Olga Dranichnikov v Australia

Olga Dranichnikov v Australia

 

Right to a fair hearing – whether delay in review of case by Refugee Review Tribunal constitutes violation

The author of the communication was a Russian national, who, together with her husband and daughter, arrived in Australia in January 1997 on a tourist visa. In April 1997, the author’s husband lodged an application for a protection visa on behalf of the family with the Department of Immigration and Multicultural Affairs (DIMA). The application was based on the fact that the author and her husband had been actively involved in the defence of human rights in Russia, as a result of which they had received threats. The application was rejected by DIMA, and, on review, by the Refugee Review Tribunal (RRT). However, an appeal to the High Court was successful and in May 2003 the matter was remitted to the RRT for reconsideration.

In August 2000, following the initial rejection of her husband’s application by the RRT, the author sought to lodge an application for a protection visa in her own right. DIMA refused to register the application, which it considered invalid on the basis that the author’s previous claim for a protection visa (under her husband’s application) had been finally determined. On appeal, the Full Federal Court found that the author should be entitled to make her own application, and DIMA advised that her application would be considered valid as of the date of the Full Federal Court judgment, provided that the author paid the required fee of $30. The author did not pay the fee, as she preferred to await the final determination of her husband’s application, which had by then been remitted to the RRT for reconsideration. The RRT subsequently found in favour of the husband’s application, and as a result, in February 2005, the author, her husband and their daughter were granted a protection visa.

Before the Committee the author alleged violations of Articles 2, 6, 7, 9, 14, 23 and 26 of the 1966 International Covenant on Civil and Political Rights .10 Her claims fall into several categories. First, the author claimed that she was the victim of discrimination on the basis of gender and marital status, in violation of Article 26 of the Covenant, because she was not allowed to make an application for a protection visa in her own right. The Committee found that this claim was inadmissible on the basis of non-exhaustion of domestic remedies: following the Full Federal Court decision in her favour, the author’s application for a protection visa would have been accepted if she had paid the $30 fee, but she chose not to, thereby failing to avail herself of the remedy that was offered to her. The author also claimed that she was the victim of discrimination because amendments introduced to the Migration Act 1958 (Cth) in 2001, which preclude applications for a protection visa by individuals who have previously applied for protection as a family member of an applicant, would have had the effect of preventing her from making an application for a protection visa in her own right. In relation to this claim, the Committee noted that these provisions of the Migration Act were not, in fact, applied to the author. This claim therefore amounted to an actio popularis and was accordingly inadmissible.

Secondly, the author claimed that Australia’s policy in relation to spouses and dependants who are included in a family member’s protection visa application ‘encourages the breaking up of families’,11 in violation of Article 23 of the Covenant (rights to family life). In relation to this matter, the Committee noted that ‘the facts presented by the author do not show how she is a victim in this respect’, and accordingly found that this claim was inadmissible as an actio popularis.12

Thirdly, the author alleged violations of Articles 6, 7 and 9 of the Covenant (rights to life, freedom from torture, and liberty and security) on the basis that if her husband’s application for a protection visa had been refused, she would have been deported to Russia, where her rights under these Articles were at risk of being violated. The Committee found this part of the communication inadmissible, as the claims were moot in light of the fact that the author had been granted a protection visa.

Finally, the author alleged that the procedures before the RRT violated the right to a fair hearing under Article 14(1) of the Covenant. She made this argument on three bases. The first was that the RRT was not independent of the Minister of Immigration. The second was that a member of the RRT had shown ‘arrogance’13 towards the family (and was, presumably, therefore perceived to be biased). The third was that there had been undue delay in the hearing of the author’s husband’s application by the RRT. In relation to the first two of these bases, the Committee found that the author’s claims were ‘not substantiated for the purposes of admissibility’.14 The Committee therefore found those parts of the communication inadmissible. In relation to the allegation of undue delay, the Committee found the claim admissible and proceeded to consider the merits. The Committee indicated that while it was ‘concerned about the delay in the determination of the author’s husband’s refugee claim’,15 it did not consider that this amounted to a violation of Article 14(1) of the Covenant, as:

this delay was caused by the totality of the proceedings including the Federal Court (22 months) and the High Court (27 months) and not just by the Refugee Review Tribunal (14 months for the first review, 15 months for the second). The Committee concludes that the information before it does not show that the author has been the victim of a lack of independence of the Tribunal in this respect.16

 

10 [1980] ATS 23.

11 UN Doc CCPR/C/88/D/1291/2004 (2007), [6.4].

12 Ibid.

13 Ibid [6.7].

14 Ibid.

15 Ibid [7.2].

16 Ibid.

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

International Covenant on Civil and Political Rights.


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