Friday, November 18, 2005

What is Going on Here?

I am not really up with the workings of the Refugee Review Tribunal, which reviews migration decisions. These decisions are then appealed to the Federal Court, which is where QAAT of 2003 -v- MIMIA [2005] FCA 1659 ended up.

Now, the decisions of the Tribunal itself are what they are. The legislation is so tight and narrow that it is difficult for any decision other than 'sorry, go home' to be made. However, when reading these cases, one thing really strikes me. The applicants are almost never at the review hearing. In fact, although I haven't read many of these cases, I have never heard of an applicant being present at the review. Generally, this seems to be why the cases are appealed up to the Federal Court. If I were an FC judge and this kept happening, it would, quite frankly, give me the shits. The relevant paragraph of Sipois J's judgement, [14], reads:

'On 18 June 2003, the applicants lodged an application for review of the delegate’s decision. On 8 August 2003, the Tribunal wrote to the first applicant and invited her to attend at a hearing. The letter stated:
‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

...’

15 The first applicant did not accept the Tribunal’s invitation to attend the hearing. However, the first applicant provided the Tribunal with a supplementary statement dated 23 August 2003; and an extract from Time magazine about members of the Taliban and al-Qaeda entering Bangladesh, and a news report about violence against women in Bangladesh.'

My question is: what the hell is happening? Why is it that people don't appear to make oral submissions at the review hearing? My immediate reaction is that (1) they can't get there, because of public transport issues or similar, or (2) are too scared to appear and cannot contribute when they do because of a lack of language skills, or (3) don't know about their rights in the hearing.

If (1), there is probably not much the legal system can do. However, if (2), THAT is why we have ADVOCATES. I wouldn't want to represent myself at an RRT hearing any more than in a Supreme Court civil action. Is it that we don't have enough refugee advocates to deal with the huge number of cases caused by our government's overly restrictive legislation?

If (3), then this is the biggest failing in our legal system. Too often, whether people are refugees, homeless, criminal, victims of rape or domestic violence or whatever, our system is not giving these people a voice. If we have members of the community, arguing over their ability to stay in the country, it is the job of the legal system and its members to MAKE people aware of their rights. It is our job to REPRESENT such people. Otherwise, what is the point in having a legal system which has no option but to uphold the lower decision because it cannot get people involved to attend and provide some evidence of their circumstances which would allow the RRT or even the Federal Court to overturn some of these Visa decisions.

It makes me sad.

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