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Crikey Clarifier: is an appeal a free ride for asylum seekers?

Just why is it that so many of the protection visa applications that get rejected by the department of immigration get overturned on appeal? Crikey asked the experts.

Every few months the same story appears in the media: about 90% of asylum seekers who had protection visa claims rejected by the Department of Immigration get them overturned on appeal. Cue claims that any asylum seeker arriving by boat will almost certainly be allowed to remain in Australia.

Or, as opposition immigration spokesman Scott Morrison told The Australian: ”Under Labor’s appeals process a ‘no’ almost always turns into a ‘yes’ and the prize of permanent residence for people who arrive illegally by boat.”

You can set your watch by it,” said Professor Mary Crock, an immigration law expert from the University of Sydney.

The latest statistics show that since last July, 503 of the 676 people who appealed had the Immigration Department’s rejection overturned by the Refugee Review Tribunal. But is it an outrage that so many of the department’s decisions get overturned, or does it show a system that works? Crikey asks the experts …

What it shows is that there are fundamental flaws in the way in which the Department of Immigration assesses refugee status,” David Manne, executive director of the Refugee and Immigration Legal Centre, told Crikey. “The discrepancy and rate of overturns has been a pattern for a number of years. The fact that such a high proportion of people are only recognised as being in need of protection against severe human rights abuse by the tribunal is a matter of profound concern.”

Any asylum seeker who comes to Australia, either by air or sea, is offered free legal advice and interviewed by the department about his or her asylum seeker claim. If rejected (often because of issues such as a failure to provide proper identity papers), asylum seekers are able to seek more legal advice and have their cases heard by the tribunal. It usually takes 90 days from when the department’s documents arrive to when the appeal is held by the tribunal.

What this clearly demonstrates is that there are fundamental flaws in the primary decision-making.”

The department’s decision-making process can be “incredibly crude”, says Crock. “They work under a taskforce mentality. Asylum seekers are interviewed by the department, and the decision is made. It can depend on whether you get the right interpreter or not.”

But as Crock notes, the process shows that the majority of asylum seekers who come to Australia are genuine refugees. ”How assessments are made and the pressure decision-makers are under — it’s not surprising that people who are rejected in the first instance do better on appeal,” said Crock.

She says one of the main benefits for those appealing is time: “They wait for months and months to appeal, and there’s all that time to put together a case.”

Though, as Manne notes, the tribunal is doing exactly what it should be doing: fixing the errors made by the department. ”It’s very common in administrative law system for merit review processes to have a corrective nature to them. It’s a core aspect of them.”

However, the “rates of overturn are highly unusual, and the significantly high proportion is aberrant in a administrative law system. What this clearly demonstrates is that there are fundamental flaws in the primary decision-making.”

A spokesperson for the Department of Immigration told Crikey one of the recommendations of the Houston report was a review of the refugee status determination system, and “the department is currently developing advice to the minister on how this review should be conducted”.

Manne said there had recently been “dramatic shifts” in approval rates by the department for claims by Afghans or Sri Lankans, despite very little change in the human rights situation in those countries. ”And the question that hangs heavily is why,” said Manne.

In 2011-2012 period, 14,415 applications were lodged for protection visas, with around half of those coming from asylum seekers who arrived by boat. Around 90% of those rejected by the department appealed the decision. In the 2011-12 period, 89% of appeals were overturned by the tribunal. The rate of appeal by the Refugee Review Tribunal is also fairly consistent with the Migrant Review Tribunal, which reviews student, family and work visas.

Protection visas apply both to refugees and to those deemed in need of Australia’s protection because “there is a real risk the non-citizen will suffer significant harm” if returned to their home country.

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  • 1
    oldskool
    Posted Monday, 18 March 2013 at 3:28 pm | Permalink

    What does not appear to have been mentioned is that the ‘appeal’ does not have to be on the same grounds as the original DIAC assessment. ie. if a refugee was claiming throughout their DIAC interview process that they are a Christian and therefore subject to persecution, their ‘appeal’ can be on the basis that they are Gay and therefore subject to persecution. I am of the opinion that as a nationa we should be doing more for these refugee’ however I feel that DIAC is getting unfairly criticised in this article.

    Disclaimer- I do not currently work for DIAC, but I know many many people who do, especially in this field

  • 2
    shepherdmarilyn
    Posted Monday, 18 March 2013 at 4:35 pm | Permalink

    oldskook that is simply crap. If people change the basis for the protection visa they are called liars and frauds and endlessly denied.

    So what you are doing is lying just like DIAC do.

  • 3
    shepherdmarilyn
    Posted Monday, 18 March 2013 at 6:07 pm | Permalink

    And what is not said in the article is that the figures have been available for at least a month and that in the September to December quarter of last year Afghans were being accepted at a rate of 87% on DIAC interviews alone and 90% of the 13% refused were accepted on appeal.

    At that rate that means 87 per 100 Afghans were accepted by DIAC as refugees, then 11.7 of the remaining 13 were accepted on appeal.

    Which means that 98.7% of all Afghan applicants were found to be refugees. But we spent about $500 million a year to try and prove otherwise.

  • 4
    Posted Monday, 18 March 2013 at 6:40 pm | Permalink

    It may be that DIAC staff and independent assessors have been worded up in the past to enforce a political cap, instead of focusing exclusively on the grounds for refugee status under our treaty obligations. In other words taking into account a strictly irrelevant factor because the cap is a political matter, not a legal or treaty criteria as to refugee status which is their task.

    If an assessor is tempted by the cap into the gotcha approach about alleged inconsistencies in a refugee’s story chances are it will end up an appeal where more serious intellectual rigour is applied to the “inconsistency”.

    And there is a big problem applying an ill suited gotcha interview technique regarding inconsistency, more suited to a domestic criminal investigation methodology around police work. A misdirected approach because in the refugee sector inconsistency of story is just as likely due to failure of memory around torture events and post traumatic stress disorder not least the numbing effect of shock - how unsurprising; or psychological problems from detention witnessing self harms all over the place - bound to play with the mind; or the diabolical complexity of the politics of survival in countries under the heel of ultra violent regimes. In those places every angle of deceit and exploitation is practiced across the ethnic and political spectrum in societies broken by distrust. In that context a refugee’s story may be objectively very confusing and confused because violence is like that.

    The assessors are supposed to be across these complexities but some of the naive comments you read seem oblivious to nuanced political dramas, paramilitary double think, check points just to travel around, and oppressive fear under such regimes. Rather you get the impression they’ve run away from a jolly picnic in a fair ordered land under Queensbury rules, so there must be something deceitful in their inconsistency. Just as likely it is the assessor who is being unrealistic, and further time and analysis proves this up.

  • 5
    oldskool
    Posted Tuesday, 19 March 2013 at 8:53 am | Permalink

    Marilyn,

    I agree with a lot of your stand regarding refugee’s however, I have seen what I am talking about, you call crap- prove it- you can’t because it is you who are full of crap this time, and other times you have sprouted forth as well. You cannot change peoples opinions, or add to intelligent debate by forcing you own doctrine in place of rational argument. I have pointed out a major process in the ‘appeal’ to an independant body, and you call crap, well prove it, otherwise stop lying to make your point.

    By the way, when it comes to Hazara, Kurds and Tamils in particular I do not understand how we cannot find them to be in need of protection.

    I personally believe we should be increasing our humanitarian intake, sending our IMA processing teams to Malaysia and Indonesia and working through the backlog there, THAT, is the way to stop the boats, anything else is empty rhetoric or racism masquerading as ‘good policy’.

  • 6
    Clarke Steve
    Posted Tuesday, 19 March 2013 at 7:17 pm | Permalink

    Oldskool,

    Welcome to the club. This sounds like your first insult from Marilyn. But it is not a very exclusive club, as Marilyn has thrown some sort of abuse at anyone commenting on refugees(and it makes no difference if you are sympathetic to the plight of refugees or not).

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