Tag Archives: protection

The inappropriateness of relying on omissions of claims at entry interview

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 the Court said at [56]:

some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Person cannot be removed until protection claims assessed in procedurally fair way

At [46] of SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 the Court recited the basic principle:

The Federal Court concluded in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (‘SZQRB’) at 544-546 [200] and 546 [204] that the power of removal in s 198 could not be exercised whilst a person in detention had made claims for protection (including by way of non-refoulement) until those claims had been assessed by a process which accorded an applicant procedural fairness and which addressed the correct questions according to Australian law.

This principle arises from Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.  The assessment of non-refoulement claims is the second step of the two-step process of the Minister deciding (step one) whether to exercise certain non-compellable powers (step two) such as lifting the bar (s 48A) or granting a visa (s 195A).  Procedural fairness is required in the exercise of step two: M61.

The consequence is that detention of a person who has made non-refoulement claims, but such claims are not being considered, or being considered without procedural fairness, may be unlawful: see SZSSJ [86].