It’s broke and it needs fixing

The Case for Reforming Administration of Refugees and Asylum Seekers Programs

Draft discussion paper prepared by Human Rights Council of Australia

Introduction:

Australian refugee policy suffers a lack of principle in its basis and formulation. Present policy is reactive, piecemeal and ad hoc without any clear foundation in law or ethics, grounded in public fear and government manipulation[1].

As policy alternatives are examined for processing of asylum-seekers and protection of refugees it is timely to also review the functions of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) and the responsibilities and discretionary powers of the Minister. This paper intends to contribute to such a review process and a discussion about what changes are desirable and possible.

Over recent years DIMIA has developed an ever-growing range of portfolios and programs. The current DIMIA Website lists Population Change, Border Protection, Migration Program, Humanitarian Program, Multicultural Affairs and Indigenous Affairs as principal areas of responsibility.

The multiple responsibilities of DIMIA have helped to conflate the issues of population, migration, resettlement, border protection, mandatory detention, refugees and asylum seekers. At the same time it has helped to sideline and marginalise Indigenous affairs and reconciliation.

DIMIA is now inextricably associated with refugee policies and practices that have divided Australia and attracted unparalleled community and judicial criticism and negative international publicity and comment.

The adoption and implementation of alternative policies for processing asylum seekers and protecting refugees will require a reorganisation of DIMIA and a reallocation of its functions. Addressing these functional issues offers an opportunity to promote alternative policy within a broader context of promoting a vision for good, accountable and efficient government.

Such proposals may also help shift the grounds of public debate away from the loaded language of mandatory detention or mandatory processing of asylum seekers. Proposing an extensive and overdue overhaul of current departmental responsibilities offers an opportunity to move debate to issues of government administration, accountability and efficiency – all areas on which the administration of current policy is vulnerable to public criticism.

By focussing on government administration of different functions it will be easier to separate public debate on the different issues of border protection, processing of asylum claims, re-settlement of refugees, migration policy, multiculturalism, national and regional population policy.

Unraveling the Mess

DIMIA has grown in an ad-hoc way over the years. The Human Rights Council focuses on the need to reform administration of the processing of asylum seekers and the care and resettlement of refugees. However, any review and reallocation of DIMIA’s current responsibilities should build on existing proposals for change in other areas of DIMIA’s current responsibilities. Since the 2001 election, the need to review DIMIA responsibilities has taken on added importance with Indigenous Affairs and Reconciliation being absorbed into the Ministry. This subordination of Indigenous affairs had little rationale at the time and was opposed by Labor, Democrats and the Greens.

Indigenous Issues: Indigenous Affairs and Reconciliation merit a separate Ministry, rather than being an add-on to immigration or multicultural affairs. Indigenous interests should never be reduced to the level of just one of Australia's multicultural migrant communities. Indigenous Australians have a unique position in Australia and the continuing marginalisation and economic and social exclusion of Aboriginal Australians and Torres Strait Islanders requires special, separate and priority programs and policy.

Population policy: Labor and others, including sections of the business community, have called for an overhaul of population policy and for increased immigration to help counteract falling birth rates and to assist economic growth. Some of this discussion on population has been linked to the need for better policies on regional economic growth and population distribution, taking into account environmental concerns. These discussions have made it clear that population policy today is about much more than migration policy and much more than immigration processing – it encompasses distribution of population within Australia, the economic stress of many rural areas and declining birth rates. Population policy and immigration-processing functions have become increasingly separate issues and would best be administered through separate departments. It should be made clear however that refugee policy is not a subset of population policy and should not be subject to population policy. Refugee flows have to be considered when population policy is developed but governments have legal obligations to refugees. Dealing with refugees in the context of population policy risks ignoring or subordinating these legal obligations to discretionary decisions about immigration.

Multicultural Affairs: Immigration programs and multicultural policy were more clearly linked in the past as migration policy and the immigration program rapidly transformed Australia into a multicultural society. People were welcomed to Australia to help build our society. Diversity in skills and backgrounds were seen as strengths. Today Australia’s immigration program is more focused on selective skills transfer than community building[2]. The emphasis on keeping people out of Australia has focused disproportionately on people from the Middle-East and Asia and increased barriers for emerging Australian communities. Increasingly the gatekeeper (or border protection) function of DIMIA is in tension with its other imperatives to promote multiculturalism, to emphasise the value of diversity and to build better community relations.

Resettlement: The immigration gate-keeping function is also at odds with the function of providing care and resettlement services. Today it makes more sense to integrate care and resettlement services into other Federal government departments (in association with state government departments) to aid swifter integration of people into the regular support services within the community, such as Family and Community Services and the Department of Education, Science and Training. While refugees and asylum seekers often have particular and distinct resettlement needs, such as trauma counseling, many of the services they require in order to adapt to their new circumstances will be the same as migrants from the same region. Those refugees currently on temporary protection visas (TPVs) are effectively denied most resettlement services and are treated as second-class refugees. Many of those on bridging visas are in an even worse situation.

An Agenda for Government

Prior to the 2001 election Labor proposed a number of changes to the organization of government, including the creation of a new Ministry of Home Affairs and the creation of a new Coast Guard service. The latter suggestion was designed to free the Navy from their current deployment intercepting unarmed, overloaded and often un-seaworthy fishing vessels carrying asylum seekers.

Bringing Customs and Immigration functions under a single Ministerial portfolio would enable a clearer departmental focus on managing border protection and processing arrangements at points of entry. The immigration function in this arrangement would be on processing of non-refugee visas and policing points of entry rather than migration policy as a whole. Such an arrangement could enable more cohesive responses to people trafficking, the smuggling of goods and people and other border integrity issues.

In such an arrangement then a new Department of Community and Multicultural Affairs (CAMA) could become more clearly focused on the needs of all Australians. It would include responsibility for developing population and migration policy as well as administering and promoting multiculturalism and the humanitarian resettlement program (community services and relations).

Responding to Refugees and Claims for Asylum

Refugee policy, however, derives from obligations under international law which have been incorporated into Australian domestic law… Accommodating the refugee determination process within the immigration portfolio blurs this distinction. Refugee policy comes to be perceived as a sub-set of immigration policy. The two have distinct legal bases, however, with divergent consequences[3]…

There are legal, political and policy reasons for separating Australia’s handling of refugees and asylum seekers from its handling of migrants and discretionary decisions on immigration.

Politically there is a need to separate the issue of border protection from the harsh treatment of individuals in Australia. The detention of asylum-seekers in remote camps in punitive conditions reinforces popular perceptions that asylum-seekers arriving by boat are simply immigration cheats. There is no evidence to support the claim that the detention camp regime has acted as a deterrent to asylum seekers[4]. Remote detention camps cannot be justified even on these grounds, despite their expense and the suffering they have caused. The Naval blockade was introduced because of the failure of the camps to deter.

The convergence of border control on the one hand and protection obligations on the other gives rise to policies… (is) disproportionately felt by asylum seekers who arrive by boat and claim refugee status on-shore[5].

The current Minister has consistently used phrases such as queue jumpers and seeking migration outcomes to build and reinforce public hostility to the minority of asylum seekers who arrive in Australia by boat. The current punitive system is depicted as a crackdown on cheats in the same way as major changes to the social security system have been successfully misrepresented as a crackdown on welfare cheats and dole bludgers. Good refugee policy, like social security policy, should not be determined by focusing on the small minority who might abuse the system at the expense of the vast majority who require protection and assistance.

Refugees need protection

In its 1998 Report Those who've come across the seas: Detention of unauthorised arrivals the Human Rights and Equal Opportunity Commission (HREOC) recommended[6] that processing of asylum seekers and refugee claims belonged more appropriately in the Attorney-General’s Department as these claims flow from Australia’s obligations to domestic and international law rather than discretionary decisions about the size and composition of the migration program.

There is a fundamental difference between immigration decisions and determination of refugee status. Immigration is properly a matter of government policy. Subject to human rights considerations, including the principle of non-discrimination, each state is entitled to decide its own approach to immigration…

Determination of refugee status is however a matter of law, not policy. Whether or not someone is a refugee depends on whether the person meets the definition of refugee set out in the Refugee Convention, which is incorporated in Australian law. This is not a matter on which the Minister should be able to issue policy directions…

Deciding a refugee application is not properly an immigration matter at all. Refugee determinations should therefore be transferred to the Attorney-General’s Department which is better placed to manage a legal process, which should not be constrained by immigration policy[7].

While international comparisons can be misleading because of Australia’s unique island situation and its commitment to a significant migrant intake program, a Canadian report may be helpful in considering how best to separate refugee protection functions from immigration programs and processing. The report Not Just Numbers: a Canadian Framework for Future

Immigration prepared by the Legislative Review Advisory Committee for the Canadian Minister for Citizenship and Immigration apparently recommends a radical revision of the

legislative framework, the creation of a separate Protection Act that would cover both resettlement and onshore determination and the creation of a specialist protection agency[8].

Deterrence Distorting the Department

It has become evident to those regularly dealing with DIMIA that the Department’s active promotion of the current punitive approach to those seeking asylum has made DIMIA part of the problem of finding a better way of handling refugees. It has long been notable that each new Minister for Immigration quickly becomes supportive of a “hardline” approach to asylum-seekers whatever their previous political reputation. The current Minister is a case in point, albeit an extreme case.

Processing of asylum-seekers and of refugee issues is currently the preserve of DIMIA from the beginning of the process until the end[9] unless the Courts intervene, as they increasingly are. The lack of interaction with other Government Departments in the refugee determination and processing system has increased DIMIA’s isolation and reduced scrutiny and input from other portfolio areas.

It is also suggested that the political emphasis and priority given to the divisive issues of the mandatory detention regime and border protection have distorted DIMIA’s organizational culture and sense of mission. DIMIA’s own website is now notable for the space it devotes to efforts to rebut community and international criticism of its treatment of refugees.

Passion and polarisation in the community over the treatment of asylum seekers and refugees have tended to make DIMIA officials more defensive. According to anecdotal evidence public servants uncomfortable with implementing the policy have tended to move away from the departmental areas responsible for detention, leaving mainly those ideologically committed and personally invested in the policy approach.

DIMIA conduct in relation to those in its care or to whom it has a duty has come in for increasingly strong criticism from various judicial quarters including from two separate Coronial Inquiries into the deaths of asylum seekers[10].

The 1998 HREOC Report recommended moving responsibility for administration of immigration detention facilities to the federal justice portfolio within the Attorney General’s Department.

Abusing Discretion and Lacking Accountability

The wide powers of discretion open to the Minister and lack of public accountability are open to abuse and perceptions of rorting and favouritism. At the very least the extent of these discretionary powers over vulnerable individuals is inimical to informed and healthy dissent.

Refugee advocates are conscious that they may need to call privately for the Minister’s personal intervention in individual cases and are inevitably conscious that public criticism from them may have adverse impacts on individuals they are seeking to assist – there is an understandable reluctance to bite the hand that holds the keys to freedom and safety.

This problem of accountability is exacerbated by the shortcomings and inadequacies of the current Refugee Review Tribunal. Apart from the Minister’s existing and wide powers of discretion as a last avenue of appeal and his power as the guardian of the children he detains, it is also suggested that the Minister exerts an unhealthy influence over what was meant to be an independent review mechanism.

This influence rests partly in the combination of his powers of appointment to the Tribunal, the short tenure of these appointments, and the fact that single-member panels mean it is possible for the Minister to more easily identify or pressure individuals whose decisions go consistently against the department.

The Refugee Council of Australia has pointed out that the Administrative Review Council addressed these issues specifically in relation to Commonwealth merits review tribunals and noted:

Independence from the agency whose decisions are being reviewed is necessary to ensure credibility in the eyes of people who seek to have agency decisions reviewed. Independence basically means that decision makers involved in external review are not subjected to undue influence (and that there is no perception of such influence) in reaching their decisions or in making management choices.

In addition the failure of key selection criteria for members to include legal or human rights expertise raises doubts about the emphasis these issues are to be given in making life and death decisions for asylum-seekers.

The significance of the Refugee Review Tribunal (RRT) has grown with government efforts to exclude independent judicial scrutiny. The recent High Court decision relating to the RRT has highlighted only some of the problems concerning the current processing system. Even before the High Court decision there was substantial criticism of the RRT[11], its decisions and narrow focus on procedural issues, at efforts to undermine its independence and the Minister’s willingness to interfere in its proceedings.

Whatever the reason, it is true to say that there is no longer the view that an appeal to the RRT will automatically guarantee an applicant a fair, thorough and independent examination of the claims presented. Further, this lack of confidence is clearly one of the reasons behind the sizeable increase in rate of appeal from the RRT to the Federal Court in recent years[12].

Detaining Children or Guarding their Interests?

Currently the Immigration Minister is the official guardian of all unaccompanied minors awaiting visa decisions or in detention. The guardianship responsibility is often delegated – sometimes down to the level of those administering the detention camps. This situation has been roundly condemned by a number of organizations including the Refugee Council of Australia and Children out of Detention (Chilout).

There is no way that the Minister can give due regard to what are inherently contradictory functions. Nor is it possible that a Minister of the Crown can take an active role in monitoring the welfare of every child under his guardianship.

This system leads to many legally questionable practices, such as a DIMIA officer signing the minor’s application for refugee status, or worse still, the minor signing him/herself.[13] It also leaves minors exposed to neglect and abuse in the detention centres as regular staff rotation means that there cannot be continuity of care.

As things stand at present, there is no delegation of guardianship to a person who has the best interests of the child as his/her sole and unambiguous responsibility and who will have responsibility for the child for as long as he/she remains in Australia or until the child reaches majority[14].

It would be more appropriate if the Guardianship function resided elsewhere and not with the Minister or Department that is responsible for determining status of the asylum claim (or any other visa matter). If the Attorney General’s Department is to administer refugee applications it is suggested that the Guardianship function should lie with the Department of Family and Community Services. This responsibility should in no way override any of the existing State Government child protection regimes, but should include a provision to act as legal guardian to assist in the refugee application process.[15]

Tough, but Fair - Principled and Pragmatic

Table 1 provides a notional breakdown of how DIMIA’s current responsibilities and functions might be redistributed.

Department	Functions
Indigenous Affairs and Reconciliation (new)	Aboriginal and Torres Strait Islander issues and Reconciliation process
Attorney General	Processing Refugee and Asylum Seeker Applications
Border Control, Immigration and Customs[16] (new)	Passport control, ports, processing and issuing of non-refugee visas (border control)
Department of Community and Multicultural Affairs (new)	Population and Migration policy, Multicultural affairs and humanitarian resettlement services
Family and Community Services	Some refugee and migrant resettlement services
Department of Education, Training and Science	Some refugee and migrant resettlement services

Table 2 below briefly outlines how administrative functions of refugee and asylum seeker programs could be overhauled. It builds on the work done by the Human Rights Council and others advocating a tough but fair refugee policy based on clear principles.

Table 2. A better way to administer a better refugee policy

The table below sets out how some of the functions in relation to asylum seekers and refugees might change. The functions are based on the principled alternative refugee policy prepared by the Human Rights Council of Australia.

Function	Change	The case for change	The case against change
Identity and security checking, health screening of unauthorized arrivals[17]	Immigration and health department officials Officials to be given training in human rights and refugee law and government obligations	No substantive change
Appointment of Guardian for unaccompanied Minors	Guardianship to be moved from Immigration Minister to delegated authority under Minister for Family and Community Services/Youth and Children’s Affairs. Individual[18] to be appointed to each child to act as advocate in all non-legal issues. New Federal Children’s Commissioner to be allocated monitoring role.	It is inappropriate for Minister for Immigration to be children’s guardian and jailer[19]. It would ensure greater external scrutiny of the treatment of the child through refugee application process. More professional expertise in ensuring that the primary guiding principle of best interest’s of child is applied.	Until the child’s visa status is determined the Immigration Minister should retain responsibility for all issues to do with the child’s welfare.
Administration of Asylum-Seeker Detention Facilities	Move to Federal Justice Department, within Attorney General’s. States to be involved in supervising operation of facilities	Courts, police, prisons and all other detention facilities fall within scope of Commonwealth and State Justice portfolios. Detention is not the core business of immigration, population or multicultural department. DIMIA’s administration has been plagued by problems, crisis and controversy.	DIMIA has been running the Centres for long time. All detainees are in for non-criminal immigration related matters.
On-shore assessment of asylum-seeker claims[20]	An independent tribunal should make first determination of asylum claims within 30 days. The tribunal should have three members, including at lease one with human rights/legal expertise. Move responsibility for tribunal from DIMIA to Attorney-General’s Department.	Refugee and asylum seekers are not migrants. Australia has clearly defined legal responsibilities to refugees and asylum seekers, while issues of migration are discretionary.	It is not clear who is a refugee until after processing of claims. DIMIA has delegated authority under the Minister to assess all visa claims) DIMIA has expertise.

Issue bridging visas with appropriate restrictions on movement to those not a health or security risk[21] within 30 days.	Independent Tribunal should consider all application and make determination. AGs to make government case for or against visa to Tribunal	Puts humanitarian issues first.
Ensure that each asylum seeker in the community is adequately supported, assisted and fulfills any reporting requirements	Move from DIMIA oversight to case management officers in FACS, DETS and State Government Dep’ts	Puts emphasis on support in the community and issues of community integration.	Refugees demand many of the same services as migrants and some asylum seekers are illegal migrants so it makes sense to deal with them in the same portfolio area)
Ensure that each asylum seeker in detention receives individual assessment on need to continue detention[22].	Move from DIMIA to case management officers in Attorney General’s department. Decision to be made by Tribunal. Cases of children to be assessed by panel including child health specialists and best interest of child acknowledged as primary consideration[23].
Ensure prompt access to independent review of any independent orders for continued detention/First review of rejected asylum claims	Tribunal with appellate panel for review applications dealing with detention issues and substantive issues of refugee recognition.. Appellate panel dealing with detention issues should include medical expertise. Tribunal appointments to be made either by AG or independent appointments commission. Access to judicial review	The RRT is not functioning adequately, has limited scope & decisions have become highly contested. It is not sufficiently independent as the Minister has the power to hire and fire, tenure of members is short and single-member panels are open to influence. Increasing numbers of RRT decisions are being successfully challenged in the courts. Gov’t had planned to abolish anyway in reform of administrative tribunals.	Government was planning changes anyway to RRT and other administrative decisions tribunals. Reduces power and discretion of the Minister. Labor established RRT.

Ministerial discretion on refugee issues	Relieve Minister from responsibility for, and discretion on, adjudicating on individual refugee issues. Delegate discretionary power to refugee determination tribunal.	Has been a huge increase in the number of discretionary decisions as the rest of the system has tightened. (Discretionary power gives Minister power of patronage that works to silence critics and is being used inappropriately.)	How would the independent body be constituted? How would it be different from the Refugee Review Tribunal?
Establish Independent Inspector of Detention Facilities	Scrutinise operation of refugee and asylum-seeker processing and detention facilities with powers to receive and investigate complaints and visit detention facilities at will and without notice.	Function not currently performed. In line with UN Convention Against Torture and international guidelines on the prevention of torture. Mirrors state practice on prisons.
Establish refugee and asylum seeker issues advisory committee comprising community representatives.	To increase community understanding and awareness of refugee issues and recommend changes, provide level of independent scrutiny of system. Possibly located within Prime Minister and Cabinet.	Currently a lack of knowledge about refugees in the community and possibly a sense of exclusion from what is seen as an ethnic issue.

[1] Human Rights Council Of Australia, Tough But Fair – A Better Policy For The Processing And Treatment Of Asylum Seekers, July 2002

[2] The current government has shrunk the family reunion program imposing enormous strains and hardships on many families. It has increased the revenue raised from this program in non-refundable deposits from applicants and slowed down the process. It has placed a greater emphasis on English language ability.

[3] 1998 HREOC Report Those who've come across the seas: Detention of unauthorised arrivals, p 233

[4] The intervention of the Navy, the deaths of many at sea and the fall of the Taliban and more effective interdiction in third countries appear to have succeeded in halting the flow of asylum-seekers.

[5] 1998 HREOC Report Those who've come across the seas: Detention of unauthorised arrivals, p 233

[6] Recommendation 16.1 http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf

[7] 1998 HREOC Report Those who've come across the seas: Detention of unauthorised arrivals, p 234

[8] Source is the 1999 Refugee Council of Australia Intake Submission

[9] While MOU’s have been signed with some State Governments over access and provision of services, these have been limited.

[10] Roderick Campbell, Canberra Times 20 August, 2002 Immigration officials were taken to task yesterday in the ACT Coroners court over their handling of the case of Shahraz Kiane. See also Inquest into death of Mr Mohammed Saleh, an asylum seeker who died while under immigration detention in the Hollywood Private Hospital in Perth on 23 June 2001 – WA Coroners Court, August 2002.

[11] A Federal Court judge has severely criticised the Refugee Review Tribunal's handling of two cases for asylum, saying its deliberations were difficult to comprehend, biased and based on a selective use of evidence. Russell Skelton, The Age June 18 2002

[13] The statement of claims that accompanies the application for refugee status is a Statutory Declaration and, as such, requires the person signing it to be over the age of majority.

[14] Refugee Council of Australia Submission into HREOC Inquiry on Children in Detention, p 6

[15] RCOA’s submission highlights examples from a number of other jurisdictions and makes a number of detailed recommendations for how Ministerial guardianship powers could be delegated to a Panel of Advisers.

[18] Refugee Council of Australia has recommended delegation of Ministerial Guardianship responsibility to a special Panel of Advisers.

[19] See submissions to HREOC Children in Detention Enquiry from Chilout and for extensive argument for change.

[21] Principles 7, 8. While all detainees will be individually assessed for detention or release, priority for release will be given to unaccompanied minors

children and close relatives of a child detainee, those older than 75 years of age, single women, those requiring specialist medical attention that cannot be provided in detention, especially if they have had previous experience of torture or trauma.

[22] Principle 7. The continued detention of some asylum seekers will be justified and reasonable and acceptable under international law: those who have not lodged an application for a protection visa; those who are considered on reasonable grounds to pose a threat to national security or public order or public health or safety; those who are assessed as very likely to abscond; those who refuse to undertake or fail the health screening; those who do not assist the identification and determination process.

The critical element is that these assessments are made on an individual, person by person basis and are not general judgements applied to an entire group of asylum seekers or to all asylum seekers.