Improving consistency in decision-making

The usefulness of Gender Guidelines

22.31 The ALRC considers that DIAC’s Gender Guidelines can play an important role in ensuring that the principle in Khawar is properly and consistently applied.[38] The ALRC recommends that the Minister for Immigration and Citizenship should issue a direction under s 499 in relation to the assessment of family violence claims in refugee cases, and that such a direction should refer to guidance material in the Gender Guidelines. The ALRC further recommends that Guidelines should be the subject of ongoing, comprehensive and periodic review.

22.32 Stakeholders pointed out that inconsistency in decision making in this area may derive from lack of sensitivity or knowledge in relation to gender-related claims, or a failure to properly consider the Gender Guidelines.[39] Stakeholders supported the proposal for the Minister to issue a direction under s 499 to require decision makers to have regard to the Gender Guidelines as a means of improving consistency in decision-making.[40]

22.33 For example, the Refugee and Immigration Legal Centre (RILC) considered that a s 499 direction ‘is a necessary, but not sufficient step in the effective processing of gender-based claims’, and that the requirement to ‘have regard’ does not go far enough to ensure that current in-depth understanding of gender issues is maintained by officials that would translate in consistent decision making.[41] The RILC agreed with the ALRC that the Gender Guidelines are particularly useful, but considered that they could benefit from further improvement and clarification, in particular, to:

give recognition that a woman’s failure to conform with society’s expectation of her may be interpreted as a threat to the power structures in that (patriarchal) society and that an adverse political opinion may be imputed; and

provide greater clarity around when any of the approaches [to determining a gender based particular social groups] should be used in order to create a principled approach to the issue which would allow for consistent decision-making.[42]

22.34 It was also suggested that, in order for a s 499 direction to have meaningful effect, it is important that the Gender Guidelines ‘are subject to periodic and comprehensive review and revision where necessary to keep abreast international and domestic developments in gender claims’.[43]

22.35 The Refugee and Casework Advice Service (RACS) cautioned that while a direction issued under s 499 may seem ‘reasonable and attractive at first sight’, it is not clear how effective this would be in practice, since the directions

are secondary law (not merely policy), they are limited in practice because they require only that a decision maker consider the directions made. How the weight of mandatory considerations is to be taken is a matter entirely dependent on individual decision makers.[44]

22.36 The Law Institute of Victoria supported the intention of an s 499 direction but argued that ‘a better approach, however, may be to incorporate the Gender Guidelines into the Ministerial Direction’.[45]

22.37 DIAC stressed that ‘protection visa decision makers and Protection Obligations Evaluation (POE) officers are already directed to a variety of guidelines, including Gender Guidelines, to inform refugee status determinations’.[46] As an alternative to the issuing of a s 499 direction, the Department suggested that:

An internal reminder should be issued to decision makers ... this reminder can provide guidance on what is covered in the Gender Guidelines and direct officers as to when they must have regard to this instruction.[47]

Is there a need for a Ministerial Direction?

22.38 The policy issue is whether consistency in decision making is best achieved by leaving the guidance in the PAM—and issuing reminders to decision makers—or elevating the material therein to a direction under s 499 and making it a mandatory consideration. The ramifications of this distinction were articulated by the Federal Court in El Ess v Minister for Immigration and Citizenship:

PAM3 is not a binding document … PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations … PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.[48]

22.39 There are a number of reasons why a direction is preferred. First, the direction would serve an educative function for decision makers by acting as a constant reference point in the assessment of family violence claims. In a complex area of the law, the requirement for decision makers to constantly turn their mind to, and apply principles to different and nuanced cases of family violence and gender-based claims, should over time lead to greater consistency in decision making.

22.40 Second, such a direction would add a measure of transparency and integrity to the decision-making process, and engender public confidence in it. Decision makers must be able to demonstrate to applicants that the matters under the Direction have been properly considered, and a failure to do so leaves the decision open to challenge on the grounds that the decision maker failed to take into account a relevant consideration. The UNHCR has argued that, in relation to its Gender Guidelines, while states may issue separate guidelines or incorporate procedural safeguards into legislation, ‘in either case it is preferable that decision makers are required to use any guidelines that exist’.[49]

22.41 Section 499 directions have created some pitfalls in other areas of migration law. For example, a direction under s 499 in relation to decisions about character assessments under s 501 of the Migration Act has been held unlawful because it ‘improperly fettered a Tribunal’s discretion’.[50] In another instance, a direction was lawful, but ‘unjust’ for because it omitted ‘considerations which supported the non-citizen remaining in Australia, such as arriving as a minor and length of resident’.[51] The drafting of a direction in relation to family violence would need to be careful to avoid such pitfalls.

22.42 Consistency in decision making may also be improved as a result of the ALRC’s recommendations in Chapter 20 in relation to targeted education and training for visa decision makers.[52] Such training and education should take into consideration the intersection between family violence and refugee law, and the application of any direction issued under s 499.

Recommendation 22–1 The Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) in relation to family violence in refugee assessment determinations. Such a direction should refer to guidance material on family violence contained in the Department’s Gender Guidelines.

Recommendation 22–2 The Department of Immigration should ensure that the Gender Guidelines as they relate to family violence are subject to periodic and comprehensive review.

[38] In the Discussion Paper, the ALRC highlighted that the Gender Guidelines gave specific and detailed guidance on assessing gender-related claims, and the intersection between family violence and refugee law.

[39] Joint submission from Domestic Violence Victoria and others, Submission CFV 33. See, also The Asylum Seeker Resource Centre, A Case For Justice: Position Paper on the Legal Process of Seeking Asylum in Australia (2011).14.

[40] National Legal Aid, Submission CFV 164; RAILS, Submission CFV 160; ANU Migration Law Program, Submission CFV 159; Law Institute of Victoria, Submission CFV 157; Confidential, Submission
CFV 152
; Townsville Community Legal Service, Submission CFV 151; Migration Institute of Australia, Submission CFV 148; RILC, Submission CFV 129; WEAVE, Submission CFV 106.

[41] RILC, Submission CFV 129.

[42] Ibid.

[43] Ibid.

[44] Refugee Advice & Casework Service Inc, Submission CFV 111.

[45] Law Institute of Victoria, Submission CFV 157.

[46] DIAC, Submission CFV 121.

[47] Ibid.

[48] El Ess v Minister for Immigration and Multicultural Affairs [2004] FCA 1038. See also Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; Soegianto v Minister for Immigration and Multicultural Affairs [2001].

[49] UNHCR, Comparative Analysis of Gender Related Persecution in National Asylum Legislation and Practice in Europe (2004), 22.

[50] Asku v Minister for Immigration and Citizenship (2001) 65 ALD 667.

[51] Toro Martinez v Minister for Immigration & Citizenship (2009) 177 FCR 337, 357-358.

[52] Rec 20–5.