Who: “There’s [an internal] review of the initial [departmental] decision …You can have the [administrative] process we’re talking about or you can have a judicial one, but you don’t have to have both.” Shadow minister for Immigration Scott Morrison, speaking about Coalition immigration policy.
The claim: Australia could operate a non-statutory, administrative process without judicial review, i.e. there would be no appeal against a government decision not to grant refugee status.
The facts: The High Court’s jurisdiction cannot be abolished by the government or the Parliament. Under Australia’s Constitution and the Judiciary Act 1903, the High Court and the Federal Court have original jurisdiction to issue constitutional writs on any matter involving an officer of the Commonwealth (section 75(v) of the Constitution).
The finding: Judicial review of decisions relating to refugee applications cannot be abolished.
Discussion of evidence: For asylum seekers able to make a valid protection visa application under the Migration Act 1958, departmental officers make an initial decision on the claim for refugee status. If the claimant is unsuccessful, he or she may appeal to the Refugee Review Tribunal. This is a special body established to review such decisions. Judicial review of RRT decisions is an option for both asylum seekers and the government. The possibility of judicial review cannot be legislated away.
There has been a succession of non-statutory procedures in place for the assessment of refugee claims by asylum seekers arriving at ‘excised offshore places’ such a Christmas Island since at least 2001. The High Court confirmed in 2010 that judicial review is available to those who are unsuccessful under these non-statutory procedures.
It would seem the Opposition wants to abolish appeals beyond the administrative mechanisms. But as pointed out neither the Government nor the Parliament has the power to do that. Those who are unsuccessful at the administrative level can appeal to the High Court as of right. Some review or appeal mechanism would need to be re-invented to ease the pressure on the High Court, just as the Native Title Tribunal was created to deal with the consequences of the Mabo decision.