Yet Another Hurdle For Asylum Seekers

By Fariha Zaima

Recently the Australian government has implemented a politically pragmatic but inherently unfair process which makes it much more difficult for asylum seekers to gain access to protection visas. On 5 December 2014, the Australian government passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Asylum Legacy Act”) which establishes a new process for assessing asylum seeker claims for persons who arrived in Australia between 13 August 2012 and 1 January 2014, and are still physically present within Australia. These asylum seekers are currently being invited to apply for Temporary Protection Visas (TPV) under the new Fast Track Assessment (FTA) process.

Applicants must fill in a detailed application form when applying for a TPV, providing all relevant details about their claim for protection. It is important that the details provided in the application are consistent with the answers given at the entry interview/s undertaken when the applicant first arrived in Australia. Any inconsistency may lead to the decision-maker concluding that the asylum seeker is lying or tailoring their story, which possibly may result in the denial of a TPV.

Evidence suggests that when people arrive by boat they are often distraught, fatigued or traumatised by the journey or events in their country of origin. The stressful nature of the journey, poor English skills and distrust of officials make it likely for there to be omissions or miscommunication in relation to the information provided at the official entry interview. And their exposure to corrupt institutions and authority figures in their home country may make it difficult for them to trust Australian officials. Brutality and violence have often become synonymous with the image of public officials in asylum seeker’s minds; thus arriving in Australia to hostile government officials who are asking probing questions about traumatic and sensitive information can result in the build-up of further mistrust. The combination of these situations mean that asylum seekers often find it difficult to disclose personal matters at the entry interview stage.

While the FTA process only applies to a limited group of people, there is a broader point at stake. If the only opportunity that an asylum seeker has to provide information crucial to their application is at the entry interview stage, Australia needs to rethink how we conduct those initial interviews. First it is important that asylum seekers understand the legal context in which the interview takes place, and are fully informed about their human and legal rights. They also need to be clear on the roles and powers of those people present at the interview. It may be that the only way to achieve this is to ensure asylum seekers have legal representation or independent assistance at the interview. Second, it is unlikely that the asylum seeker will be able to provide crucial information unless their physical needs are met, such as being well rested, bathed and fed. Treating asylum seekers like human beings is likely to make them feel safe enough to disclose important information relevant to their claims. Thirdly, it seems clear on the evidence that extensive training is required by those conducting the interviews of how to ask the ‘right questions’ and to ensure they have the necessary interviewing skills. The current interview structure avoids eliciting information that might engage Australia’s protection obligations. Clear open-ended questions which enable asylum seekers to provide difficult information is vital.

The new FTA process fails to consider these issues entirely. Prior to the FTA, asylum seekers were able to seek a full merits review through the Refugee Review Tribunal (RRT) of any decision made about their claims of protection. The decision-makers under the RRT were able to take into account any factor that may have led to the omission or inconsistency of information. Consideration of new information is what led to the extraordinarily high success rates of independent merits review processes such as the RRT. Evidence suggests that independent merits review processes can overturn, depending on the situation and country of origin of the applicant, up to 100 per cent but generally between 70-80 per cent of preliminary decisions made by the Immigration Department. These damning figures illustrate the importance of proper review processes, as the consequences of erroneous Departmental decisions can be fatal.

However, under the new Immigration Assessment Authority (IAA) established by the FTA, the applicant must demonstrate ‘exceptional circumstances’ in order to introduce new information into the review process. The threshold for ‘exceptional circumstances’ is intended to be high and is likely to only be recognised if the applicant’s circumstances have changed. For example, this may include a rapid deterioration of conditions in the applicant’s country of origin, or evidence of ‘significant torture and trauma’ which, if known, would have affected the consideration of the claim. The applicant’s reasons as to why the information was not provided earlier and why it should now be considered relevant and admissible, must be accepted by the decision-maker.

Further, the FTA process means that asylum seekers in certain circumstances will not be able to access any form of review at all. As the Department has been known to be wrong in its assessment of claims, all departmental decisions should be reviewable. Refusing to provide asylum seekers with review options if they have previously been refused protection in Australia, another country, or by the United Nations High Commissioner for Refugees (UNHCR), fails to take into account any change in circumstances or the adequacy of the processes that led to the initial refusal to be taken into account. Additionally, barring applicants who have been determined by the Department as having provided ‘bogus documents’ to support their claims also reveals a lack of awareness about the nature of refugee flight, including the difficulties refugees face in obtaining identity and travel documents.

By creating the FTA process, the Australian government has created a system where vulnerable people are denied access to justice. The problems associated with the fast track process are a real and significant issue for many asylum seekers and requires immediate attention and rectification.

Fariha Zaima is a Bachelor of Laws and Psychological Science student at La Trobe University.

La Trobe