Monday, November 21, 2005

Applicant S231/2003 -v- RRT

Why do lawyers keep butting their heads against the wall by bringing cases like this?

The fact that this case is entitled Applicant 231/2003 means, in Registry jargon, they were the 231st unnameable applicant (privacy etc) in the year 2003. My guess is there were many more.

Each one brings similar arguments. The Refugee Review Tribunal did not consider the evidence. Did not have jurisdiction to make the finding it made. Did not make the proper decision required by the Migration Act.

Wake up guys. The High Court is not granting your clients certiorari, which for beginners is an order rendering void an administrative order made by a statutory body such as the RRT. They are not finding there was no jurisdiction, because there clearly is.

It might be an interesting research paper to examine how many of these Federal Court cases, which have been sent down there by the High Court, actually have these quashing orders granted. Not very many, would be my guess, because the statute is narrow, well defined and very very clear as to who can and cannot be allowed to stay in this country.

Further, none of these applicants can bring sufficient evidence to substantiate their claims. Why not? Usually because their evidence is oral, ie 'The Government tortured my family'. The Court says 'you look dodgy and you are probably a terrorist, so we are not going to believe your evidence'. They aren't quite that bad, but you get the gist.

What do we expect from these people? Statutory Declarations from their persecutors? "Yes" they would say "we tied up his mother with duct tape, you really should let him in".

My point is that advocates are not winning the battle based on the law as it stands and how the Courts wish to apply it. The better path is changing the laws.

If nothing else, it will save the poor Fed Court judges from hearing hundreds of stupid and usually baseless claims for judicial review of administrative decisions.

UPDATE: Quantum Meruit quite rightly points out the lack of appearance on behalf of the applicant in the abovementioned case. You will see in my comment in response a request for further enlightenment. How is the system falling down? Where are the appeals coming from, the applicant themselves, law firms or more grassroots, NGO type organisations? It is hugely interesting, because if not lawyers and law firms, then people are actually exercising their review rights. However, I am unsure whether these people are actually filing the appeal documents, which require at least a bit of legalese, themselves.

Once we have the Migration Act repealed and replaced with something a bit more workable, Sackville J can go back to writing great one liners in IP judgments for me to quote in exams. He is a guru.

Thanks again to QM for (1) pointing out a very obvious mistake on my part and (2) stirring up a bit more discussion.


Blogger QM said...

I don't know how this reflects on the advocates. From the looks of it, there was no appearance on behalf of the applicant.

9:40 pm  
Blogger Not my real name said...

Thanks for your first comment, Quantum.

Fair enough too, but I guess my point relates to the fact that there must be fundamental problems in our system.

Given you are in private practise, how does such a claim make it to the RRT or Federal Court? An advocate must be filing these appeals in the Fed Ct, even if there are no appearances.

If this isn't a problem of bad lawyering, can you maybe give us (me!) a bit more practical information about how these cases appear in the court system?

It seems to me that someone must be filing, if not lawyers then I can't think who, apart from maybe refugee advocate groups. If lawyers are not appearing at the Federal Court proceedings (which you were right to point out and which I missed) then why go through the rigmarole of writing up an appeal?

I just can't work it out. If you know how it works, please enlighten!

Cheers and thanks again for your comment.

9:53 pm  
Blogger QM said...

Migration is not my thing, but appeals and so on can be lodged by the party on his or her own behalf and prepared with the assistance of just about anyone. I suspect that this case was lodged in the name of the party.

In this case, the decision indicates that the original appeal was a kind of "class action" which dealt with one issue common to a whole bunch of cases. In such a case, I would imagine that a refugee organisation or legal aid or similar were running the primary case and encouraged any other cases with similar facts to piggy back on their appeal (there would be little duplication of work, as only one common issue was argued). However when the appeal was successful and the appellants' cases were remitted to the Federal Court, they would have been heard separately.

However I agree with your point that the legislation is hopelessly narrow. The quagmire of refugee cases is largely as a result of the fact that the prospects for appeals on the facts are extremely limited, which is why we end up with a stream of people arguing technical legal issues, when their most potent argument is on the facts.

3:38 pm  
Blogger Not my real name said...

a ha! Thanks again Quantum for your info.

I hadn't thought og the class action possibility, but I did suspect legal aid was probably involved.


3:53 pm  

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