The new independent reviewer, retired judge Margaret Stone, was appointed yesterday by Attorney-General Nicola Roxon. Stone's role will be to review the visa applications of refugees who are judged to be security risks (given adverse assessments) by ASIO.
Refugees given such an assessment are caught in a legal trap: unable to return home, but unable to be settled in Australia, they are detained indefinitely, a process found to be legal by the High Court in the 2004 case Al-Kateb v Godwin and more recently in last week's M47 v the Director-General of Security & Others.
The independent reviewer was appointed to ensure "greater openness and accountability in the security assessment process," Roxon said in a statement yesterday.
But under questioning last night in Senate Estimates from Greens Senator Sarah Hanson-Young, ASIO chief David Irvine admitted that even though Stone would be allowed full access to ASIO's materials relating to adverse assessments, her decisions would not be binding. ASIO will remain the "end of the line" as far as security assessments are concerned.
Stone's terms of reference also cast doubt on how independent she will be from ASIO's influence. If she disagrees with an ASA issued by ASIO, Stone must "provide the Director-General with a reasonable opportunity to comment, before finalising the opinion." She is also obliged to:
"...take into account ASIO's role and statutory functions including ASIO's mission to identify and investigate threats to security and provide advice to protect Australia, its people and its interests and that, therefore, ASIO's security assessments are anticipatory in nature, enabling preventive action to be taken."
"But," Irvine said during Estimates, "I don't want to give any sort of answer that would imply that the Director General or indeed the government would not take seriously the recommendation of the reviewer."
Stone's capacity to communicate her findings either with the public or a refugee seeking review is also subject to approval by ASIO, in order to protect the agency's "intelligence capacity".
Currently refugees subject to adverse assessments aren't given access to the evidence against them or decisions made by the department — they are only informed if a visa is declined. The restriction of such information is justified either on security grounds or is precluded from being tabled as evidence in court under a "public interest immunity". Such exclusions hamper an asylum seeker's ability to seek judicial review of an ASIO decision.
Under the new review system, once a review is requested, ASIO will now provide an "unclassified written summary of reasons" to the asylum seeker, as long as the summary doesn't contain information that might "prejudice the interests of security".
The amount of detail to be included in such a summary is unknown. But if the process is to be truly transparent, certain conditions should be present. As Ben Saul wrote in NM:
"A person should always be given adequate notice of the allegations, minimum disclosure of incriminating evidence, and a statement of reasons for the decision. This means that procedural fairness should never be reduced to 'nothingness' — a sketch or outline of the allegations and reasons must always be provided. A person could be informed, for instance, that they are considered a security risk because: 'You joined the LTTE and killed civilians in village X on 1 April 2009'. Such disclosure would not usually prejudice security interests."
Refugee activist Ian Rintoul told New Matilda that the new review process is barely an improvement on the existing scheme.
"The review process is toothless. The department itself has been in a position itself to do those kinds of referrals — we don't know if they have been or not — but ASIO has certainly told us that if if the department at any time wanted ASIO to review any of the people, that's all they had to do, to request that review be done."
"It's far from transparent, and I think while it's better than nothing, it's not much better than nothing," he said.
Roxon has indicated the appointment is not the government's response to the decision in M47 v the Director-General of Security & Others, which found ASIO's process to be procedurally fair.
"Despite this confirmation from the court, the government believes ASIO and the community will benefit from this new review process adding an additional level of independent scrutiny to ASIO decision making," Roxon said.
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