Must use AGLC citation (Australian guide legal citation only )
Words limit does not include footnotes, provided those footnotes are used for referencing only and do not include any substantive material.
• The paper must be double spaced and typed in a 12 point font, allowing a standard 2.5cm margin on both the left and right sides and at the top and bottom of the page.
• Each page should be numbered.
ESSAY QUESTION:
Consider the reasoning of each of the Justices of the High Court in Plaintiff S10/2011 v the Minister for Immigration and Citizenship (2012) 246 CLR 636, explain why they did and/or did not consider the Minister was obliged to accord the applicant procedural fairness in relation to the exercise of the dispensing powers?
Background:
This question is based on discussion of the procedural fairness threshold test in Bannister et al. Government Accountability: Australian Administrative Law pp. 466-468 (but of course to answer the question you will also need to do reading well beyond Bannister et al. – see discussion of ‘expectations’ below).
In Plaintiff S10/2011 v the Minister for Immigration and Citizenship (2012) 246 CLR 636 the court considered whether procedural fairness applied to a Ministerial consideration as to whether or not to exercise his/her powers under what are called the ‘dispensing provisions’ of the Migration Act 1958 (Cth) (sections 46A(2), 46B, 195A, 351, 417).
The powers allow the Minister to grant a visa or permit an application for a visa to be made in cases where that right is otherwise unavailable under the Act, either because the applicant has no specific right under the Act to make a claim for a visa or because the applicant has exhausted his or her review rights (the Minister might for example substitute a more favorable decision for a decision of the RRT or MRT).
The dispensing powers are unlike other powers under the Act in a number of respects:
• The minister is not under an obligation to exercise the power
• The minister must exercise the powers personally
• The powers are to be exercised only if the minister considers it is in the public interest
• Any exercise of the powers by the minister is subject parliamentary scrutiny.
Expectations regarding analysis of the case and academic commentary in your essay
• In answering the question you need to do more than simply recount what the judges decided. You will need to analyse the rationale of their judgments and reflect on the proper limits of procedural fairness.
• Because this assignment turns on an analysis of case law you will need to closely reference that case law. There is no escaping the fact that you will have to read the Plaintiff S10/2011 case closely. While you are expected to engage with the relevant expert commentary on the case and its significance (see below) you should not rely on someone else’s account of the Court’s reasoning, read the case think about and analyse it for yourself.
• You must seriously ‘engage’ with the relevant commentary*. Engaging means more than using the commentary as a source of information or facts, it requires you to consider the argument and analysis of commentators, and explain how their analysis supports or differs from your own reading of the case?
(*Relevant commentary includes texts, journal articles etc such as, Federal Law Review, Australian Journal of Administrative Law, Public Law Review; AIAL Forum publications. You may also find some useful references in the Library’s reserve collection.)
Problem Question
Please note that the following scenario is fictitious; the Act described is a modified version of the real Migration Act 1958, some of the provisions cited are only loosely equivalent to provisions in the actual Act and do not necessarily bear the same provision number.
Ms Lat is of Suman nationality and Gouj ethnicity. She arrived in Australia on a visitor’s visa and then claimed protection as a refugee applying for a protection visa. Pursuant to s 36 of the Migration Act 2000 (the Act) before a protection visa can be issued the Minister must be satisfied that:
1) Australia has an obligation of protection to the Applicant (assume that this criteria is established); and
2) The Applicant has a well-founded fear of being persecuted in her country of origin for reasons of race, religion, nationality or membership of a particular social group or political opinion.
Ms Lat argues that if she returns to Suma she will be persecuted on racial grounds because she is of Gouj ethnicity. Together with her application for protection she has provided a sworn statutory declaration evidencing the persecution she and her family have suffered because they are Gouj shop-keepers. Her family’s shop was looted and burnt twice. Suman thugs beat her and other members of her family on three separate occasions in the town square. Ms Lat claims the last public beating was provoked by the fact that she was dating a Suman man. That beating was so vicious Ms Lat and her boyfriend were hospitalized. Ms Lat’s younger brother has also been refused a place at the local public school.
Ms Lat argues that the persecution has an official quality because it is officially tolerated and uncontrolled by the Suman authorities. In support of this claim she points to the fact that she was not protected by the local police, who simply stood by while witnessing two of the attacks. When her family’s shop was burnt and looted the police observed that: ‘everyone knows that if you do not pay for protection you should expect trouble’.
Ms Lat attached to her application for a protection visa various news reports from reputable news agencies regarding racially motivated attacks upon ethnic Goujians in Suma. Some of the news reports argue the attacks are motivated by a commonly held belief that Goujians are a merchant class profiting at the expense of the Suman community. A number of the reports are critical of the failure of local Suman authorities to protect Goujians.
The Immigration Minister’s decision
The Immigration minster’s lawfully appointed delegate rejected Ms Lat’s application for a protection visa, on the basis that Ms Lat’s fear of persecution was not ‘well founded’. The ‘Reasons for Decision’ state that: ‘There is no independent country information available to the Department, supporting the applicant’s claim that Goujians are the particular target of racial attacks in Suma, or that the Suman authorities either tolerate or are unable to control outbreaks of violence against Goujian shop keepers’.
The Refugee Review Tribunal (RRT) has the power to review s 36 decisions
Ms Lat applied for review of the decision to the Refugee Review Tribunal – she provided a written submission to the RRT arguing her case for review. Attached to her submission were the same news reports she had provided to the Department in her original application for a protection visa.
Review documentation – The Department will provide the RRT with the following material:
• The original application and any supporting documentation
• An evidence statement – setting out the findings of fact and evidence relied upon by the delegate when making the original decision rejecting Ms Lat’s application
• The decision documents – all documents in the Department’s possession and control which are relevant to the review of the decision.
39 The RRT may consider any other evidence relevant to determination of the appeal
40 The RRT to may determine a review in favour of the applicant on basis of the
37 review application, the s 38 material provided by the Department and any relevant s 39 material (‘the papers’).
41 If the determination on the basis of the s 37, s 38 and s 39 materials does not favour the applicant, then the RRT must allow the applicant an opportunity to appear before the RRT to give evidence.
The RRT review:
The 38 ‘evidence statement’ provided to the RRT by the Department included a schedule of 25 ‘country information’ documents relating to the political and social circumstances in Suma and the treatment of Goujians (CI schedule). Because the RRT has access to the Department’s Country Information database, neither hard nor electronic copies of the ‘country information’ documents were physically provided to the RRT. The information on the Country Information database is reliable and regularly updated as new ‘country information’ becomes available.
The single member RRT considered the materials before her, including the CI schedule. The member had decided many cases involving Suma and during the course of those deliberations she had considered most of the relevant ‘country information’ in the Department’s database, consequently she had a detailed knowledge of the social and political circumstances in Suma. In fact, in a case heard a week before Ms Lat’s review the RRT member had considered recent reports to the UN from an independent agency in Suma that detailed measures the Suman government had taken to protect ethnic Gonstrianians.
Pursuant to s 41 the RRT member advised Ms Lat in writing that she ‘had considered all the material relating to Ms Lat’s application’ but was not able to make a favourable decision based solely on that material. Ms Lat was invited to appear before the RRT and give evidence in support of her claim for protection and provide any other documentation that she considered relevant to her case.
As well as the s 37 documents she had provided to the RRT, Ms Lat assumed, as a consequence of the requirements of s 38, that the RRT had possession of the materials and evidence, which the Minister’s delegate had considered when making his decision to reject Ms Lat’s application for protection. She also assumed that during the s 40 ‘paper’ stage of the review process and/or the s 41 oral hearing, the RRT would consider those ss 37 & 38 materials and evidence, including the 25 ‘country information’ documents listed in schedule ‘CI’.
At the s 41 hearing the RRT member simply allowed Ms Lat to make her submission and asked Ms Lat further questions about how she claimed to have been persecuted. The Member did not question Ms Lat specifically about the social and political circumstances in Suma, and she did not refer to any of the country information available on the Departmental Country Information database or in the RRT library that she had considered.
The Refugee Review Tribunal decision:
The RRT accepted that Australia owes Ms Lat a protection obligation if she is a refugee as defined by the Act. Although the RRT accepted that Ms Lat had been the victim of what appears to be economically motivated attacks by thugs on shop-keepers, it determined that these attacks did not found a fear of ‘persecution’ as defined by the Act and Protocol. The RRT affirmed the Immigration Minister’s delegate’s decision to reject Ms Lat’s application for a protection visa on the basis that there was not sufficient evidence that the Suman government participated in, condoned, or had no control over racially motivated attacks upon ethnic Goujians in Suma.
PROBLEM QUESTION:
Ms Lat seeks your advice as to whether she has been denied procedural fairness by the Refugee Review Tribunal – you should apply the procedural fairness ‘hearing’ rule principles.
Please note: You should only discuss the problem in terms of the procedural fairness hearing rule – DO NOT DISCUSS merits review, jurisdiction, standing or any other grounds of judicial review – you will not receive marks for discussion of any issue other than procedural fairness .
Assessment criteria for essay and problem exercise
• Demonstrated understanding of the question and relevant law.
• Depth of analysis; discussion should demonstrate a close familiarity with relevant commentary and case law. It should also demonstrate your ability to evaluate evidence and the validity of arguments and to make a reasoned choice between arguments, while taking into account objections and alternative viewpoints.
• Coherence of assignment structure, including: an appropriate balance between narrative and analysis, the separation of issues, points made in a clear and linked order, no irrelevance or repetition, and argument well supported by reference to relevant commentary and case law.
• The assignment should be written in grammatical plain English, follow the guidelines set out below regarding word limits and format.
• The assignment must be referenced according to standard legal citation criteria as per the AGLC3 (Australian Guide to Legal Citation Melbourne University Law Review Association, 3rd ed, 2010) which can be found at https://www.law.unimelb.edu.au/mulr/aglc
Word limit and format
• The compulsory assignment is subject to a word limit; both the essay and the problem exercise must be no more than 1700 words. This limit does not include footnotes, provided those footnotes are used for referencing only and do not include any substantive material.
• The paper must be double spaced and typed in a 12 point font, allowing a standard 2.5cm margin on both the left and right sides and at the top and bottom of the page.
• Each page should be numbered.
• Over length assignments may be penalised by the deduction of up to 2 marks for every 100 words over the word limit at the discretion of the marker.