Joel Townsend and Hollie Kerwin: Erasing the Vision Splendid of Australian Merits Review? ‘Fast Track’ Review of Migration Decisions in Australia

The establishment of the Immigration Assessment Authority (‘IAA’) to deal with the claims of certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. In this post we consider some of these questions, which we have also considered in detail in a recent article in the Federal Law Review.

The IAA provides for a narrower set of rights than merits review in its common Australian form. The limits of the IAA’s task on review have been the subject of a set of probing judgments in the federal courts. These decisions confirm that the IAA can be contrasted with other Australian merits review processes. However, the normative underpinnings of Australian merits review drawn from custom and intentional design have exerted force on judicial consideration of the IAA. These footings remain fundamental to how the courts have construed the discretions, powers and functions conferred on the IAA.

Merits review in Australia

In 1971, the ‘Kerr Committee’ recommended the creation of a tribunal to ‘review on the merits certain administrative decisions made under Commonwealth law’.[1] The Kerr Committee’s recommendation led to the creation of the Administrative Appeals Tribunal (‘AAT’), which has been followed by the development of parallel merits review tribunals across Australian jurisdictions. The notion of a tribunal as an independent fact-finder and decision-maker, tasked to make a fresh decision, after hearing from an applicant, has come to be central to Australian merits review. It has attracted the moniker ‘the vision splendid’. Despite there being no constitutional guarantee or entrenched definition of merits review, these key elements have become consistent parts of Australian law. They serve two ends: better decision making, and procedural fairness.

The Fast Track Regime

The IAA created by Part 7AA of the Migration Act 1958 (Cth) (‘Migration Act’)is, intentionally, a new kind of merits review. This review is a ‘limited’ one (see s 473FA), intended to constrain procedural fairness and contemporaneous fact-finding. Section 473DA confirms that provisions in Part 7AA constitute an ‘exhaustive statement of the requirements of the natural justice hearing rule’.[2] Section 473DB confirms that review is ordinarily to be conducted ‘on the papers’, without a hearing or interview being offered to the person seeking asylum.

The circumstances in which new information can be taken into account by the IAA are limited s 473DD. It sets an apparently high bar for the receipt of new information, providing that:

… the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

In these respects, the IAA departs in significant ways from the familiar model of Australian merits review, exemplified by the AAT, which generally affords a review applicant a hearing,[3] and permits consideration of new information on review.[4]

Is IAA review ‘merits review’?

Early in the life of the IAA, courts were perplexed with the question of how to characterise this form of review. In Minister for Immigration and Border Protection v AMA16, Griffiths J observed that:

the Minister’s counsel described the IAA’s task in performing its functions under Pt 7AA as to determine what is the ‘correct or preferable decision’. This phraseology aptly describes the decision-making function of the AAT … But I have grave doubts that the phraseology is apt to describe the decision-making function of the IAA having regard to the significant differences between its function and powers and those of the AAT.[5]

The unique features of IAA were considered by the Federal Court in detail in BMB16 v Minister for Immigration and Border Protection, in which the appellant argued that the IAA had fallen into error because it had undertaken a de novo review of the appellant’s protection claims.[6] Two members of the Full Court acknowledged the differences between the IAA and the merits review available through the AAT, but the Full Court unanimously dismissed the appeal.

In Plaintiff M174/2016 v Minister for Immigration and Border Protection, the High Court confirmed that the IAA, like the AAT and other more typical merits review tribunals, was ‘engaged in a de novo consideration of the merits of the decision that has been referred to it’.[7] It is clear that after M174 the IAA is now best understood as an unusual merits review body, which undertakes de novo review with a view to arriving at a correct or preferable decision.

Tempering the impacts of the IAA

Courts, apparently conscious of the structural differences between the IAA and review provided by the AAT (for example),[8] have found novel ways to engage with the Fast Track Regime, especially its anomalous limits and express curtailment of procedural rights. Ultimately, judicial engagement has enhanced the overall integrity of the system by bringing the IAA review process closer to the Australian merits review paradigm.

Courts have interpreted the IAA’s powers to receive new information expansively. Courts have also, by applying the notion of ‘legal unreasonableness’, provided a check on the IAA deciding the matter on the papers, without providing a hearing. Judicial interpretation of the IAA’s procedural powers has in these ways limited the effect of provisions which would otherwise deny an applicant a right to a hearing, and prevent the IAA from ‘standing in the shoes’ of the original decision-maker.

Courts have given s 473DD a reading favourable to applicants. Specifically, courts have read the terms ‘exceptional circumstances’,[9] ‘credible personal information’,[10] and ‘not previously known’,[11] in ways which reopen the doors of the IAA to some asylum seekers.

Additionally, courts have found IAA decisions to be affected with jurisdictional error because of legal unreasonableness, where the IAA has failed to consider whether to offer a hearing to an asylum seeker.[12] This is dependent on the particular factual circumstances of the case,[13] but nonetheless provides some greater prospect of procedural fairness in the IAA process.

Conclusion

There is no unitary concept of merits review in Australian law, and merits review is not available in respect of every government decision. Nonetheless, there is a relatively stable tradition of merits review, incorporating a right to be heard by an independent decision-maker who ‘stands in the shoes’ of the decision-maker at first instance and considers matters anew. These tenets of the ‘vision splendid’ set in train by the Kerr Committee reflect deeper assumptions about the rule of law, and the goal of accuracy in decision-making.

The IAA represents a significant departure from Australian public law tradition. It is deliberately designed to constrain the rights of an asylum seeker to provide new information to the IAA, and limit the degree to which the IAA holds the powers of review historically afforded to the AAT. Despite that design, those merits review traditions have proved important in tempering it.


Joel Townsend is Program Manager, Economic and Social Rights at Victoria Legal Aid. Hollie Kerwin is Senior Specialist Lawyer (Climate Lead) at Environmental Justice Australia. Both authors practise principally in administrative and constitutional law, including previously in relation to decisions made by the Immigration Assessment Authority under Part 7AA of the Migration Act.


[1] Commonwealth Administrative Review Committee, Parliament of Australia, Commonwealth Administrative Review Committee Report (Parliamentary Paper No 144, August 1971), 90 [300].

[2] The High Court has found this exclusion of the hearing rule to be effective: see BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091, 1099 [34] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[3] See Administrative Appeals Act 1975 (Cth), including s 32 and s 34J.

[4] See Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ); see also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] (Hayne and Heydon JJ).

[5] Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, 555-6 [90]. See also: at 556 [91]-[92].

[6]BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448.

[7] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 226 [17] (Gageler, Keane and Nettle JJ).

[8] See, for example, the description of the IAA as a ‘cloistered and non-adversarial context’: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140, 148 [25] (Kiefel CJ and Gageler J) (‘CNY17’).

[9] See, for example, BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148, Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249.

[10] CSR16 v Minister for Immigration and Border Protection [2018] FCA 474; but see DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].

[11] See BBS16, n 10, at [106], M174, n 8, at [33].

[12] See Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.

[13] DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69.

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