Ron Merkel discusses the difficulty of handling refugee cases, 2008

Transcript of interview

The refugee area is one of the most difficult areas to deal with legally, and the reason for that is that to be a refugee under the refugees convention, you have to show that you've got a well-founded fear of persecution if you return to your country - on grounds of race, political beliefs, social group, religion and so forth. So that's a very specific criterion. But what you've got to show is that if you go back, you're likely to be persecuted on those grounds.

Now, because everyone's story is their personal story, and it's very hard to prove other than through their word, the [Refugee Review] Tribunal has to assess their credibility, because many people come here because they have a genuine fear of persecution. Others who are called 'economic refugees' maybe come here because they want to have a better life. And in between there are many people who have justified or unjustified fears. And the Tribunal has to work out on which side of the line their fear sits, and there are questions of fact, questions of degree, and because it's such an imprecise method, it's not one that is likely to give very positive or certain results.

And because the legal definition of a refugee is quite a difficult question in itself, many cases are borderline, and sometimes there's no doubt that people who are genuine refugees have been sent back, and there are even instances where, on their return, they've suffered horrific harm because of it. So that's a terrible failure of our system, but on the other hand, many people have been determined to be refugees and have been given refuge in Australia, and therefore been protected from the persecution that they would have otherwise suffered. So it's a very imperfect process, it's an imperfect convention, but I think generally the tribunals and courts try to do the best they can to give fair outcomes.

On the Federal Court we never looked at the merits of a case. We could only look at whether an error of law had been made by the Tribunal that heard the case, so that we're not so personally involved in the facts, but we do have numerous cases that come up which are quite distressing because the personal circumstances that are exposed are really tragic on any view, and so it is a tough jurisdiction and it's a tough area to be working in.