Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal Courts to the Fast Track Processing Regime and the ‘Limited Review’ of the Immigration Assessment Authority
| Published date | 01 June 2021 |
| DOI | 10.1177/0067205X21993158 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
Article
Erasing the Vision Splendid?
Unpacking the Formative
Responses of the Federal Courts
to the Fast Track Processing
Regime and the ‘Limited Review’
of the Immigration Assessment
Authority
Joel Townsend* and Hollie Kerwin**
Abstract
The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing
Regime for certain asylum seekers has posed new and important questions for Australian
administrative law, especially in respect of the place, scope and effect of merits review. This article
considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track
decisions’ made by the IAA. It concludes that the Fast Track process represents a novel devel-
opment in Australian public law: a partial review process which is not sufficient to correct the
errors of the decision-maker at first instance but which appeared for a time capable of immunising
elements of the decision from appeal or direct judicial review. It is, in its intention and current
operation, more than a ‘targeted tinkering’ with the mechanics of merits review and of migration
law in Australia. It deserves attention as it commences its journey through superior courts and as
the regime settles into the Australian administrative law landscape.
I Introduction
The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Process-
ing Regime for certain asylum seekers has posed new and important questions for Australian
* Program Manager, Economic and Social Rights, Victoria Legal Aid, Melbourne, Victoria, Australia. The author may be
contact at joel.townsend@vla.vic.gov.au.
** Senior Lawyer, Human Rights Law Centre, Melbourne, Victoria, Australia . The author may be contacted at hollie.
kerwin@vla.vic.gov.au. Both authors practise principally in administrative and constitutional law, including previously
in relation to decisions made by the Immigration Assessment Authority under Part 7AA of the Migration Act. The
authors thank Maria O’Sullivan, Kerry Ford, Maya Narayan and Douglas McDonald-Norman for their generous reviews
of earlier drafts of this article.
Federal Law Review
2021, Vol. 49(2) 185–209
ªThe Author(s) 2021
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DOI: 10.1177/0067205X21993158
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administrative law, especially in respect of the place, scope and effect of merits review. This article
considers the early jurisprudence of the federal courts in relation to ‘Fast Track’ decisions made by
the IAA. It concludes that the Fast Track process represents a novel development in Australian
public law: a partial review process which is not certain to correct the errors of the decision-maker
at first instance and indeed which appeared for a time capable of immunising elements of the
decision from correction on appeal or direct judicial review. It is more than a ‘targeted tinkering’
1
with the mechanics of merits review and of migration law in Australia and deserves attention as it
takes its place in the Australian administrative law landscape.
Australian merits review has, to date, been informed by a notion of a tribunal as an independent
fact-finder and decision-maker, tasked to make a fresh decision, after hearing from an applicant.
This notion is underpinned by the engagement of tribunals with applicants for twin (and inter-
dependent) purposes of accuracy and procedural fairness in decision-making. Such is its force, this
notion of Australian merits view has been shorthanded for decades as ‘the vision splendid’. Despite
there being no constitutional guarantee or entrenched definition of merits review, its history in
Australian law has been very consistent in these key elements of its operation and function.
Close inspection of the Fast Track Regime created by pt 7AA of the Migration Act 1958 (Cth)
(‘Migration Act’) indicates an intention to create a different kind of review. This review is a
‘limited’ one—as the Migration Act tells us,
2
intended to constrain procedural fairness and con-
temporaneous fact-finding. However the ‘limits’ of the IAA’s task on review have also been the
subject of a set of probing judgments in the federal courts. These decisions confirm that the Fast
Track Regime challenges traditional assumptions about the scope, nature and function of merits
review in Australia. However, the normative underpinnings of Australian merits review continue
to exert force on the IAA’s operation and on judicial consideration of the IAA. They remain
fundamental to how the courts have construed, and continue to construe, the discretions, powers
and functions conferred on the IAA.
A Fast Track Review
The Fast Track Regime is detailed in pt 7AA of the Migration Act. It creates a ‘fast track’ review
processthrough which the refusalof applications forprotection visas, made by certainboat arrivals, are
subject to review (‘Fast Track Review’). A simplified outline of Fast Track Review is set out in s
473BA of the Migration Act, confirming that it provides ‘a limited form of review of certain deci-
sions... to refuse protection visas’.This outline, and the explanatorymemorandum to the Migration
and MaritimePowers Amendment (Resolvingthe Asylum Legacy Caseload)Act 2014 (Cth) (‘Amend-
ing Act’),confirm that Fast Track Review is intendedto be a ‘review’ of a primary decision to refusea
protectionvisa and that this review is intended to be a more limitedform of review than that provided
by the Administrative Appeals Tribunal (‘AAT’) under pts 5 or 7 of the MigrationAct.
3
1. As recently as 2010, Stephen Gageler (then Solicitor-General of the Commonwealth) described migration law as being
in a phase of only ‘targeted tinkering’ after a decade of more radical reform and challenge: Stephen Gageler, ‘Impact of
Migration Law on the Development of Australian Administrative Law’ (2010) 17(2) Australian Journal of
Administrative Law 92, 93.
2. Migration Act 1958 (Cth) s 473FA (‘Migration Act’).
3. Administrative Appeals Tribunal (‘AAT’) review of migration decisions under pts 5 and 7 of the Migration Act apply,
respectively, to most non-protection visa applications and protection visa applications (to which pt 7AA does not apply).
186 Federal Law Review 49(2)
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