Guest post by Chris Honnery. Chris specialises in administrative law and refugee law. He has represented asylum seekers in judicial review proceedings in Australia and Nauru, acting for applicants in refugee tribunal hearings and appearing on behalf of asylum seekers in the Supreme Court of Nauru. Chris previously worked as a legal researcher in London, co-authoring articles that were quoted in the New York Times. He is on Twitter @ChrisHonnery
Lord Bingham once declared, ‘asylum decisions are of such moment that only the highest standards of fairness will suffice.’ Australia deviated sharply from this creed with the advent of the Immigration Assessment Authority (IAA), a statutory body that undertakes a highly restricted form of merits review of asylum seekers’ protection claims under ‘fast track’ legislation. The Australian Labor Party had pledged to abolish the IAA but the re-election of the Coalition Government in May meant the IAA avoided the policy chopping block. With the major parties at odds over the expansion of the IAA’s remit and a disallowance motion to unwind the fast track scheme recently failing in the Senate, this post evaluates the impact of the fast track system in light of recent statistics. To date, the statistics show asylum seekers fare much worse under the fast track system.
The IAA was set up to deal with protection visa applications made by asylum seekers who arrived in Australia by boat between 12 August 2012 and 1 January 2014 and weren’t detained in offshore detention centres on Nauru or Manus Island. The amendments to Australia’s Migration Act that established the IAA and the fast track framework, which were only agreed to following frantic debate in the final hours of the last day of parliament in 2014, produced a second class of protection visa applicant. While asylum seekers who arrive in Australia holding a valid visa are entitled to an in-person merits review hearing through the Administrative Appeals Tribunal (AAT), those who arrived by boat without a visa are classed as ‘fast track applicants’ with limited review rights.
The bifurcation of merits review avenues for protection visa applicants by dint of their mode of arrival has meant that the AAT has been inundated with protection visa applicants from countries such as Malaysia, a country with an extremely low protection visa grant rate, while the IAA has primarily reviewed applications by asylum seekers from Sri Lanka, Iran and Afghanistan. Consequently, asylum seekers from traditional refugee source countries have their protection claims reviewed within a system that eschews traditional procedural safeguards while broader rights are afforded to cohorts accused of ‘gaming’ Australia’s refugee system. This is a counterintuitive schism stemming from strict visa criteria inhibiting the ability of people from refugee source countries to travel to Australia by plane, while those who can access visitor visas can easily apply for Protection upon landing in Australia.
In effect, the policy underlying the IAA expects asylum seekers to have arrived off the boat with a ready-made statutory declaration comprising their full protection claims and all relevant pieces of supporting evidence. This expectation is far removed from the complex realities of refugees’ lives. In contrast to the AAT, there is a conspicuous absence of fairness in the IAA’s mandate, with the IAA conducting reviews ‘on the papers’ in a manner that the legislation exhorts must be ‘efficient, quick, [and] free of bias’. The fast track framework does not afford applicants a right to a hearing and the IAA is prohibited from considering new evidence beyond the materials that are provided to it by the Secretary of the Department of Immigration unless there are exceptional circumstances. Further, while AAT Members are independent statutory officers who must be enrolled as a lawyer for at least five years or possess specialist skills, IAA Reviewers are regular public servants appointed for a fixed term without prescribed minimum qualifications. This has perpetuated concerns regarding the quality of decision making as well as criticisms that the IAA is ‘little more than a rubber stamp’ of the Department’s primary decision under review.
Recent statistics confirm asylum seekers are significantly more likely to have the refusal of their protection claims affirmed by the IAA than the AAT. The IAA’s reviews of protection claims made by asylum seekers from Afghanistan – a country in relation to which Australia’s Department of Foreign Affairs and Trade advises against travelling there ‘because of the extremely dangerous security situation and the very high threat of terrorist attack’ – showcases a stark variance in outcomes compared to the AAT. In 2018-19, 65% of Afghan asylum seekers were successful at the AAT. Contrastingly, as of 30 September 2019, only 17% of asylum seekers from Afghanistan assessed by the IAA had been found to engage Australia’s protection obligations. Afghan asylum seekers are not a statistical anomaly. During the same period, a mere 7% of asylum seekers from Sri Lanka were successful under the IAA, whereas nearly 30% of Sri Lankan asylum seekers had primary decisions set aside by the AAT.
The fast track system is particularly problematic in cases involving victims of sexual violence who have not disclosed their trauma at the outset of their protection visa applications or asylum seekers who have not provided all relevant information due to mental illness. Although the fast track framework may have been predicated on a short period of time elapsing between a decision being referred to the IAA and the IAA completing its review, this has been complicated by the deluge of cases where applicants have successfully challenged IAA decisions through judicial review proceedings that can take years to be resolved. Even when an erroneous IAA decision is set aside by a court after lengthy proceedings, the IAA operates from a starting point of not accepting updated information or interviewing the applicant.
The severely circumscribed rights of applicants to partake in the fast track review process is at odds with the basic requirements of a fair hearing entrenched in the common law. Given such, it is unsurprising some Australian judges determining judicial review applications have delivered thinly veiled lamentations regarding the fast track system. Judge Charlesworth observed the IAA ‘lacks features that might be considered desirable or optimal when compared with the form of merits review that has become familiar since the introduction of the AAT,’ while Judge Derrington stated the fast framework reduces an applicant’s right to a fair hearing ‘to the barest minimum to justify the process as one which adheres to the Rule of Law.’
The UNHCR recommended repealing the fast track assessment process as it ‘does not contain key procedural safeguards and denies certain categories of asylum-seekers the right to access any form of merits review.’ More recently, various Australian organisations enumerated the IAA’s flaws in responding to a review conducted by former Justice of the High Court of Australia, Ian Callinan AC. The Refugee Advice & Casework Service encapsulated the prevailing discontent in highlighting ‘the IAA is not directed toward fairness or justice in its decision-making, nor is it required by statute to act according to the substantial justice and merits of the case’. Despite receiving a plethora of detailed submissions criticising the fast track framework, Callinan’s report, tabled in Parliament at the end of July, glibly concluded:
Migration interest groups have criticised the Immigration Assessment Authority (“IAA”) and its processes. My inquiries however, have satisfied me that it is an effective and fair decision-maker in the cases with which it deals. It is an appropriate forum for expedition and fair disposition of cases involving similar and relatively simple facts. It is also an appropriate kind of forum to deal with “surges” of cases of these kinds.
These opaque conclusions – which do not reveal any path of reasoning or respond to the pointed critiques of the IAA and rather appear based on a confounding state of personal satisfaction – along with the Government’s push for the IAA’s expansion, suggests the IAA is now embedded as a permanent pillar of Australia’s approach to determining asylum applications. The implications for asylum seekers subjected to a system that is ill-equipped to fairly determine complicated protection claims could not be more severe. The continuing operation – let alone augmentation – of the IAA increases Australia’s risk of returning asylum seekers to countries where they face persecution and contravening its obligations under the Refugee Convention.
Australia is not the only country to implement a ‘fast track’ system for determining asylum applications. Canada’s policy seeks to facilitate the expedited acceptance of particular categories of refugee applications after a file review without a hearing. The IAA is a comparatively blunt instrument ostensibly geared towards rubber stamping the adverse decision under review. Appropriating elements of the Canadian model to promote accepting suitable categories of refugee claims on the papers while allowing applicants a proper review hearing in more complicated cases – for example where credibility issues arise – could redress some of Australia’s prevailing imbalance between efficacy and fairness. Doing so could ameliorate a legislative misadventure that evokes the UK’s dalliance with a fast track model that was snuffed out when the Court of Appeal ruled it was ‘structurally unfair and unjust’. This epitaph could also be applied to the IAA.
How to cite this blog post (Harvard style)
Honnery, C. (2019) The Immigration Assessment Authority and the Erosion of Fairness in Australia’s Refugee Framework. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/12/immigration (Accessed [date])