Ministerial review: getting it right

December 1, 2002

A failed appeal to the Refugee Review Tribunal (RRT) is not always a fatal blow for people trying to invoke Australia’s protection obligations.Under Section 417 of The Migration Act, an applicant can make a request directly to the Immigration Minister, who may intervene and substitute an RRT refusal with a more favourable decision if he deems it to be in the public interest.But the power to overturn a merits review decision is not something officials take lightly. A final pitch for ministerial intervention is an extremely serious and complicated undertaking requiring complete and detailed submissions. In short, if such an appeal is to have any chance of success, it has to be done well and in accordance with Migration Series Instruction 225 and Ministerial Direction 21 (which relates specifically to cases where the applicant's character is an issue).The figures suggest that the minister wields this power sparingly. In 2001, 3,256 requests (including repeat requests) were made for minister to substitute RRT decisions. Of these, 1,845 were finalized, with the minister exercising his power in 176 cases and granting 268 visas (a single decision can apply to more than one person). These appeals are both time and issue critical. To overturn an RRT decision, an appeal must be lodged in a timely manner and must address the issues at hand. “These are extremely serious, and they need to be addressed properly with detailed submissions and more than just a one page letter. Otherwise they may fall by the wayside,” said migration agent Marion Le.Le, a consultant to Immigration Solutions, is currently representing a Burmese asylum seeker whose previous migration agent neglected to seek a ministerial intervention of the RRT’s decision, leaving him to write his own appeal. In this particular case, Anne O’Donoghue, Principal Lawyer with Immigration Solutions initially interviewed the client and referred the matter to Marion Le. On close analysis it was discovered that information had not been put before the RRT, which could have validly been put to the Minister under S 417 of the Migration Act. The nature of this information related to the applicant’s family members in Australia, and his strong involvement and support within the Burmese Community in Australia. This information was crucial and had not been previously given to the Minister. His is not the only case of a migration agent getting it wrong. There have been cases of migration agents simply firing off one-page letters to the minister, an approach that is almost guaranteed to elicit a polite but firm rejection. In addition, many agents and applicants have submitted their appeals with inadequate supporting documentation. It is vital for asylum seekers to disclose as much information about their situation as possible, and for their agents to diligently solicit and prepare the relevant documents. But this doesn’t always happen, especially in refugee cases where applicants often attribute poor documentation to their efforts to avoid detection by the authorities in their home country. Le’s client has argued that it was precisely because of Burma’s repressive atmosphere that his account of events was poorly documented and in some cases conflicted with independent accounts. Information from human rights groups suggests that this argument may have some validity. Human Rights Watch claims that the ruling State Peace and Development Council (SPDC) holds more than 1,000 political prisoners, including members of ethnic minority groups and 17 elected members of parliament. Despite this, the RRT rejected the appeal because it considered the applicant’s version of events implausible. This case sheds light on some of the difficulties of the process. Although all cases where a person requests Ministerial intervention are brought to his attention, the Minister is under no obligation to exercise his authority. By applying to have an RRT decision overturned, applicants are asking the Minister to have the Wisdom of Solomon. Accordingly, the application must be convincing and complete; a one-page letter is not going to do the job.