Discrepancies in the number of visas granted, depending on an asylum seeker's country of origin, and a high rate of successful appeals at review, have led asylum seeker and refugee experts to question the political neutrality of the Department of Immigration and Citizenship's processing regime.
Last year, the Refugee Review Tribunal (RRT) overturned 80 per cent of decisions made at the Department of Immigration and Citizenship (DIAC) to grant protection visas to applicants from Iran, 61 per cent in the case of Egypt, 50 per cent for Pakistan and 41 per cent for applicants from Lebanon.
These figures represent non-irregular maritime arrivals (non-IMAs — ie. asylum seekers who are not “boat people”) alone. For those arriving by boat (IMAs), percentages of overturn are even higher, with 90 per cent of rejected applications from Afghanistan overturned at review, 79 per cent for Iran, 75 per cent for Iraq, 72 per cent for Pakistan and 82 per cent for Sri Lanka.
In fact, the financial cost of the substantial rate of overturns is becoming a burden. According to the latest budget, the Federal Government will commission a comprehensive review into Australia’s refugee determination system. The budget paper admits that in Australia, “a significant number of negative decisions on asylum claims at primary assessment are overturned at review”.
Furthermore, because of the large number of boat arrivals appealing for judicial review when their primary assessment is rejected, the government is allocating $16.6 million to DIAC over two years for associated legal expenses.
Analysis of claims made by non-IMAs over the last decade shows that discrimination occurs not only when asylum seekers arrive in Australia “illegally” by boat. The overall rate of successful appeals to the review tribunal for non-IMA’s has fluctuated over the last decade, correlating with the government at the time. Some countries are consistently more likely to have higher overturn rates than others. These countries include China, Egypt, Lebanon, Sri Lanka, Iran, Iraq and Afghanistan.
Figures for Chinese applicants are particularly startling. DIAC’s latest quarterly statistics report shows that considerably more visas for Chinese applicants are issued at the final stage of the process than are at the primary stage. In the March 2012 quarter, for example, the number of visas issued to Chinese applicants at the final stage was almost 10 times the amount issued at the primary stage
This inconsistency in decision-making has raised questions among refugee advocates and academics about the integrity of the process.
A former member of the Refugee Review Tribunal under John Howard, Bruce Haigh, believes that officers at DIAC, who first decide whether a protection visa will be issued, are subject to political pressure.
“We thought a lot of the department’s decisions were sloppy and lacked rigour,” he tells New Matilda. “But they were under direct pressure to reject.”
Another former RRT member and author of comprehensive legal text Refugee Law in Australia, Roz Germov, agrees that delegates at the department are culturally encouraged against granting protection visas. “They seem to me to approach a person with a view to not believing them,” she tells New Matilda.
The Asylum Seeker Resource Centre’s CEO Kon Karapanagiotidis says that the significant discrepancy between decision-making at different stages of the process is a concern.
“You should not see a schism when both are assessing the same law, the same person and the same country. And that reflects upon the arbitrariness, the improvisation of it, the lack of consistency, the lack of consistent standards and the lack behind a consistent idea of assessing cases,” he tells New Matilda.
Generally speaking, the primary decision is set aside if the RRT member is satisfied that the applicant for review is a person to whom Australia owes protection. The “set aside” or overturned decision is different to the primary one and usually results in the applicant being granted a protection visa.
To be eligible for a protection visa in Australia, applicants need to have the characteristics of a refugee as laid out in the United Nations Refugee Convention that Australia is signatory to. The definition, that has been incorporated into domestic legislation, states that in order to be a refugee, applicants must have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” if they return to their home country.
A spokesperson for DIAC told New Matilda, “the overturn of negative primary decisions at review may be explained by a range of factors, including: greater focus by the claimant on key factors in the original decision, and the opportunity to rebut, clarify or amend their claims; more detailed information on protection claims or new claims submitted at the review stage; changing circumstances in countries of origin between the time of the original decision, and the hand down of merits review.”
While new information may come to light at review, this is not always the case and experts have said that it is rare for ongoing circumstances in the applicant’s country to change between the original and review decision.
Out of the 10 cases from Afghanistan made publicly available by the RRT between the 2011 and 2012 financial year, nine were overturned at review, three of which had presented no additional information at the second stage.
In the case of one Hazara man from Afghanistan, the RRT member overturned the primary decision specifically stating that the country information used by the delegate at DIAC was “out of date” and that the delegate relied on a report that “superseded UNHCR Guidelines and a United States Department of State report from 2008 addressing the situation in Afghanistan in 2007.”
Karapanagiotidis believes that DIAC delegates often cherrypick country information.
“At the RRT you’re going to see more diversified decision-making because there’s more independence, there’s a higher skill base, there’s a great detail of country information and there’s a greater understanding also of the concepts of what constitutes persecution,” he says.
But the spokesperson for DIAC said that overturns occur “as a result of different subjective assessments by reviewers: on the credibility of a person’s claims; whether internal relocation in the applicant’s home country is practical and reasonable and; on different interpretations of country information by reviewers.”
The rate of overturn is calculated by the number of cases set aside at review, against the number of cases decided. Because the RRT considers applications that have been rejected at DIAC, the number of cases it has on hand is essentially much lower than the number that DIAC deals with.
DIAC, as the initial decision-maker, should consequently be approving the vast bulk of refugee claims, with the RRT correcting mistakes. But in the case of certain countries such as China, Egypt and Lebanon, the numbers of those accepted as refugees at review sometimes exceeds the number accepted by DIAC. Likewise, for applicants from Iran, Iraq and Burma (as well as China, Egypt and Lebanon) in the 2011-2012 financial year, the number accepted at review was greater than by DIAC.
Part two of Sasha Petrova's report will be published tomorrow. This story was originally written as an assignment in the Masters program in the School of Journalism at Monash University.
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