Commentary
| Published date | 01 September 2001 |
| DOI | 10.22145/flr.29.3.4 |
| Date | 01 September 2001 |
| Author | Kevin Lindgren |
| Subject Matter | Article |
COMMENTARY
The Hon Justice Kevin Lindgren*
INTRODUCTION
My purpose is to address some practical aspects of judicial review of decisions in
relation to refugee claimants under the Migration Act 1958 (Cth) ('Migration Act'). The
following observations may be seen as a supplement to the paper by John Basten.1
THE PROBLEM
The phenomenon of increasing resort to the High Court and the Federal Court by
disappointed refugee claimants is referred to in John Basten's paper.2 This has
prompted governmental and judicial responses.
Disappointed refugee claimants may apply to the Federal Court for the relief
allowed by Part 8 of the Migration Act or to the High Court for relief of the kind
referred to in s 75 of the Constitution.
The current régime providing for review by the Federal Court of visa decisions was
introduced by the then Labor government by the Migration Reform Act 1992 (Cth) and
commenced on 1 September 1994, although the Refugee Review Tribunal (RRT) had
been established on 1 July 1993. The Act of 1992 expanded access to merits review,
concomitantly, and introduced restrictions on the available grounds of judicial review.
The government intended the changes to reduce the volume of litigation attacking
administrative decisions relating to visas.
But the number of proceedings commenced in the Federal Court and the High
Court attacking such decisions has increased. The Department of Immigration and
Multicultural Affairs (DIMA) has provided the following statistics in its 'DIMA Fact
Sheet 86' available on its web site: http://www.dima.gov.au/facts/86litig.htm, in
relation to new applications filed in the Federal Court for review of Immigration
Review Tribunal/Migration Review Tribunal (IRT/MRT) a nd RRT decisions:
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* Judge, Federal Court of Austra lia and President of the Copyright Tribunal.
1John Bastem, "Judicial Review: Recent Trends" (2001) 29 F L Rev 365.
2 Ibid.
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