Pearls and Irritations

As Principal Solicitor at the Asylum Seeker Resource Centre, my team and I meet people seeking asylum every day. We see their suffering as they struggle to access basic rights in an intimidating and often hostile system, and we see the effect on them of vilification and exclusion in public discourse.

With a new government, and upcoming national review of the broader migration system, we have a unique chance for urgently needed reform, allowing people seeking asylum access to an application process that is fair and efficient while providing them with the basic rights needed to rebuild their lives.

However, the unsubstantiated, alarmist and anti-refugee rhetoric deployed recently by the Nine Network, accusing tens of thousands of people seeking asylum of making ‘fake’ claims, is not only incorrect but diverts attention from the critical task of fixing Australia’s migration system and perpetuates the tired, politicised, militaristic discourse that has led to so many poor policy choices over recent years.

Successive governments have left Australians with a chaotic, cumbersome migration system characterised by undue complexity and delay, with little funded legal support or information available to the community. They have manufactured insecurity for people seeking asylum.

Taking on the task of repairing this system, the Albanese Government must be careful to avoid the rhetoric and misinformation that blighted previous policy-making. Tarring the victims of syndicated crime, such as trafficking, with the same brush as their criminal exploiters is disingenuous, and any attempt to shift the responsibility for the current system onto people seeking asylum, is a distraction at best.

This is a problem that requires swift, pragmatic and humane action, grounded in a clear understanding of the key features of our existing refugee status determination process.

Understanding the refugee status determination process

There is no question that the protection visa application process is far too long. There are currently thousands of people awaiting a decision.

Where a person’s claims are clearly unmeritorious, the decision-makers can and do identify and expedite those applications without difficulty.

If an application is refused, however, it does not mean a person has bogus or unmeritorious claims. At the most basic level, visa refusal means simply that you haven’t been able to satisfy strict criteria according to a particular decision-maker, not that you don’t have genuine and reasonable fears of persecution.

Further, a refused protection visa does not mean you are not a refugee (as some coverage suggests), nor can assumptions be made based on the country you are from.

The possibility of error is precisely why we have review processes, such as the Administrative Appeals Tribunal (AAT) and the federal courts. This is fundamental to our justice system.

The Department of Home Affairs and AAT routinely get it wrong and are corrected on review.

The team at ASRC have seen recent Department refusals overturned for women fearing gender-based violence from Ethiopia, Nigeria, Malaysia, Uganda, and Papua New Guinea.

There have been cases of LGBQTI+ people from Malaysia, Nigeria, Pakistan, and Iran, and for people fearing persecution for religion, race or nationality in Pakistan, Myanmar, and Afghanistan, amongst many others.

These people were found to be refugees, despite initial refusals.

This is not just our experience. Putting aside questions about the integrity of decision-making, including ongoing concerns about independence, AAT statistics show that in the last financial year, the Department got it wrong in 50% or more cases concerning protection visa cases appealed from Ethiopia, Iran and Iraq, 45% of decisions from Pakistan, and nearly 75% of cases from Papua New Guinea.

Even more troublingly, many people can’t or don’t seek review, because the process is complex, intimidating and punitive, with failure to act within strict deadlines resulting in loss of access to review.

Where people do seek review, their chances are significantly impaired if they can’t access legal help. In court, at least half of people seeking asylum are unrepresented. This is in a system where having a lawyer makes you 6 to 7 times more likely to succeed.

Indeed, this financial year, the AAT has found people to be refugees in 53% of cases where courts have quashed their original decision for legal error, indicating that not only was the original decision legally defective, but it was also wrong to refuse the application.

Let’s be very clear about what errors in protection visa decision-making represents: refugees who would have been removed from Australia if they hadn’t sought review. It’s impossible to know how many cases have been determined in error where people have not sought review.

If people were able to access ethical legal support, it follows that more people would access their rights and that the success rate would be considerably higher.

Few decisions are more serious than whether a person would be subject to persecution if expelled from Australia: it is vital to counter misinformation, and reform is needed urgently.

Solutions

Firstly, the government needs to clear processing backlogs and ensure sensible processing times at all stages, including by properly resourcing an independent and appropriately qualified review body.

Secondly, people seeking asylum need to be given access to clear information about the visa system, ethical legal advice and assistance, and work rights. This will assist the quality and speed of decision-making, and mean people are properly informed and at less risk of exploitation.

Thirdly, criminal or fraudulent operations should be sensibly and quickly dealt with, including by quickly processing unmeritorious claims and targeting and sanctioning the organisers, as has been the Department’s practice. It goes without saying that a fast and effective system and empowered communities remove the basis for any exploitation.

Plainly, it is not an ‘enforcement’ approach that is needed – this rhetoric is an unwelcome and disappointing distraction, and a cornerstone of the current failed system.

The Albanese Government should prioritise the delivery of a fair, efficient, transparent and apolitical system.

As a community, we need to reject stale, divisive rhetoric that is not only misleading but dangerous and threatens to derail meaningful reform.

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