Justice is slow in the 'fast' asylum regime

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The defeat of Bill Shorten will impact particularly harshly on thousands of asylum seekers who arrived by sea during the Gillard and Second Rudd governments. These people, who number some 30,000, are subject to the 'fast track assessment process', a collection of policies introduced by the Abbott government in late 2014.

Fast cars on motorway (photo by yevtony via Getty)Fast track has left thousands of genuine refugees in limbo and made lawful what would otherwise be considered gross administrative misfeasance. Fast track applicants were not sent to Nauru or Manus and they live in the Australian community, as do others who seek our protection and arrived by plane. Despite this, they are singled out with a particularly harsh standard of administrative justice.

At the centre of the fast track regime is the Immigration Assessment Authority, the body that reviews departmental refusals of fast track applications. Unlike real tribunals, the IAA is not bound by the rules of procedural fairness, a legal doctrine as ancient as Plato and refined by centuries of judge made law.

Procedural fairness, also known as natural justice, simply provides that a person has a right to be heard before an adverse decision is made affecting their rights. Assessors in the IAA determine cases 'on the papers' and asylum seekers have no opportunity to meet and address the person deciding their claim. It is in this respect that the purported aim of the fast track process, efficiency, has been found to be most illusory.

In a series of cases the federal courts have found that the faux review provided by the IAA assessors has led directly to the failure to consider cases and issues properly. These constant failures are unsurprising; indeed, they are inevitable in a system that attempts to make a virtue of poor administrative process. Procedural fairness may protect the citizen, but its greatest impact is on the quality of decision making, regardless of outcome.

Some of these federal judgments have also seen a strict interpretation of the fast track legislation to ensure at least the consideration of whether a fair process should occur. One recent example concerned an asylum seeker from Tripoli, Lebanon, who claimed to be at risk from the militant group Hezbollah. The issue in the case was whether he was safe to return home to the Lebanese city of Tripoli.

The public servant who initially considered the case found him not to be credible and rejected his claims for asylum. The IAA however took a different view. The assessor accepted the man was indeed at risk in Tripoli, but decided he was safe to return to the capital Beirut. This occurred without the man ever having a chance to comment on whether he could relocate to Beirut, let alone whether he would be safe there.

 

"The fast track regime has no impact on people smuggling and is of dubious effect in achieving its stated aim, administrative efficiency."

 

On appeal the Full Federal Court was bound by the legislation and not able to strike down the decision on the basis of the obvious lack of procedural fairness. Rather, the court interpreted the IAA's powers to receive fresh evidence and held that it was unreasonable not to at least consider hearing from him about how he might fare if returned to Beirut. This being the question upon which he had never had a chance to be heard.

This strict approach however is no substitute for true procedural fairness, it merely requiring the IAA to consider being procedurally fair, not to actually be so. Unsurprisingly, asylum seekers are being refused protection at a higher rate in the IAA than in the other tribunal which properly reviews asylum seeker refusals.

Perhaps the even harsher aspect of the regime is that if fast track applicants are found to be refugees they only have access to short term protections visas. Rather than rebuilding their lives in Australia, if a change of circumstances occurs they can be removed to often unstable home countries.

The fast track regime has no impact on people smuggling and is of dubious effect in achieving its stated aim, administrative efficiency. IAA annual reports suggest only 6085 persons have been processed, some five years after its creation. Fast track imposes a system of administrative injustice that Australians would not accept if it applied to them. Yet history tells us that the standard we accept for a minority becomes normalised.

While the plight of asylum seekers on Nauru and Manus dominates the headlines, the dangerous parody of administrative justice that fast track applicants are subject to has largely escaped scrutiny. It is high time Australians took an interest in these second-class asylum seekers and demanded the repeal of policies that are a policy triple whammy; cruel, unfair and pointless.

 

 

Stephen LawrenceStephen Lawrence is a barrister in NSW specialising in public law. He has represented many fast track applicants in the federal courts.

Main image by yevtony via Getty

Topic tags: Stephen Lawrence, refugees, asylum seekers, Bill Shorten, Peter Dutton, Julia Gillard

 

 

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Existing comments

On the issue of justice for the asylum seekers I wonder if they have the right to a coronial Inquest? In recent days an asylum seeker died in a Melbourne detention centre and it seems like there were no questions to be asked or answered in this case. It's time for a Royal Commission into the deaths of asylum seekers in detention and custody and if the Federal Government can't be pressured into one. then maybe the State Government could be pressured into a Royal Commission or if it's not already the case, an Inquest into their deaths or are they deprived this because they aren't citizens? The Federal Government were pressured into a Royal Commission into the Institutional sexual abuse, after the Victorian State Government had an Inquiry into Child Sexual Abuse, Could this happen in relation to asylum seekers? I am sick of their being no process for holding the Federal Government to account for their harsh and cruel policies towards asylum seekers. If we had a President or a Council of Citizens who could be like whistleblowers and who could defend universal human rights, and who could bring the Federal Government to account, we would all be better off, does this mean a Bill of Rights? However even in the U.S there seems to be no account for the deaths and rights of asylum seekers. Unfortunately even with our Legal System and current processes, human rights can be undermined leading to deaths in detention for asylum seekers and other breaches of justice.
Rosanne | 15 July 2019


Why the suggestion at the top of the article that Bill Shorten would have fixed this injustice? On asylum-seekers Shorten, Marles and Albanese have supported the Government's policies. See http://members.iinet.net.au/~akilcull@homemail.com.au/Detention.html?fbclid=IwAR2Yo9ZWRNKageBbQeGVtBIRodfbNbG_GY84BPY6Kl5gaL8n7tdL-hwJLsA
john kilcullen | 17 July 2019


Stephen, A thoughtful and very disturbing commentary. Sadly future generations will see our times in a very different light. We now realise the impact of the "stolen generations" on our indigenous people, even though at the time it was thought to be an acceptable policy. I wonder what impact this inhumane policy will have in the future. I agree with John.Sadly both major political parties remain "instep" on this terrible policy.
Gavin OBrien | 17 July 2019


My friend and her husband are asylum seekers. She has been waiting over five years for the “fast track” processing of their applications. As time goes by, their spirits are sinking, yet they live in hope. They are in dire poverty yet they continue to love Australia and hope they can stay here. It is heartbreaking to see their lives gradually deteriorating, their meagre income insufficient even to meet even their rent. Slow torture, I would call it. I thought Australia was a country where fairness was valued. I don’t think this is the case any more. Such callousness towards people who risked everything to come here, including their lives.
Margaret | 17 July 2019


Thankyou the plight of the legacy caseload is not well known. A further cruelty is that once an appeal to a Court is made the person or family are denied any assistance as well as work rights so are rendered destitute-homeless and hungry literally. Groups like the Brigidine Asylum Seeker Project are struggling to house and feed people including women and children from this cohort. Home Affairs aim is to starve them out. This is something few Australians know about.
Pamela Curr | 17 July 2019


Hi John Kilcullen. Federal Labor committed to abolishing the fast track process prior to the last election. One of the significant differences between the major parties on asylum matters. Cheers, Stephen
Stephen Lawrence | 19 July 2019


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