How the Administrative Review Tribunal supports vulnerable parties
Speech by Justice Kyrou, President of the Administrative Review Tribunal, at the International Association of Refugee and Migration Judges Asia Pacific Chapter Conference
I would like to acknowledge the strong links between the IARMJ and Australian judicial and non-judicial decision-makers, who have contributed much to the Association. In turn, they have gained much from the work of the Association. I look forward to that beneficial relationship continuing.
The Association’s main objectives include the following:
- to facilitate knowledge-sharing between those who make refugee and migration review decisions;
- to support judicial independence, training and capacity-building to enhance the skills and knowledge of decision-makers in handling complex refugee and migration issues; and
- to improve the quality and consistency of decision-making in refugee and migration cases worldwide.
The objectives of the Administrative Review Tribunal align with those of the Association.
Today, I will address how the provisions of the Administrative Review Tribunal Act 2024 (ART Act) and the programs and initiatives of the Tribunal assist vulnerable parties. This is an important focus for the Tribunal.
Provisions of the ART Act which support vulnerable parties
The ART Act and associated legislation established the Tribunal and made significant reforms to the current system of merits review in Australia. The Tribunal began operating on 14 October 2024.
Section 9 of the ART Act requires the Tribunal to pursue the objective of providing an in independent mechanism of review that:
(a) is fair and just;
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits;
(c) is accessible and responsive to the diverse needs of parties to proceedings;
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
As can be seen, the Tribunal is required to provide review of decisions for all persons, with a specific responsibility to ensure accessibility and responsiveness to the diverse needs of parties. Other aspects of section 9 are also relevant, including the objective to be fair and just, and that applications are to be resolved quickly and with as little formality as possible.
The Tribunal’s statutory objective guides its consideration of matters which come before it. The statutory objective ensures that the Tribunal serves the public interest and is inclusive and equitable.
A starting point in determining whether a tribunal provides a fair opportunity for vulnerable persons to be heard is the accessibility of that tribunal. Section 51(1) of the ART Act requires the Tribunal, as far as practicable, to conduct each proceeding in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.
The adjective ‘accessible’ is defined in section 4 of the ART Act to mean enabling parties to participate effectively in proceedings. The definition sets out examples of accessibility arrangements, including in relation to premises, facilities and technology, access to information and documents and other adjustments (such as provision of interpreting services) to accommodate a party’s needs.
Enabling accessibility may involve the making of adjustments to cater for physical or mental disabilities or other health needs, cultural differences, language needs or other personal circumstances that could impact an applicant’s ability to participate effectively. This underscores the commitment of the Tribunal to procedural fairness by providing equal access and participation for all parties.
A party may be represented in the proceedings (section 66 of the ART Act) and the Tribunal may appoint an interpreter (section 68). Both provisions are important for all parties before the Tribunal, but particularly so where a party has an identified vulnerability. The Tribunal may work with a representative to ensure that a vulnerable person is able to participate fairly and effectively in Tribunal processes.
The Tribunal also has power to appoint a litigation supporter where an applicant does not have decision-making ability (section 67 of the ART Act).
The Tribunal’s flexibility and responsiveness to the diversity of parties are vital for ensuring that parties have a fair opportunity to be heard. This is particularly important for vulnerable parties.
Before a member of the Tribunal can discharge their duties, they must take an oath or make an affirmation that they will do right to all manner of people according to law without fear or favour, affection or ill-will (section 213 of the ART Act). The oath or affirmation ensures that our members understand that fair and impartial treatment for all persons lies at the heart of what they do.
Tribunal’s programs and initiatives to support vulnerable parties
At the practical level, the Tribunal offers various programs to support vulnerable parties. I will briefly outline some of them.
Accessible hearing processes
The Tribunal accommodates the needs of vulnerable individuals by providing flexible hearing formats, such as video or telephone hearings, and accessible venues for in-person hearings. This flexibility makes the process more manageable for those with physical, mental or emotional challenges.
Between May and July 2024, the Tribunal completed an accessibility audit of all its internal facilities and website to identify areas for further improvement. Today, all Tribunal premises where case events are conducted can accommodate hearing loop systems, closed captioning and interpreters.
The Tribunal’s website also includes a number of features to improve how users access our information, including the verified translation of information into 8 languages and assistive technology translation into 28 languages.
Assistance for self-represented applicants
Many vulnerable applicants may not have legal representation. The Tribunal provides resources which clearly explain its processes to help them understand and participate effectively in their cases. The Tribunal may also refer applicants to legal services.
The Tribunal is currently exploring with Bar Associations the adoption of pro bono legal assistance schemes for unrepresented individuals.
Specialised support for mental health and disability needs
The Tribunal offers support for those with mental health conditions or disabilities, including allowing additional breaks, scheduling hearings at appropriate times to accommodate parties’ abilities and capacities (which may vary at different times of the day) and providing a non-confrontational environment to reduce stress.
Training and education for decision makers
Several provisions of the ART Act place significant emphasis on the training, education and professional development of members. These provisions, together with the provisions that require that members be appointed through a merit-based selection process, seek to ensure that members possess and maintain appropriate skills and expertise. Those skills include the ability to conduct reviews for vulnerable persons that are fair and provide them with an appropriate opportunity to be heard.
Earlier this month, the Tribunal engaged external experts, Dr Sanmuhanathan, Dr Hambly and Magistrate King, to present on aspects of trauma-informed practice to our members. They provided insights and practical advice on how to enable trauma affected users to be heard and have their cases decided fairly. Further training in this area is being prepared.
Interpreters and translations services
The Tribunal addresses language barriers by providing interpreters for applicants and witnesses where the Tribunal considers that they are needed to ensure applicants understand the proceedings and can express themselves accurately.
Referral to support services
The Tribunal may refer applicants to social, legal or community services that provide additional support, such as mental health counselling or legal aid, particularly for cases involving refugee, migration and social security matters.
Through these measures, the Tribunal aims to create a fair, supportive, and accessible environment for vulnerable applicants, to enable them to navigate the review process effectively.
Thank you.
