days of hearing and consideration of 1266 items of documentary evidence, resulting in a decision that is 267 pages long.

Robert Thomas observes that country guidance decisions have been motivated in part by the ‘variable quality’ of representation of asylum seekers in the UK, with country guidance decisions ensuring that decision-makers are provided with appropriately detailed country information.[3] Substantial cuts to Australia’s IAAAS scheme, which provided publicly-funded legal assistance to asylum seekers, may render such decisions increasingly attractive in this country; in an environment in which more than 30 per cent of applicants to the Migration and Refugee Division (MRD) of the AAT lack representation, it is arguably better that one ‘test case’ (with representation) lead to the thorough assessment of all available country information (and provide conclusions accordingly) than that the success or failure of individual claims depend on the quality of the country information that those applicants can advance (with the assistance of their legal representatives). The effects of such inequality may be mitigated, but not eliminated, by Australia’s quasi-inquisitorial system of refugee status determination.

The clarity afforded by greater consistency of decision-making is not, however, an unalloyed good in terms of its human consequences. As I have written elsewhere, GJ and Others adopts a relatively restrictive view of which individuals remain at risk in post-war Sri Lanka as compared to other sources of country information, including the UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“the Eligibility Guidelines”). Thomas notes a broader perception that country guidance decisions:

‘limi[t] rather than exten[d] the range of people who qualify for international perception’, and that such decisions are ‘negative toward appellants’.[4]

I previously worked as a solicitor and migration agent for a law firm funded by IAAAS. Many clients who satisfied risk criteria under the Eligibility Guidelines (or whose experiences reflected those chronicled by NGOs like Human Rights Watch) did not fall within the narrower categories set out in GJ and Others (which focus upon contemporary perceptions of threats to Sri Lankan national unity, rather than viewing past involvement in or connections to the Sri Lankan Civil War as risks in themselves). Some of these clients were found to be at risk if returned to Sri Lanka even without satisfying the GJ and Others standard. Of course, there are potentially applicants who would have satisfied the standards set out in country guidance decisions but who might not have been able to satisfy decision-makers of that fact because they lacked representation. This inconsistency is inherent in Australia’s lack of country guidance decisions (or equivalent) – that decision-makers may reach different conclusions as to circumstances prevailing in the same country, whether on the same or different evidence.

Country Guidance in Australia?

Section 420B of the Migration Act permits the President of the Administrative Appeals Tribunal (‘AAT’) or the head of the Migration and Refugee Division (‘MRD’) of the AAT to designate a decision of the AAT or the former Refugee Review Tribunal (‘RRT’) as a ‘guidance decision’, ‘to be complied with by the [AAT] in reaching a decision’ in a review unless the AAT ‘is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision’. As far as I am aware, this power has never been exercised.

The closest equivalent to a ‘country guidance’ decision in Australia is “SRPP” and MIMIA [2000] AATA 878 (‘SRPP’). This decision is a rare example of the exercise of the Principal Member of the (former) RRT’s discretion to refer particular issues to the AAT for hearing; the case was said to raise ‘important issues of general application’. The AAT’s decision considers, among other things, the question of whether a citizen of East Timor would have been able to receive ‘effective protection’ (including rights of entry and residence) in Indonesia and Portugal. This decision illuminates the potential benefits that may derive from comprehensive consideration of particular issues, assisted by counsel of the highest quality; Senior Counsel appeared for both the appellant and the Minister in SRPP. (Generally, only registered migration agents can provide assistance to applicants before the AAT MRD.) SRPP did not amount to a binding ‘factual precedent’ upon Australian decision-makers;[5] Peter Mares has nonetheless argued that the decision was significant, in that:

 enormous intellectual and financial effort was expended to argue the issues through to a clear and conclusive outcome.[6]

Even without formal Australian country guidance decisions, the decisions of the UKUT (and its predecessor tribunals) have already influenced Australian decision-making. GJ and Others (as noted above, the UK’s current country guidance decision on Sri Lanka) has been by far the most frequently-used country guidance decision in Australia,[7] having been cited by the AAT (since the amalgamation of federal tribunals) and by the former RRT. Citations of GJ and Others have not prevented some applicants who do not satisfy its risk criteria from still being recognised as refugees in Australia (even where this is not explicitly noted in decisions themselves).[8] Australian decision-makers in the Department of Immigration and Border Protection (‘DIBP’) and the AAT has gained the benefit of extensively researched UK country guidance decisions without needless replication of time and resources (potentially to arrive at the same conclusions), giving decision-makers discretion either to ‘follow’ UK decisions or to reach their own conclusions.

Australian decision-makers (within the DIBP and the AAT) are not, of course, required to consider UKUT decisions. They are, however, required to have regard (by Ministerial Direction No 56) to have regard to country information reports prepared by the Department of Foreign Affairs and Trade (‘DFAT’). I have previously criticised the methodological limitations faced by DFAT in producing these reports,[9] including as a result of DFAT’s limited capacity to follow up on the treatment of asylum seekers returned to other nations. These limits to available information are compounded by opacity in how these reports are produced; even given DFAT’s understandable unwillingness to identify confidential sources, they have no equivalent to the UKUT’s commendable openness in conducting hearings (in which both appellants and the government can state their views on country conditions) and listing the sources of evidence considered in reaching their decisions. To the extent that DFAT reports are a source of consistency, these limits to transparency (and resulting possible limits on information inputs) demonstrate that consistency is not of itself inherently a source of just outcomes.

Conclusion

There are undeniable advantages to the use of country guidance decisions. Applicants are placed on notice as to the state’s present views as to circumstances in particular countries; this both leads to greater certainty in deciding whether to make, or persist with, applications for protection and greater clarity in how such claims are pleaded. A system without country guidance decisions is one in which individual decision-makers may develop idiosyncratic views on which groups are likely to face harm if removed to their countries of origin (whether to the benefit or detriment of asylum seekers), with little or no possibility for correction (given the limited scope of judicial review to examine the ‘merits’ of these decisions).

Nonetheless, the procedural advantages represented by consistency and clarity are countered by the potential substantive injustices resulting from the use of country guidance decisions (or equivalents). (‘Substantive injustice’ is probably too mild a word for the possibility of being returned to one’s country of origin and detained, tortured or killed.) Such decisions, if adopted in Australia, must be made in as open and transparent a manner as is consistent with the anonymity of applicants; they must be made following consultation of a wide range of sources, which must be clearly identified in the decision itself (where possible), and must follow an opportunity for all interested parties (the appellant, the Department, and where appropriate amicus curiae) to ensure their perspectives are heard; they must be regularly reviewed and allow decision-makers sufficient flexibility, in how they are phrased, to permit exceptional individual circumstances to be recognised; and, crucially, these decisions must be made with an eye towards the potential dire (and irreparable) consequences for individual applicants for asylum inherent in every country guidance decision.

Douglas McDonald-Norman is a tipstaff at the Supreme Court of New South Wales. He previously worked as a solicitor and migration agent. The views expressed are his own and not those of his employers, past or present. He thanks Charlotte Saunders for her assistance in drafting this post.

Suggested citation:  Douglas McDonald-Norman, ‘Country Guidance Decisions in the UK and Australia’ on AUSPUBLAW (7 July 2016) <https://auspublaw.org/2016/07/country-guidance-decisions/>

 

[1] Robert Thomas, ‘Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom’ (2008) (2008) 20 International Journal of Refugee Law 489, 494.

[2] Ibid 519.

[3] Ibid, 497-498.

[4] Ibid 523.

[5] Peter Mares, Borderline: Australia’s treatment of refugees and asylum seekers (2001) 134.

[6] Ibid.

[7] Although this is borne out by the author’s experiences in practice, it is also evident from AustLII. A search for UKUT w/5 CG (that is, ‘UKUT’ within 5 words of ‘CG’, a marker used in the titles of country guidance decisions) provides 95 results (predominantly from the AAT and RRT), of which most are references to GJ and Others. A search for UKUT w/5 CG not GJ provides only 19 results (of which only 3 are from the AAT and 6 from the RRT). No other decision of the UKUT or UKAIT has enjoyed similar currency.

[8] See, eg, 1402036 (Refugee) [2015] AATA 3877.

[9] Douglas McDonald, ‘Simply Impossible: Plausibility assessment in refugee status determination’ (2014) 39(4) Alternative Law Journal 241, 244-245.