Fairness and Efficiency in the Migration ‘Fast Track’ Process

Maria O’Sullivan

14.05.18

Case law dealing with migration has been highly influential in the development of administrative law in Australia, particularly in relation to procedural fairness. The High Court has developed a robust set of procedural fairness principles in the migration context and has, notably, done so against a backdrop of governmental attempts to limit procedural protections (as illustrated by landmark cases such as Miah and Plaintiff M61).

However, Parliament has often responded to these cases by codifying a particular interpretation of procedural fairness. That is, Parliament will include statutory provisions which purport to be an exhaustive statement of what procedural fairness does, and does not, require. While perhaps preferable to those situations where Parliament simply excludes procedural fairness altogether, these codified requirements are often more limited than those that the courts would otherwise imply. As a result of this ‘super codification’ of procedural fairness, there is now very little room for the courts to add to these statutory requirements.

The recent case of Plaintiff M174 v Minister for Immigration [2018] HCA 16 illustrates the problems which are raised by this level of statutory codification. The case raises concerns about the balance struck between fairness and efficiency in the Migration Act and its ‘Fast Track’ system, but also the way in which increasing statutory codification impacts the ability of the High Court to apply common law principles of administrative law.

The ‘Fast Track’ system – Fairness and Efficiency

Plaintiff M174 deals with the so-called ‘Fast Track system’ – a somewhat controversial process introduced in late 2014. The fast track process is unusual as it provides only a limited form of merits review of this category of decision: evidence and arguments are typically considered in a paper based process with no oral hearing. In some instances, there is no independent merits review at all (for ‘excluded fast track review applicants’). Fast track cases are also different to other migration decisions in that they are reviewed by a special body. Non-fast track decisions are reviewed by the Migration and Refugee Division of the AAT; fast-track decision are reviewed by the Immigration Assessment Authority (IAA), an independent office within that Division. Plaintiff M174 is an important decision as it represents the first time that the High Court has adjudicated upon this new ‘fast track’ process.

The fast track system seeks to prioritise efficiency by setting out limited procedural obligations for the review body (Migration Act, Pt 7AA). The most significant statutory limitation is that the IAA is only obliged to consider information that was available to the Department when it made the decision to refuse the visa. The IAA is not ordinarily permitted to accept new information from the applicant, nor interview them. The IAA may depart from these requirements in certain, limited cases but there must be ‘exceptional circumstances’ to justify this. Furthermore, these provisions are stated in the legislation to be ‘an exhaustive statement of the requirements of the natural justice hearing rule’ — that is, procedural fairness — in relation to reviews conducted by the IAA (Migration Act, s 473DA).

These are matters which go directly to fairness – particularly as migration cases typically turn on findings about an applicant’s credibility and the veracity of country information. In this context, it is important to understand that the IAA process is premised on an assumption that applicants should present all their claims and evidence at the first interview conducted by the Department of Immigration. The fast track system assumes applicants will receive procedural fairness at that stage and, as such, it is unnecessary for the granting of full procedural fairness (such as an oral interview) at the review stage. There are so many things that people who are thinking about applying for immigration status must remember and keep an eye on if they want to have the best possible chance of being successful. Once you’ve submitted the relevant petition, you will be able to see the progress of your status, via the Visa Bulletin which also allows you to estimate how long you will have to wait for your green card to be issued. This should help take the pressure off the IAA when dealing with other work.

The rationale given for these limitations is that the IAA is dealing with the ‘legacy caseload’ of approximately 30,000 Unauthorised Maritime Arrivals (persons who arrived by boat without a visa between 2012 and 2014), and the resultant need for efficiency. This is reflected in the objectives of the IAA in s 473FA of the Migration Act. Significantly, whilst there is an explicit reference to efficiency, there is no mention of fairness:

473FA How Immigration Assessment Authority is to exercise its functions

The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

This is of importance to the litigation in Plaintiff M174, as the reference to efficiency in the objects clause was a significant consideration in the judgement of Justice Edelman (discussed below).

Before turning to Plaintiff M174 itself, it is worth noting that the need to avoid delays in refugee decision-making and to pursue efficiency has been recognised in a number of comparable jurisdictions. Indeed, the introduction of a fast track system in Australia follows similar moves elsewhere, notably the use of ‘accelerated procedures’ in the EU Procedures Directive and in Canada. However, I would question whether the balance between fairness and efficiency in the Australian fast track system has been correctly struck. In particular, the absence of a right to an oral interview is concerning given that the credibility of an applicant is typically a central factor in many refugee decisions.

The High Court decision in Plaintiff M174

The Facts

This case centred upon an asylum-seeker who claimed to have converted to Christianity whilst in Australia and to fear persecution in his home country of Iran as a result. In support of his claim, the applicant told the Department that he had regularly attended a particular church in Australia and provided a letter from the reverend of that church. The Department called the reverend, who said that whilst the applicant had attended the church, he had stopped attending two years earlier and had only attended on a few occasions since then. The Department made a file note of the telephone call, but did not give particulars of that information to the applicant. This was arguably in breach of s 57(2) of the Migration Act which provides that the Department must provide ‘relevant information’ to the applicant and invite the applicant to comment on it.

It is here that the statutory relationship between the Department and IAA becomes important. On review, the departmental file note was included in the material provided to the IAA. The IAA also took into account a second letter from the reverend (submitted by the applicant), which stated that the applicant had only occasionally attended church in 2016. Ultimately, the IAA rejected the applicant’s claim that he had genuinely converted to Christianity but did so without interviewing the applicant and others from the church about those matters. In its reasons, the IAA explained that, having regard to the ‘exceptional circumstances’ requirement in the Migration Act, it had not conducted any interviews because it considered that the applicant had been given an opportunity to present his claims and to respond to relevant issues in his interview with the department. This illustrates the point I made earlier about the fundamental assumption made in the fast track regime about the provision of procedural fairness at the Departmental stage (and how this affects the way in which the IAA interprets its review obligations).

The legal issue at the heart of the case was whether the Department had breached the procedural requirements under the Migration Act, and whether this amounted to a jurisdictional error. That would in turn determine whether the IAA had jurisdiction to review the Department’s decision, because the IAA was only given jurisdiction to review ‘decisions’, and it could be argued that this meant legally valid decisions (as a decision vitiated by jurisdictional error is sometimes said to be ‘no decision at all’). This legal argument was made in light of authority from the Full Court of the Federal Court in Collector of Customs v Brian Lawlor (1979) 24 ALR 307. In that case, a majority of the Full Court held that a ‘decision’ reviewed by the AAT was a decision ‘in fact’ regardless of whether it was legally effective. What was at issue in Plaintiff M174 was whether that was directly applicable to the IAA, given the limited form of merits review undertaken by that body as compared to the AAT.

The decision of the Court

In a unanimous decision (Gageler, Keane, Nettle, Gordon and Edelman JJ), the High Court found that a failure by the Department to comply with the procedural requirements in s 57(2) of the Migration Act does not deprive the IAA of jurisdiction to review the Department’s decision. The Court held that the jurisdiction of the IAA under Pt 7AA of the Migration Act is to review decisions that are made in fact, with no requirement that those decisions be legally effective. Further, the IAA had not acted unreasonably by declining to exercise its powers to interview the reverend and other congregants. The High Court held that the exercise of discretion by the IAA in this case in relation to the new information was open to the IAA and was supported by the reasons it gave.

In terms of the narrow legal issue litigated in this case (the IAA’s jurisdiction to review), the High Court confirmed that the authority established in Brian Lawlor applied, even though M174 dealt with a very different form of merits review. In addressing this argument, the High Court held that although the IAA undertakes a ‘limited form of review’, it still undertakes a de novo review and thus Lawlor was capable of direct application ([17]; [52]; [95]).

However, if one examines the legislative role given to the IAA, it is quite clear that the core function of the IAA is not in fact the same as that of the AAT (to arrive at the correct or preferable decision according to the material before it). The IAA can only act if the Department refers a matter to them. The IAA is not permitted to consider new information or conduct an interview unless it demonstrates that there are ‘exceptional circumstances’ to warrant this. If one examines the published decisions of the IAA, it is apparent that they rely heavily on the interview by the Department with the applicant and there is usually no interview of the applicant by the IAA. In comparison, applicants before the AAT have the right to an oral hearing and to lodge new information and submissions to that tribunal.

Here the comments by French CJ in Minister for Immigration v Li [2013] HCA 18 are instructive. His Honour, discussing the powers of review of the Refugee Review and Migration Review tribunals, notes that the term ‘review’ took its meaning from the context in which it appears and:

The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. ([10], emphasis added).

Although the IAA can, in theory, identify for itself the issues which arise in the review, it is constrained from doing so because of its limited review role. This limited role means that it is only permitted to consider the evidence placed by the applicant before the Department. Thus, whilst I acknowledge that the IAA is institutionally independent from the Department of Immigration, I would argue that it is not administratively independent as is the AAT. This is because the IAA generally decides cases on the papers and tends to place significant reliance on the applicant’s interview with the Department. It does not, as a matter of course, elicit new information from the applicant. There is therefore a strong argument that it will be significantly influenced by the way in which the Department has undertaken its decision (that is, the questions the Department has asked the applicant, rather than the questions the IAA has asked the applicant).

Therefore, in my view, the High Court’s decision makes a number of assumptions about the nature of the IAA and the way in which it operates. It assumes that it is a more robust form of review than it in fact is. It gives insufficient consideration to key aspects of the practice of the IAA, such as its reliance on Departmental interviews. This is important because the way in which the IAA operates in relation to the Department should inform our assessment of the fairness of the decision making scheme as a whole.

Conclusions – Implications of M174 for administrative law more broadly

As noted above, refugee status decision-making is a complex area where credibility and country information are often contested. As a result, it is generally thought that a high standard of procedural fairness should apply to such decisions. However, for a number of reasons, the value of efficiency has become more influential in recent years. It is here that the approach of Justice Edelman is of interest. Whilst all judges applied established statutory interpretation principles to the Migration Act in this case, Justice Edelman relied on the statutory objective of efficiency in a way which was quite different to that of the other judges. He did so by finding that:

‘the second reason the plaintiff’s submission is inconsistent with legislative intention is that it is contrary to the statutory goal of efficiency’ ([95]); andthat ‘there could be significant inefficiency if any jurisdictional error by the Minister or delegate prevented the Authority from conducting a review’ ([96]).

This reflects a point I raised in the introduction. That is, the ‘super codification’ of procedural fairness in the Migration Act tends to focus the court on interpreting the words in the statute and stymies the ability of courts to develop procedural fairness as a common law principle. This is, of course, the whole point of statutory codification. However, the judgment in Plaintiff M174 also shows that even such highly codified procedures cannot completely close off the implication of common law principles. Here I am referring to the fact that the decision-maker must still act reasonably in obtaining new information from the applicant.

This is perhaps where the real significance of this judgement is for the future development of administrative law. Faced with a ‘super codification’ of procedure, the court in M174 did at least confirm that unreasonableness still operates as a way to condition the procedural discretions of the decision maker.

It remains the case, however, that there are still concerns about a number of aspects of the IAA process. These include the legislative presumption against the granting of oral interviews and the assumption that procedural fairness is granted to applicants at the departmental stage. Overall, therefore, I would argue that the balance between fairness and efficiency in the fast track process is weighted too far in favour of efficiency and does not sufficiently give effect to important procedural fairness principles.

This analysis is part of an ongoing project being carried out in collaboration with Emily McDonald (a researcher at Monash University), which analyses the decisions of the Immigration Assessment Authority from the viewpoint of fairness.

—

Maria O’Sullivan is a Senior Lecturer in the Faculty of Law, Monash University and a Deputy Director of the Castan Centre for Human Rights Law

Suggested citation: Maria O’Sullivan, ‘Fairness and Efficiency in the Migration “Fast Track” Process’ on AUSPUBLAW (14 May 2018) >