Pearls and Irritations

The stories of ‘invisible’ refugees who had entered Australia by plane on valid visas seeking protection from their persecutors and encountered even more unspeakably harsh oppression in this country cast a blot on our culture.

For more than twenty years I have been negotiating with the Department of Immigration to have the claims of people seeking Australia’s protection fairly assessed and honourably reviewed. On one occasion I was told, ‘it is not about fairness, it’s about the law’! Back in 2005, in his inquiry into the detention of Cornelia Rau, Mick Palmer described ‘a system preoccupied with process and quantitative, rule-driven operational practice’. This system has since developed into a pervasive, all-consuming toxic culture which demands urgent, radical action.

My research during the past two decades has revealed that decision-makers presented incorrect information, withheld information, or ignored information. They manipulated material to allow them to refuse protection applications. In some cases, there was no interview to clarify anomalies. The brevity of procedures and decisions and the unwillingness of assessors to conduct interviews indicated a lack of interest on the part of the assessor in fairly evaluating claims of persecution and implied a preference for negative outcomes.

When interviews became common practice, support people or advocates, like myself, could attend as observers. Nevertheless, as just one example, I was refused permission to be present with a young couple during their interview. From that moment, as I sat in the waiting area, I knew the interview wouldn’t go well. ‘Diego’ and ‘Paola’ emerged white-faced. Shocked. They couldn’t believe the rudeness of the man. They were embarrassed by the fact that they had been laughed at when responding to questions. They felt totally belittled.

In another example, ‘Nankunda’ had her first opportunity to explain the content of her application form at the Administrative Appeals Tribunal. The documents she originally submitted to support her claims were misinterpreted by the tribunal reviewer who concluded erroneously that those documents were not based on true incidents. The reviewer claimed that Nankunda ‘composed her claims using ideas and terminology she found in a random assortment of articles downloaded from the internet’. In her home country, other people had also experienced the kind of persecution that Nankunda had undergone, but rather than indicating that similar incidents occurred in that country, publicly available documentation was used against Nankunda. Her claims were repeatedly called ‘implausible’. After receiving the review decision, Nankunda collapsed and was admitted to a psychiatric ward in a public hospital.

When judges in the courts lost the power to decide on the merits of a case of persecution they were restricted only to a finding on whether the tribunal reviewer had made a mistake in law. In addition, judges lost the power to waive the court fee for the person seeking protection who was also not allowed to earn an income because of the ‘no work’ requirement on their Bridging visa.

In 2008, former judge John von Doussa wrote in his report, ‘Bill of rights is essential to best serve human rights’, that after five years at the Human Rights Commission, he could no longer in good conscience support the familiar refrain that rights are best protected by the common law and Parliament. He was convinced of the need to ensure ‘that all three arms of government – the Executive, the Legislature and the Judiciary’ take care when they make decisions that have an impact on basic human rights. The best way was ‘to introduce a statutory charter of rights’.

In Speaking Up (MUP 2018) Gillian Triggs argued that a legislated charter of rights would encourage compliance without resorting to litigation. Where a case proceeds to court, a charter would send a law incompatible with rights back to parliament for amendment and reform. This ‘dialogue model’ preserves the supremacy of parliament and representative democracy.

Without a model like that suggested by Triggs, a charter of rights might protect detainees and less visible cohorts of people seeking Australia’s protection, but it will not change structural exclusionary policies and practices that have evolved since colonisation. There still exists systemic discrimination especially through the power of Parliament to introduce exceptions that pertain to people who are not Australian citizens, people indigenous to Australia and some members of marginal communities, with cruel and inhumane consequences.

Addressing the perception of government that its own decisions should prevail in the struggle to maintain the separation of powers between the parliament and the courts; and building decision-makers’ intercultural competency might be helpful. Further suggestions for developing a fairer system follow, not necessarily in order of importance:

• Review the Migration Act to re-align with Australia’s United Nations Human Rights obligations and abolish the ‘no work’ clause that restrains parents’ obligations to appropriately provide for their children

• Re-align with the international definition of a Refugee and discard the discriminatory Australian version. Internationally, a family is an accepted social group and the persecution of an individual member can result in other members of their family also being targeted or endangered.

• Examine discriminatory laws. As for all Australian citizens, courts should be allowed to examine the merits of a claim, such as those for protection. Legal exceptions should not be permitted when the consequences are acts of cruelty. The courts are expected to protect all people living in Australia, be they citizens of another country, stateless people or Australian citizens.

• Introduce boundaries whereby the Minister is obliged to act upon the recommendations of the personnel who examined the claims in the light of the law, UN obligations, current country information and community support. The Minister’s decision must be explained and open to further review. Presently the Minister’s power is ‘non-compellable, non-reviewable, and non-delegable in domestic law’. A parliament that introduces laws into the Migration Act with no obligation to adhere to them results in a Migration Act that is merely tokenistic.

• The provision of practitioners well versed in international refugee law at the outset of the refugee determination assessment would avoid later drawn-out legal processes and expensive reviews. It would be far fairer and more efficient economically to ensure that each person applying for protection is assisted in preparing their claims by free competent legal practitioners.

• It would improve the quality of decisions made in an intercultural environment if all decision-makers involved in judgments, policies and laws regarding people seeking protection had compulsory training in recognising personal racist attitudes and values, be they public servants, tribunal reviewers, judges or parliamentarians.

• To safeguard fairness and to avoid discriminatory clauses and tokenism, the Ministerial Guidelines outlining the procedures for assessing and reviewing the claims of people who seek protection need to be re-examined. Women and children have universal rights that cannot be overlooked by those assessing claims of persecution. Rape is a powerful weapon and should be recognised as legitimate persecution. Children have the right to develop in a safe and secure place. Submission of new information should not be limited to only one ministerial request. Rather than being deemed ‘fraudulent’, documents signed by an overseas Notary should carry the same weight as those signed in Australia by a Justice of the Peace. The same goes for letters of support on official letterhead.

• A separate office or Peoples’ Protection Assessment Centre to determine protection claims, independent of the Department of Immigration, might avoid political interference. If Key Performance Indicators (KPIs) were based on the number of legitimate, positive decisions made, departmental assessors and advocates would no longer suffer the toxic culture which has developed within the Department of Immigration.

• A tribunal that is not independent is not acceptable for reviewing decisions, especially when some decisions can result in serious harm. Abandon the tribunal review. It would be just, practical and economical to replace the tribunal with a dedicated Peoples’ Protection Court like the Family/Children’s Court. If people seeking protection access fair assessments and are found to need protection, there should not be an annual quota on the number of people assessors recognise as refugees.

With a new government settling in, let’s not forget the urgent need to reform the discriminatory Department of Immigration assessment and review system regarding claims for Australia’s protection. The new Prime Minister, Anthony Albanese, is calling on all people in Australia to respect each other. I am confident that he intends such respect to include Australian citizens, citizens of another country and those who find themselves stateless.

The most appropriate way to show respect to people seeking Australia’s protection, and the taxpayer is to make fair and honest assessments of claims of persecution.

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