Inquisitorial Approaches to Refugee Protection Decision-Making
Laverne Jacobs & Sasha Baglay, eds., The Nature of Inquisitorial Processes in Administrative Regimes (Ashgate Publishing, 2013)
30 Pages Posted: 12 Dec 2013
Date Written: July 20, 2013
In Australia, the Refugee Review Tribunal (RRT) provides final merits review of protection visa decisions made by officers of the Department of Immigration and Citizenship (DIAC). The RRT uses an inquisitorial approach which gives its members primary control over and responsibility for the gathering of evidence, including information from the protection applicant and others as well as country conditions information. This approach aims to relieve applicants with limited financial resources and English-language skills and who may have suffered torture and other trauma from the burden of arguing their own case against DIAC or retaining legal counsel to do so. However, it places applicants at the mercy of tribunal members who must have the necessary skills, experience, competence and resources, including time, to conduct the inquiries required to determine an applicant’s status. In light of this fact, judicial decisions releasing RRT members from the obligation to inquire into the plausibility of applicants’ testimony on a crucial aspect of their claim and their mental capacity to give evidence at their hearing are troubling in the refugee protection decision-making context. This article reviews certain aspects of the functioning of the RRT’s inquisitorial approach and ask whether any lessons can be drawn from this experience for Canada’s currently evolving approach to refugee protection decision-making.
Keywords: refugees, refugee law, refugee status determination, administrative law, inquisitorial decision-making, Canada, Australia, Refugee Review Tribunal, Immigration and Refugee Board, Refugee Reforms
JEL Classification: K19, K33, K39, K40
Suggested Citation: Suggested Citation