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.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey