Being a Goujian, Essay Example

MsLat, a citizen Suma has applied for a review of a decision made by the Immigration minister concerning for her protection since she is in danger of ethnic persecution in Suma. Being a Goujian, she purports that members of the Suma ethnic group have repeatedly attacked her and she fears that she is likely to be executed. Having been denied this chance by the Immigration minister, she seeks to enforce it through the Refugee Review Tribunal. After applying to the RRT, the decision maker decides that she has not qualified to be protected by Australian government since some aspects are missing in her situation. Notably, the Decision maker did not question MsLat about the specifics of the social and political circumstances in Suma and she ignored the information of the Country information. As the paper will polemicize, she has been denied procedural fairness by the Refugee Review Act, particularly in the hearing rule.

It is clear that the decision maker did not inform MsLat as to the particular submissions that she was supposed to make before her. Hence she was denied the opportunity to respond.When she summoned MsLat to the tribunal to make her submissions before making her decision, she let her give a mere submission based on what she  (MsLat) thought was relevant to favor her side. In addition, the decision maker ignored the fact that she was expected to ask her questions about the social and political situation in Suma. It is required that the applicant should be given reasonable prior notice, and informed as to the issues she is expected to comment on before appearing before the triburnal. In Commissioner for Australian Capital Territoty Revenue V Aphaphone Pty Ltd, [1] the courts confirmed this requirement by stating among others that the applicant should be informed of the level of detail that will be required in their submissions. In MsLat’s case, where her life and liberty was at stake, she ought to have been required to give a more detailed submission as decided in Ansell v Wells[2].

Additionally, the decision maker failed to make take into considerations relevant information before deciding on the case affecting Ms Lat. According to the report, she considered all the documents that she had been presented to her by the applicant. However, she failed to refer to the information in the Country Information, which could have informed her of the adverse situation in Suma. In Kioa v West,[3] it was agreed that the decision maker is allowed to rely on any other information that is ‘credible, reliable and significant’ in deciding the case. The decision maker in this case had a direct access to the Country Information database that could have made her gain a deeper understanding of the ethnic persecution in Suma. As a result of ignoring this information, she denied MsLat the license that could have protected her against the adverse situation in her country.

The ‘hearing’ rule allows the applicant to be informed as to the decision that the decision maker intends to use in making the final decision on their case, while disclosing all the relevant material and documents that she has considered. In the case of MsLat, the decision maker merely communicates to her stating that having considered the documents that she had received from MsLat; she has not been able to make a decision that favors her. However, the statement she gives is vague, as MsLat cannot understand the documents that she had considered without her listing them. The important part is that she was required to list the documents that she used and disclose to MsLat how she concluded that the content could not help in making a decision that favors her. (Newscorp Ltd v National Companies and Securities Commission; [4]Ainsworth v Criminal Justice Commission[5])

The ‘hearing’ rule also entitles an applicant to legal representation on event that they are required to appear before a tribunal. Though this is not expressly provided for by the statutes, certain situations require that the applicant should be allowed to be represented. The necessity of a lawyer depends on the complexity of the issue at hand (Cains v Jenkins) [6]. For example, in MsLat’s case, the decision maker should have suggested her to hire an attorney to represent her in the case. Notably, her case already intertwined within the facts that she is in foreign country, and that she is pursuing a matter that affects her life. Denying her the right or merely not advising her to get a lawyer is a serious breach of the rules of natural justice under the ‘hearing’ rule. Therefore, her rights under the provisions of this rule have been constrained.

Finally, it is evident that Mslat’s rights under the ‘hearing’ rule have been breached by the Refugee Review Tribunal. She is entitled to information as to the precise details that should be included in her oral submission. The rule provides that oral hearing should only be considered where the decision maker is interested in assessing the sincerity and genuineness of the written submissions. However, instead of assessing these attributes objectively by asking questions that directly relate to the situation, she leaves it to MsLat to talk about the whole while just asking her to give a subjective opinion as to why she thinks that she is at a danger of execution.

Conclusively, it is evident that the ‘hearing’ has been breached in the case advanced by MsLat in the Refugee Review Tribunal. Evidently, she was not informed as to the precise details that she was supposed to include in her submission when she was summoned by the tribunal. The rule provides that she ne informed as to the details of her submission so that she can be ready to respond to all the questions. In addition, she was merely informed that the decision maker made a decision based on the ‘documents that she had provided.’ However, the rule provides that the decision maker should inform the applicant the particular list of documents that they relied upon. Additionally, the decision maker failed to consider some relevant factors while making the decision. For example, she failed to refer to the country information database to evaluate the situation in Suma. Therefore, the resulting decision is invalid, as it is not based on the empirical information available. Finally, the breach furthered by the fact that she is not the tribunal does not advise her to get a legal representation while she goes to submit to the tribunal. This is a serious breach of the rules of Natural Justice.

[1] Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576.

[2] Ansell v Wells (1982) 43 ALR 41.

[3] Kioa v West (1985) 159 CLR 550, 629.

[4] Newscorp Ltd v National Companies and Securities Commission (1984) 5 FCR 88.

[5] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

[6] Cains v Jenkins (1979) 28 ALR 219.