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Justice is slow in the 'fast' asylum regime

  • 15 July 2019


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 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