A critical study of discourse and interaction in the Australian Migration Review Tribunal (MRT)

The migration regime in Australia allows the majority of visa applicants (or their sponsors) access to the Migration Review Tribunal (MRT) to have their visa application reviewed in the event that this was rejected by the Department of Immigration. Set up under the Migration Act 1958 (“The Act”), the MRT is a merits review tribunal empowered to consider the visa application afresh and independently and make a decision setting aside or affirming the matter or sending it to the Department of Immigration for re-consideration. This thesis primarily explores the roles and the discourses of the MRT Member (s) who constitutes the MRT to review and make a new decision and the two other main stakeholders, the visa applicant and the migration agent, who endeavour to convince the Member to decide in their favour. Research by Goffman (1959, 1974 and 1983) on roles, participation framework and interaction, with his classic question of “What’s that it is going on here?”, has provided the conceptual framework for the thesis. The communicative features of the verbal exchanges between the parties and discourses invoked are not only of vital interest for studies of social behaviour in general but are also the key to fact finding during the review process. The second major construct relied on, the institutional order (Sarangi and Roberts, 1999), sheds light on how an institution such as the MRT manages its review process in a fair manner within the framework of the relevant Act. The duties of the MRT as set out in the Act, together with the court’s jurisprudence, impress upon us that the Member of the MRT assumes an enquiry role, such that failure to enquire is likely to constitute a failure to review. However, my own data – drawn from diverse sources including hearing transcripts, MRT decisions, Federal court judgment and interviews with stakeholders - suggest that the Member of the MRT does not only adopt a single enquiring role but also adopts multiple roles such as enquirer and interpreter of law, and the Member’s discourse changes in alignment with the role assumed at that time. Further, a number of other issues arise in the course of discourse analysis. For example, during the interaction between the Member and the review applicant or the review applicant’s migration agent, the institutional order of proceedings (as governed by the Act) is commonly interrupted when the review applicant’s interest is at stake. Secondly, it was observed that the Member is often faced with important communicative and conceptual challenges in dealing with visa applicants from a different cultural background. For example, the concept of defacto may be absent or differently defined in some other cultures. Thus there is a need for Members to be culturally sensitive and alert in constructing questions. Also, there are circumstances where the visa applicant attempts to argue their case vexatiously in order to obtain a visa. Finally, it was observed that while the MRT has absolute power under the Act in deciding a matter, its decisions are in fact subject to judicial “scrutiny” by the federal courts given that the visa review applicant may appeal against the MRT decisions on grounds of jurisdictional error. The thesis draws on both socio-linguistic and legal expertise in conducting the discourse analysis. It not only describes the review process but also investigates, analytically and critically, the interface of the institutional order and interaction order as this unfolds in the MRT hearings, and analyses in particular ways in which the Member handles the situation when his or her authority is being challenged – i.e. the strategies used and the various discourses employed. In concluding, the thesis makes suggestion for future research. It also recommends changes in future practices as well as in professional training that might be provided to the participants, including but not limited to Members and migration agents.