Two-tiered justice: The in-built bias in Australia's asylum seeker assessment system

04 March 2012 By Lawyers Weekly

Australia's two track refugee assessment system for asylum seekers has an inbuilt bias. Lawyer and former refugee assessor Jack Hoysted explains why.Between October 2008 and December 2010, the…

Australia's two track refugee assessment system for asylum seekers has an inbuilt bias. Lawyer and former refugee assessor Jack Hoysted explains why.

Between October 2008 and December 2010, the Department of Immigration approved 94 per cent of all refugee status claims by asylum seekers who arrived by boat, according to figures obtained by The Australian under Freedom of Information laws. Those same figures show that in the first half of this financial year the department approved only 39 per cent of protection visa requests made by non-boat - the better safeguarded onshore track.

How can this be the case?


A two track system

Australia presently has a two-track refugee assessment system. The first track we can call Onshore Assessment. Asylum seekers who have arrived in Australia with their travel documents and a valid visa can apply in Australia for a protection visa under section 36 of Australia's Migration Act ("Act"). The criteria for being granted a protection visa is that the Minister for Immigration ("Minister") is satisfied that the applicant is a person to whom Australia owes protection, generally being someone who meets the definition of a refugee as set out in the 1951 International Convention relating to the Status of Refugees, ("Convention"), or is a family member of a person owed such protection. The Convention defines a refugee as follows:

"A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.."

Onshore applicants are those who have arrived in Australia on a valid visa such as a visitor or student or business visa, they are generally living in the community, sometimes their visa allows them to work, and they usually have easy access to lawyers and other support.

Their applications for a protection or refugee visa are assessed in the Australian Department of Immigration and Citizenship, by a Departmental Officer who is a Delegate of the Minister, and if they are unsuccessful, they have rights of appeal to the Refugee Review Tribunal under sections 411 and 412 of the Act.

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If they are unsuccessful at the Tribunal, the asylum seekers may seek judicial review under Part 8 of the Act to the courts, although those rights of appeal have been partly restricted by various legislative attempts to curtail judicial review.

Most applicants for refugee protection in Australia are assessed in the Onshore stream.

The second track is Offshore Assessment. These are asylum seekers who arrive on Australian territory which has been excised from the migration zone without a valid visa. They most commonly arrive at Ashmore Reef or Christmas Island, in the Indian Ocean north-west of mainland Australia, having travelled by boat from Indonesia.

These asylum seekers do not have an automatic right to apply for a protection visa under section 36, because section 46A of the Act provides that an application for a visa is not a valid application if made by an offshore entry person who is in Australia and is an unlawful non-citizen, i.e. one who doesn't hold a valid visa.

The assessment process

So how do these asylum seekers get assessed for a refugee visa?

The Act confers on the Minister, the power to lift this bar to an application, and to grant a visa to the asylum seeker. Section 46A(2) states that if the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination. This is called lifting the bar.

In practice, what this has meant, is that if offshore asylum seekers make claims that prima facie engage Australia's protection obligations under the Convention, i.e. that they claim to be refugees, then their claims are assessed by officers from the Department of Immigration and Citizenship under a Refugee Status Assessment protocol developed by the Department.

If the Departmental officers conclude that the asylum seeker is a genuine refugee, they make a recommendation to the Minister, who in most cases exercises his right under section 46A(2) to "lift the bar" and grant the asylum seeker a protection visa, subject to the usual health and security checks.

If the application is unsuccessful, the asylum seeker can ask for an Independent Merits Review of that decision. That review is conducted by a contractor employed by the Department. The contractors are often times former members of the Refugee Review Tribunal or others experienced in refugee status determination. The review is carried out under a further protocol developed by the Department.

"Remarkably it is the second track, with much less legal protection of the rights of asylum seekers, which produces vastly better results for applicants."

Until recently, these offshore entry applicants had no access to the courts, and even today, just how much this process is subject to review by the courts is open to speculation.

In a significant decision of the High Court in M61/2010E v Commonwealth of Australia (2010) HCA 41, the Court decided that, at the very least, the decision-makers, be they Departmental officers or contractors, were required to afford procedural fairness to asylum seekers and to act according to law. This case was brought by two Sri Lankan asylum seekers who had been unsuccessful in the offshore track. The court found that contractors in each case had failed to afford procedural fairness because they had not dealt with certain claims raised by the asylum seekers, and had not put adverse information to the asylum seekers.

Before the High Court extended some form of judicial review to the offshore track, one would have expected that it would be the onshore assessment track, with easy access to lawyers and the Refugee Review Tribunal, and some access to judicial review, which would produce the best outcomes for asylum seekers.

A surprising outcome

Remarkably it is the second track, with much less legal protection of the rights of asylum seekers, which produces vastly better results for applicants. And, as mentioned above, The Australian 94 per cent of offshore applicants succeed, compared to 39 per cent in the lawyer-rich and seemingly more generous onshore track.

How does this happen?

Refugee advocates claim that this simply shows that the asylum seekers who arrive by boat are genuine refugees, and that while some asylum seekers who arrive by plane are also genuine refugees, they are fewer in number.

It is true that countries such as Afghanistan or Sri Lanka, which are more likely to produce refugees, are more heavily represented in the offshore track; whereas many of the applicants in the onshore stream are from countries such as India or Indonesia, where there are less likely to be refugees.

However there are sufficient numbers of Sri Lanka applicants in both streams to make a comparison. In the last year, the Refugee Review Tribunal set aside the Department's decision to refuse a protection visa to Sri Lankan applicants in only 31 per cent of cases, showing that many Sri Lankan applicants in the onshore track are unsuccessful, but almost none in the offshore track are.

So could there be advantages in the offshore track?

There is one other major known difference in the two tracks. Applicants in the onshore assessment inevitably have to produce their passport, and the decision-makers have access to their original visa application and all the supporting documents.

Applicants in the offshore assessment track almost never produce passports or other documents, although in almost all such cases they have used passports to enter Indonesia or Malaysia.

Does a No-Doc application make a difference?

Could the absence of documentation make a difference? I believe it can and does, and this can be explained by looking at how refugee assessment works.

Asylum seekers make claims that they fear that if they were to return to their own country they would be persecuted. In support of those claims, they are required to set out who they are, their history and background, and detail events that have happened to themselves and others with whom they share a history, or with whom they are associated.

In the onshore track, the asylum seeker's identity, claims and history can and will be cross-checked against the supporting documents that they themselves have provided. This will usually mean a passport, but may also include travel, educational, employment and residential histories and documents. For instance, the applicant's claims will be checked against his or her known movements as disclosed by the passport, or by residential or educational records produced in support of a visitor or student visa, and the applicant will be invited to explain any discrepancies. If an applicant claims to have been present at a momentous event in the history of their country, then the documentary evidence must support that presence. If an applicant claims to have been on the run from the authorities for some period of time, then they would need to explain any employment or educational records which may cast doubt on this.

In the offshore track, an asylum seeker who does not produce any documents has a near blank canvas on which to sketch their identity, claims and history.

In that situation, the decision-maker can only check the claims for internal consistency, and compare them to general information known about the country in question. That is, the decision-maker can check that the applicant can give consistent answers to questions about his or her claim, and that the claims are consistent with information known generally about the country of origin. What the decision-maker doesn't have is any other known reference points - no travel, educational, residential or family history, against which the applicant's identity, claims and evidence can be measured.

This, of course, involves a much less rigorous examination of the applicant's claims and history than is available in onshore assessment.

Provided the identity and claims are plausible, i.e. they fit in with information known about the country of origin and pass a common sense test, they are likely to be accepted, whether or not they are true.

If the application discloses a prima facie case for protection and the applicant makes a reasonably good fist of giving the evidence, and the claims are not in great conflict with reliable information about the country in question, then the decision-maker will give the applicant the benefit of the doubt, as is rightly encouraged by the law and good practice, and the applicant is very likely to succeed.

The result: a 98 per cent success rate for boat arrivals.

Successive Australian governments have been keen to discourage asylum seekers from arriving by boat, but there's little they can achieve when arriving by boat without documents can provide for an easier way to ultimately obtain a protection visa.

About the author

Jack Hoysted is a lawyer with 25 years of experience and more than 10 years experience in refugee assessment. He was a member of the Australian Refugee Review Tribunal from 1994 till 2004. The tribunal is a statutory body which has, since 1993, provided independent merits review of decisions of the Minister for Immigration to refuse to grant an applicant a protection visa. The decisions of the tribunal involve a de novo hearing of the application for a protection visa, and are conducted by a Tribunal constituted by a single member.

Jack is currently on the Advisory Board of the Hong Kong Refugee Advice Center. The Center provides legal representation to refugees seeking protection at the United Nations High Commissioner for Refugees in Hong Kong.

Two-tiered justice: The in-built bias in Australia's asylum seeker assessment system
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