In his very helpful article on the refugee policy of Government and Opposition parties, Frank Brennan correctly pointed out the difference between the conditions of asylum seekers held on Christmas Island from those held on Nauru. He demonstrated that they would gain greatly should processing be abandoned on Nauru, even if the facilities on Christmas Island continued to be used.
He argued,
‘Though many refugee advocates are strong opponents of the new Christmas Island facility, I have continually conceded to government the place of such a facility in a border protection strategy aimed at isolating and detaining unvisaed boat arrivals until initial screening can occur, permitting immediate return of those with demonstrably unmeritorious asylum claims, and facilitating health and security checks of those asylum seekers whose claims will take some time to process’.
I am uneasy about the implications of this concession, and particularly about the conditions that will ‘permit immediate return of those with demonstrably unmeritorious asylum claims’. In the adjudication of claims, merit enters at two points. The process must distinguish meritorious from unmeritorious claims. It must also be seen to adjudicate them meritoriously. Otherwise their return to their places of origin will be arbitrary. I am not convinced that the processes used on Christmas Island provide assurance that claims will be judged meritoriously.
Certainly, the process should make it easier immediately to return asylum seekers that it would be to return asylum seekers who arrive with a valid visa. Their cases will be decided by an officer of the Department of Immigration. Rejected applicants will not be able to appeal further to an independent Tribunal on the merits of the case, or to the Federal Court about the process. In contrast to Nauru, however, they can appeal to the High Court.
My grounds for concern about this process are the responsibility given to officers of the Department and the difficulty that will face asylum seekers in finding legal help to make claims in such a complex jurisdiction.
I do not question the integrity and competence of Departmental Officers – although it helps increase confidence in integrity and competence if decisions are routinely open to review. The difficulty is that officers of the Department of Immigration face a conflict of interest between the responsibility to adjudicate particular cases within a very complex legal framework and the responsibility of the Department to implement the broader goals of Government policy.
When Government policy was to reduce the number of on-shore asylum seekers arriving in Australia and the Department was responsible for discouraging them, it was difficult to imagine that the scepticism of the Government would not reflect itself in scepticism shown by Departmental Officers. This judgment was confirmed by the fact that many initial judgments were overturned by the independent Refugee Review Tribunal. But the independence of the Tribunal confirmed confidence in the system as a whole.
When officers of the Department were entrusted with the sole adjudication of cases in Nauru, the quality of the initial judgments appears to have been low.
After the Cornelia Rau affair and the decline in the number of asylum seekers who arrive by boat, asylum seekers are less vilified. But the conflict of interest between the larger goals of Department policy and the responsibilities of its officers to adjudicate claims for asylum remains. It was evident in the case of the Burmese who were sent to Nauru. They faced adjudication of their claims by members of the Department. At the same time, other members of the Department was telling them that they would never be allowed to come to Australia. They were urged to accept repatriation without guarantees to Malaysia, a nation against which the asylum seekers had claimed protection on the grounds of persecution. The Department agreed to adjudicate their cases under provisions of Australian law only after a High Court injunction was sought.
Eventually most of the Burmese and Sri Lankan asylum seekers on Nauru, were found to be refugees. But the fairness of the process was less than transparent.
On Christmas Island asylum seekers will certainly be able to appeal to the High Court against adverse decisions. But the High Court is a clumsy and blunt instrument for ordinary review of immigration claims. It also magnifies the effects of distance and of isolation on asylum seekers.
Both in preparing their original claims and in substantiating an subsequent appeal to the High Court, asylum seekers need legal advice to negotiate such a complex jurisdiction. When they are held so far from competent sources of advice, they will need either good fortune in making their claim or extraordinary generosity on the part of committed lawyers willing to travel there at their own expense.
Compared to Nauru, Christmas Island might seem to be surrounded by calm seas. But it is exposed by distance, and if a storm of government hostility to asylum seekers blows again, the processes of determining claims there appear to leave asylum seekers dangerously exposed.