“The elephant in the room”: the refugee status determination process
Dec 5, 2024
Having befriended and worked closely with many Asylum Seekers for the pasts 14 years I have no hesitation in highlighting a key problem with the recent Migration Bill changes. It is the uncritical assumption that the refugee status determination process is professional and fair and sensitive to changing realities. That assumption is simply not true.
There are literally hundreds of innocent victims of the demonstrably flawed process, and many of these will be vulnerable to further unspeakable suffering if these changes were to be enacted and applied. Certainly, imprisonment would be better than Immigration Detention (according to the universal testimony of those who have experienced both), but deportation to real danger (even though the decision makers believe it does not exist) would be the worst.
Several years ago I wrote concerning the refugee status determination process:
I have read about 200 rejection reports and analysed many of them in detail, usually against considerable knowledge and understanding of country contexts. I conclude with some confidence that in general the processes used for assessing and reviewing the claims of asylum seekers are deeply flawed, demonstrably deficient in terms of professionalism, transparency, consistency and accountability, let alone honesty. Clearly, political considerations play a dominant role. The label “found not to be a refugee” often represents a set of cruel mistakes, and it flags long battles with courts and the Department, prolonged detention, possible deportation to danger or, where forced deportation (e.g. to Iran) is not possible, a life in intolerable limbo. Many submissions to the Senate Joint Select Committee of 2011 and to the Expert Panel addressed this issue with unanimous voice. Number 15 of the 22 recommendations of the 2012 ”expert panel” was “a thorough review of refugee status determination”, yet as far as I am aware this has never been done. Contrast this with the great alacrity with which most of the other recommendations were implemented, most noteworthy Manus and Nauru. I would be less concerned if it was just an academic exercise, but it is about human lives. It blights, perhaps more accurately destroys, thousands of lives, especially if we include the separated families. . . . I look into the eyes of innocent suffering every day.
I reiterate my plea for a thorough and professional review of the refugee status determination process, consistent with the long neglected recommendation (#15) of the July 2012 “Expert Panel” report commissioned by the Gillard government.
Several examples illustrate my points.
- The particular person (called ASF17) whose case was recently determined by the High Court is an Iranian citizen who was held in immigration detention for a decade. He failed in his application for a protection visa and was therefore subject to a legal obligation that he be deported as soon as reasonably practicable. But understandably he was refusing to meet with Iranian officials to secure the necessary travel documents. He said he had good reasons not to want to be returned to Iran: he is bisexual, has converted to Christianity, is Kurdish and has opposed the mistreatment of women by the Iranian government. Bisexuals are illegal in Iran and subject to punishment that includes flogging and even death. Persecution of Christians has escalated markedly in recent years and is not limited to leaders nor restricted by questions of sincerity: reputation is the key. Persecution of Kurds by government forces and agencies has escalated in relation to nation-wide protests that have followed the death in custody in September 2022 of Mahsa Amini, a young ethnic Kurdish woman who was detained by morality police for allegedly wearing her hijab “improperly”. Dissidents – who oppose Iran’s inhumane polices such as the treatment of women – are vulnerable to arrest, flogging and imprisonment, with no hope of legal protection. Without doubt ASF17 would face extreme danger in present-day Iran. At the very least the situation has changed since the original rejection of his claims a decade ago – whatever the soundness or otherwise of that decision. If nothing else, the original decision should be reviewed on the basis of possible changing circumstances. Sadly, the policy has long been never to admit the possibility of a mistake.
- Hundreds of refugees from Afghanistan are still struggling to obtain permanent protection visas in Australia, having faced repeated rejections over many years. Why? The decision makers have clearly got it wrong again and again and were caught by (unwarranted) surprise when the Taliban took over. Does the Department expect to “find” that it would be safe for some of them to return? What if they are uncooperative? Will they be subject to further unfair punishment?
- Many Asylum Seekers in Australia from Sri Lanka still struggle to obtain recognition as genuine refugees. I know many of them very well. Successive governments have been in denial about the ongoing dangers for Tamils and Christians in Sri Lanka. Forced deportation would be fraught with certain danger and suffering. Punishment for non-cooperation would be unconscionable in these circumstances. The key issue is that most “no-cooperators” are scared to death – for good reasons – and the flawed determination process has failed them.