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4 Proposed policy changes

Prior to the federal election on 7 September 2013, the then Opposition announced a number of policies which it would implement, if elected, to deter asylum seekers arriving in Australia by boat and to reform Australia’s refugee status determination process.

Some of the key proposals which are relevant to the Commission’s mandate are briefly considered below.

4.1 Temporary Protection Visas

When in opposition, the newly elected Australian Government announced that it intends to introduce Temporary Protection Visas (TPVs) for all unauthorised maritime arrivals in Australia who are determined to be refugees. The Government has stated that the conditions which will attach to these TPVs (which will be granted for no longer than three years at a time, but will be renewable), will include that the holders:

  • will not be entitled to permanent residence in Australia, unless the Minister exercises his power to decide otherwise
  • will have no right to bring family members to join them in Australia
  • will not be able to leave and re-enter Australia
  • will have the right to work, subject to certain restrictions.

Temporary protection for refugees is not prohibited under the Refugee Convention. However, UNHCR recommends that it is only used in limited circumstances to meet urgent needs in the event of mass cross-border displacement.[191]

The Commission raised serious concerns about TPVs when they were last used in Australia (with very similar conditions attached) from 1999 to 2008,[192] and opposes their reintroduction for a range of reasons.

First, the granting of protection to refugees on a temporary basis, and the resulting uncertainty about their future, had a detrimental impact upon the mental health of TPV holders in the past.[193] It also affected their capacity to participate fully in social, employment and educational opportunities offered in Australia.

Second, the absence of a right to family reunion, combined with the effective ban on overseas travel, meant that some people faced prolonged and indefinite periods of separation from their families.[194] This had further serious impacts on some people’s mental health and wellbeing. Furthermore, the lack of family reunion rights may have encouraged some family members, particularly women and children, to undertake the boat journey to Australia.[195]

Third, by limiting the grant of TPVs to refugees, on the basis that they arrived by boat without authorisation, Australia may be discriminating against this group contrary to the ICCPR and the Refugee Convention.[196]

While the Commission does not support the introduction of TPVs, it strongly welcomes the proposal to allow refugees the right to work.

4.2 Reform of the refugee status determination process

When in opposition the newly elected Australian Government announced the following proposed reforms to the refugee status determination system:

  1. A ‘rapid audit’ of the refugee status determination process, ‘with a view to removing appeals to the Refugee Review Tribunal’.[197] The proposal was to have a non-statutory assessment and review process that would not include independent merits review of negative decisions.
  2. A new ‘fast track assessment and removal process’ which is to be modelled on the ‘Detained Fast Track’ (DFT) system in the UK.[198] In this process, cases considered ‘less likely to be successful’ and able to be ‘determined readily’ would be put into a ‘rapid assessment’ stream. The aim would be for those cases to be determined by a departmental officer within 14 days. If initially unsuccessful, an asylum seeker would have the case reviewed by another departmental officer within another 14 days. Where the review is unsuccessful, the intention would be for removal to be effected within 21 days. It is intended that the total process would be completed within 3 months.[199]
  3. Withdrawing the Immigration Advice and Application Assistance Scheme (IAAAS) for asylum seekers who arrive unauthorised by boat.

Australia’s compliance with its human rights and non-refoulement obligations is dependent on the existence of a robust and fair refugee status determination system.

UNHCR has identified several key procedural safeguards for a fair and efficient refugee status determination procedure. These include that an appeal should be considered by an authority different from and independent of that making the initial decision, and that where an appeals process is expedited, it is particularly important that asylum seekers have prompt access to legal advice, interpreters and information about procedures.[200]

The Commission is concerned that the proposals of the new Government risk stripping away procedural safeguards and the protection of fundamental freedoms which could ultimately lead to refugees being returned to situations of danger, in breach of Australia’s human rights obligations.

In 2011–12 the RRT overturned 82.4% of primary decisions by the Department to refuse protection visas for asylum seekers who arrived by boat.[201] During this period around 90% of asylum seekers arriving by boat were granted a protection visa.[202] This high rate of approval has generated significant debate about the effectiveness of the refugee status determination process in Australia. However, the Expert Panel on Asylum Seekers noted in August 2012 that this high approval rate was ‘broadly consistent with UNHCR refugee status decision approval rates for similar caseloads in Malaysia and Indonesia’.[203]

The Commission opposes any proposal to remove an independent merits review process from refugee status determination in Australia.

The Commission acknowledges that there is a significant backlog of asylum claims to be processed and the need for efficient processing. The Commission will wait to see how the proposed ‘fast track assessment and removal process’ provides safeguards such as independent merits review.

There has been significant criticism of the UK’s DFT system.[204] Determining straight forward cases has proven to be difficult in that screening process; groups who are not supposed to be placed in the fast-track system (such as victims of torture and children) have ended up there, and tight timeframes are often not able to be met, resulting in prolonged detention of asylum seekers.[205] It should be noted that in the UK only about 10% of asylum seekers are subject to the DFT system which is intended to apply to straight forward cases.[206]

The Commission is also concerned that withdrawing free legal assistance under the IAAAS may increase the chance asylum seekers will be returned to situations of danger. UNHCR considers that ‘free and independent legal counselling’ from the beginning of the asylum procedure is required to ‘ensure the effectiveness of the protection system’.[207] Without legal assistance asylum seekers, many of whom are vulnerable and do not speak English, may face difficulty in navigating the complex legal migration framework, negatively impacting on their ability to present their claims adequately.

[191] UNHCR, Global Consultations on International Protection: Protection of Refugees in Mass Influx Situations: Overall Protection Framework, UN Doc EC/GC/01/4 (2001), paras 4, 13, 14 and 15. At http://www.refworld.org/docid/3bfa83504.html (viewed 1 October 2013).

[192] See, for example, HREOC, A last resort?, note 41, Chapter 16.

[193] See, for example, Z Steel et al, ‘Two year psychosocial and mental health outcomes for refugees subjected to restrictive or supportive immigration policies’ (2011) 72 Social Science & Medicine 1149. In relation to the impact of TPVs on the mental health of children, see the discussion in HREOC, A last resort?, note 41, Chapter 16.

[194] See HREOC, A last resort?, note 41, section 16.2.2.

[195] Evidence to the Senate Standing Committee on Legal and Constitutional Affairs (Estimates), Canberra, 24 February 2009, p 73 (Senator Chris Evans, Minister for Immigration and Citizenship). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Festimate%2F11640%2F0001%22 (viewed 1 October 2013).

[196] See ICCPR, art 26 and Refugee Convention, art 31. See further the commentary of the Parliamentary Joint Committee on Human Rights in relation to the (now lapsed) Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013 (Cth) in its Third Report of 2013: Bills introduced 5–28 February 2013 (2013), paras 1.147 – 1.164. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/32013/index (viewed 1 October 2013).

[197] The Coalition’s Policy to Clear Labor’s 30,000 Border Failure Backlog, August 2013, p 7. At http://www.liberal.org.au/our-policies (viewed 1 October 2013).

[198] The Coalition’s Policy to Clear Labor’s 30,000 Border Failure Backlog, above, pp 7-8.

[199] The Coalition’s Policy to Clear Labor’s 30,000 Border Failure Backlog, above.

[200] UNHCR, Global Consultations on International Protection: Asylum Processes, note 154, para 43.

[201] Department of Immigration and Citizenship, Asylum Trends – Australia 2011–12 (2012), p 30. At http://www.immi.gov.au/media/publications/statistics/ (viewed 1 October 2013).

[202] Department of Immigration and Citizenship, above, p 31.

[203] A Houston, P Aristotle and M L’Estrange, note 8, p 27.

[204] See for example Detention Action, Fast Track to Despair (2011). At http://detentionaction.org.uk/fast-track-to-despair-report-published (viewed 1 October 2013).

[205] See for example the concerns expressed in Independent Chief Inspector of the UK Border Agency, Asylum: A thematic inspection of the Detained Fast Track – July-September 2011 (2012), p 3. At http://icinspector.independent.gov.uk/wp-content/uploads/2012/02/Asylum_A-thematic-inspection-of-Detained-Fast-Track.pdf (viewed 1 October 2013).

[206] See note 115.

[207] UNHCR, Discussion Paper on Recommended Reception Standards for Asylum-Seekers in the Context of the Harmonisation of Refugee and Asylum Policies of the European Union (2000), para 19. At http://www.refworld.org/docid/3ae6b3378.html (viewed 1 October 2013).