Reviewing Review: Administrative Justice and the Immigration Assessment Authority

Published date01 March 2024
DOIhttp://doi.org/10.1177/0067205X231213120
AuthorAmy Elton
Date01 March 2024
Subject MatterArticles
Article
Federal Law Review
2024, Vol. 52(1) 5174
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X231213120
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Reviewing Review: Administrative
Justice and the Immigration
Assessment Authority
Amy Elton*
Abstract
The Immigration Assessment Authority (IAA) provides the f‌inal merits review mechanism for
people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is
incredibly signif‌icant, with consequences ranging from resettlement in Australia, removal to an
applicants country of origin or indef‌inite immigration detention in harsh conditions. Eight years
since its introduction, this article asks whether the IAA has realised the goal of promoting eff‌icient
review whilst meeting other important administrative objectives. The article takes a novel ap-
proach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has
balanced administrative justice properties. In so doing, this article offers a unique lens to critically
ref‌lect on the role of the IAA and whether, once its mandate is ended, this new model of review
should be abandoned or revived for future merits review of asylum claims.
Accepted 22 May 2023
I Introduction
Since the early 1990s, successive Australian governments have taken an increasingly securitised
approach towards people seeking asylum by boat and restricted avenues for entry and resettlement
in Australia.
1
This article analyses the Immigration Assessment Authority (IAA) as one strand in
the elaborate web of restrictive migration reforms. The IAA commenced operation in 2015 as a
* PhD candidate, University of Newcastle Law School, Australia. The author is a former recipient of an Australian
Government Research Training Scholarship. With special thanks to Dr Amy Maguire, Dr John Anderson and Dr Jim Jose
for their thoughtful feedback and helpful advice. Special thanks also to Dr David Tomkins for his valuable ref‌lections on this
article. An earlier version of this article was presented to the Australian Institute of Administrative Law, National
Administrative Law Forum, Canberra, 18-19 July 2019.
1. These practices include the introduction of mandatory immigration detention for all people arriving by boat in Australia
without a valid visa, offshore processing, bars on permanent residency, the introduction of temporary protection and boat
turn-backs with enhanced screening on water: see University of New South WalesAndrew and Renata Kaldor Centre for
International Refugee Law, Australias Refugee Policy: An Overview (Factsheet, 17 July 2020).
means of providing limited review of fast-track refugee status determinations (RSDs) for people
who sought asylum by boat in Australia between 13 August 2012 and 1 January 2014.
2
RSDs are
conducted by government off‌icials who determine whether a person seeking asylum is owed
protection or complementary protection on humanitarian grounds.
3
Since 2015, all RSD fast-track
decisions have been automatically reviewed by the IAA. Eight years since its f‌irst review, this article
asks whether the IAA has been successful in delivering its aim of eff‌icient outcomes whilst
balancing the tensions between other administrative justice properties. It also considers the eff‌icacy
of this form of limited review: should it be expanded across the administrative system or dissolved
upon the f‌inal case review? In so doing, the article provides a critical insight into the law, policy and
practice of the IAA.
The fast-track process has received some attention across law, policy, politics, medicine and
psychology disciplines. Townsend and Kerwin considered the way in which the legislative
framework of the IAA aimed to shift away from the vision splendid, the merits review principles
that have been in place since the 1970s.
4
They considered how the courts have interpreted the IAA
statutory scheme in a way that references long-standing merits practices.
5
Other scholars have
analysed the fast-track framework in terms of the treatment of vulnerable people, the diff‌iculties in
obtaining credibility assessments, poor access to legal services and the lack of mental health care
provided to people seeking asylum throughout the RSD process and review.
6
This article builds on
this Australian literature by considering the law, policy and practice of IAA review through the lens
of a pre-formulated normative theory of administrative justice, def‌ined in the Australian Law
Journal, a peer-reviewed journal focusing on major issues in the Australian legal system and edited
by the Honorable Justice Francois Kunc.
7
Administrative justice is often avoided as a normative framework due to its uncertain
nature.
8
This paper takes a critical approach to the dismissal of the concept of administrative
justice on its purported uncertainty. The emerging concept of administrative justice, being
neither a common law principle nor statutory rule and remaining wholly unexplored to date in
Australian administrative case law, provides a lens for normative insight. Administrative
2. AustralianGovernment, What We Do,Immigration Assessment Authority (Web Page, 13 April 2016) <http://www.iaa.
gov.au/about/what-we-do>.
3. A person is a refugee if, owing to a well-founded fear of persecution, they are unable or unwilling to return to their
country of nationality: Migration Act 1958 (Cth) s 5H (Migration Act). Persons may also be able to seek complementary
protection in accordance with section 36(2)(aa) of the Act.
4. Joel Townsend and Holly Kerwin, Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal
Courts to the Fast Track Processing Regime and the Limited Reviewof the Immigration Assessment Authority(2021)
49(2) Federal Law Review 185, 185187.
5. Ibid 2045.
6. SeeEmily McDonald and Maria OSullivan, Protecting VulnerableRefugees: Procedural Fairness in the Australian Fast
Track Regime(2018) 41(3) University of New South WalesLaw Journal 1003; Mary Anne Kenny and Nicholas Procter,
The Fast Track Refugee Assessment Process and the Mental Health of Vulnerable Asylum Seekers(2016) 23(1)
Psychiatry, Psychology & Law 62; Nicholas Procter, Mary Anne Kenny, Heather Eaton and Carol Grech, Lethal
Hopelessness: Understanding and Responding to Asylum Seeker Distress and Mental Deterioration(2019) 27(1) In-
ternational Journal of Mental Health Nursing 448; Refugee Advice and Casework Service, Submission No S108 to the
Law Council of Australias Justice Project(9 October 2017); Australian Law Reform Commission, Traditional Rights
and Freedoms Encroachments by Commonwealth Laws (Report No 129, 2016).
7. Amy Elton, Towards a Normative Standard of Administrative Justice; Themes and Principled Tensions(2021) 95(12)
Australian Law Journal 964, 9768.
8. As an example, at the 1999 AIAL conference which prioritised the concept of administrative justice no speaker offered a
detailed or perhaps even workable def‌inition of administrative justice: Matthew Groves, Administrative Justice in
Australian Administrative Law(2011) 66 Australian Institute of Administrative Law Forum 18.
52 Federal Law Review 52(1)

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