The following presents the key findings from the application of the Refugee Response Index (RRI) to the Australia context, focusing on Pillar 2 of the RRI: Recognition as refugees.
Refugee Response Index (RRI) Australia Review
Overview
As the low scoring of all components under Pillar 2 suggests, Australia’s approach to recognising refugees is largely mired by inconsistency and a range of legal and institutional shortcomings. In particular, there exists two different refugee status determination (RSD) processes – one that is applied to refugees who arrive on a different visa, and a ‘fast track’ process that is applied to a cohort of asylum seekers who arrived by boat before 19 July 2013 and hadn’t had a decision on their refugee claim prior to the change of government in September 2013.
Regardless of which RSD process an asylum seeker is subject to, the lack of free legal assistance, shortcomings and under-resourcing of administrative and judicial decision-making bodies, and inadequacy of support for asylum seekers awaiting decisions for many years, all undermine the rigour of refugee recognition processes in the Australian context.
Pillar Two – Australia (Unweighted Scoring)[1]
Component 2.1: National legal frameworks provide an adequate interpretation of refugee definitions
Scoring of the five indicators under this component suggest an inadequate interpretation of refugee definitions in Australia’s national legal framework. While Australia is a signatory to the 1951 Refugee Convention and 1967 Protocol, the State has not incorporated international definitions into domestic legislation (Indicator 2.1.1). The Migration Act 1958 (Cth) provides a modified definition of a refugee drawing on concepts from the Convention.[2] While some domestic reinterpretations are broadly consistent with Australia’s obligations under the Refugee Convention, several do not reflect the Convention and international guidelines on the assessment of refugee claims. Of particular concern are new requirements which set unreasonably high thresholds for the grant of refugee status.[3]
Administrative and judicial decisions are based on domestic legislation which does not incorporate the Refugee Convention and international guidelines (Indicator 2.1.2).[4] The Administrative Appeals Tribunal (AAT) Guide to Refugee Law does refer to the UNHCR Handbook and commentaries on the Convention published by UNHCR, but only as these ‘can provide useful guidance on aspects of the [Refugee] Convention in the absence of binding [Australian] authority’.[5] Overall, RSD processes and legal reasoning in Australia departs from the reasoning of international human rights bodies in favour of Australia domestic jurisprudence (Indicator 2.1.3).[6]
In terms of prima facie refugee admission (Indicator 2.1.4), there are no provisions in Australian law for prima facie refugee admission under which the recognition of refugee status is based on easily discernible, concrete circumstances in the country of origin. However, the government made an exception for some Afghan nationals in 2021. Afghans identified and evacuated by Australia following the fall of Kabul to the Taliban were granted temporary humanitarian stay visas (449 sub-class) to enter Australian territory, and given until November 2022 to apply for permanent visas subject to RSD on an individual basis.[7]
Finally, the Migration Act 1958 section 36(2A-C) enables asylum seekers to claim complementary protection if they do not meet the refugee definition but cannot return to their home country because they will suffer certain types of harm (Indicator 2.1.5). Complementary protection is drawn from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and the International Covenant on Civil and Political Rights (ICCPR) and have been incorporated into the Act. In practice, categories of complementary protection are applied under the discretionary power of the Minister for Immigration and claims against the refugee criterion are not automatically assessed as claims of complementary protection.[8]
Component 2.2: Institutional frameworks support fair Refugee Status Determination (RSD)
Five out of the eight indicators under this component were scored with a ‘3’ due to the partial or differential RSD procedures applied to different cohorts of asylum seekers. In particular, around 25,000 asylum seekers have been subject to a ‘fast track’ RSD process which has applied to people seeking asylum who arrived in Australia by boat before 19 July 2013.[9] The ‘fast track’ process differs from the RSD process applied to other asylum seekers, which generally has a stronger framework supporting fairer RSD. For example, individuals can be ‘excluded fast track applicants’ if they have made, in the opinion of the Minister for Immigration, a ‘manifestly unfounded’ claim. Legal services have observed applicants from certain countries (including Malaysia and India) are not provided interviews, suggesting there may be an unofficial list of countries of origin from which applicants are not given an interview (Indicator 2.2.1).[10] RSD undertaken through the ‘fast track’ process also limits review rights.[11]
The AAT reviews regular RSD processes and there is a separate “fast-track process” for asylum seekers who arrived in Australia without a valid visa through the Immigration Assessment Authority (IAA). There are also provisions for judicial review of the administrative decisions however, due to a lack of adequate resources, there are delays of 3-8 years for decision-making.[12] Access to interpreters and information in language regarding RSD processes in Australia is mostly provided.
With regards to interviews and the treatment of applicants during RSD processes, experts have described the interview process in Australia as a ‘demeaning and hostile process for applicants’ and that legal representatives are not given an adequate opportunity to discuss relevant issues (Indicator 2.2.4).[13] Furthermore, there are significant barriers in Australia with regard to access to legal assistance during RSD procedures (Indicator 2.2.6). The Immigration Application Advice and Assistance Scheme (IAAAS), created to provide free, professional migration advice and visa application assistance ceased receiving federal government funding in 2014. The budget to provide free legal assistance for those arriving with a valid visa is limited to unaccompanied minors and those who are extremely vulnerable and lack the capacity to complete an application, such as people who have mental health concerns or cognitive impairment. Free legal assistance is also only provided during administrative procedures, not for judicial reviews. All other applicants have access to legal assistance but at their own cost and occasionally pro-bono. Only those subject to ‘fast track processing’ in exceptional vulnerability have access to free legal assistance under the Primary Application Information Service based on the discretion of the Department of Home Affairs and with limited accessibility to the administrative review.[14]
Component 2.3: Asylum seekers are provided with basic needs and services while awaiting status determination
Access by asylum seekers in Australia to food, water, sanitation and hygiene (WASH), non-food items (NFIs) and accommodation that is safe and secure are all undermined by financial insecurity[15], lack of eligibility to government social supports or immigration detention practices. For example, evidence suggests there is high prevalence of food insecurity among asylum seekers[16] and that many struggle to find and sustain affordable, safe and secure housing and are at risk of homelessness.[17]
Asylum seekers’ entitlement to health care in Australia depends on their visa conditions. People in closed detention are provided primary and mental health care services through a contracted provider, International Health and Medical Services (IHMS). Health services provided in facilities cover some specialisations and are delivered by external providers. According to experts, there are delays in accessing external services. For instance, some asylum seekers have been diagnosed with Hepatitis C and are not treated, and mental health care has limited effectiveness due to ongoing detention and uncertainty.[18] Regarding those living in the community, most have access to government healthcare (i.e., Medicare), however asylum seekers on time-limited bridging visas face challenges in accessing Medicare. In the case of individuals who arrived on a valid visa and requested asylum, they generally have bridging visas with the same conditions as the visa they entered the country on. For this reason they normally do not have access to Medicare (e.g., arrivals on student, tourist, or short-term visas do not include entitlements to Medicare access).
Indicator 2.3.7 (Do asylum seekers have freedom of movement during RSD procedures?) was scored at the lowest due to the practices of immigration detention by Australia, as well as asylum seekers subject to offshore (regional) processing who are residing in the community in Australia being subject to removal to Papua New Guinea (PNG) or Nauru at the discretion of the government. While not all asylum seekers have restrictions on movement imposed, for those that are detained this can be indefinite. As at 31 December 2021, the average amount of time in detention was 689 days.[19]
Regarding access to education for asylum seekers, education and training is not provided to those held in closed detention. Asylum seekers in community detention have access to kindergarten, primary, secondary and language schools, but do not have rights or access to tertiary education. However, some states like Victoria support eligible asylum seekers to access to Skills First Victoria vocational training. Those living in the community on bridging visas, generally have the access to the previously mentioned services, as well as to tertiary education at international student rates. There is a recent practice of the Department of Home Affairs to remove study rights for bridging visa holders who turn 18.[20]
Component 2.4: Asylum seekers and work rights
Asylum seekers’ rights to work are related to their legal status and mode of arrival. In practice, while most seeking asylum have the right to work, there remain difficulties in timely renewal of bridging visas and practical barriers that expose them to work-related precarity.[21] Restrictive policies such as ‘short-term and conditional visas, [lead] to risk aversion on the part of employers, fragmentation into insecure jobs, and in-work instability and maltreatment’.[22] People in closed detention and community detention are subject to freedom of movement limitations and do not have work rights. Asylum seekers who arrived with valid visas remain on their entry visas and associated conditions for the duration of that visa. For instance, if they arrived as tourist they would not have rights to work, and student visa holders have work limitations to 40 hours a fortnight. Once their original visas expire, they remain on bridging visas while awaiting RSD, which can take up to 8 years. This might entail a significant stretch of time without work rights. As of 31 August 2021, there were 1,782 people on bridging visas without work rights.[23]
In terms of assistance to secure work (Indicator 2.4.4) for those who have work rights, job placement assistance is not provided by the Federal or State Government, but some for-purpose organisations have programs in place to assist asylum seekers to access the labour market. Similarly, asylum seekers face several barriers in the process for the recognition of prior studies, experience, certifications and licenses. Practical barriers include costs, time, language and access to documentation.[24]
Component 2.5: Deportation of failed asylum seekers respects international standards
Under this component, Indicator 2.5.4 (Can asylum claims and/or applications to remain be exceptionally considered for asylum seekers and refugees who are eligible to be returned to safe third countries; e.g. where they may receive less protection?) was scored at the lowest. Applicants who can remain in a safe third country are generally unable to remain in Australia by s36(3) of the Migration Act.[25]
Indicator 2.5.2 (Are application of the exclusion clauses subject to fair procedures, such as not automatically requiring expulsion of the asylum seeker from the country of asylum?) was considered inconsistent in the case of Australia. Section 5H of the Migration Act provides that a person is not a refugee if: (a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or (b) the person committed a serious non-political crime before entering Australia; or (c) the person has been guilty of acts contrary to the purposes and principles of the United Nations. However, according to legal experts surveyed, applicants sometimes cannot access security assessments and other documents relied on that are relevant to these exclusion clauses. This denies them procedural fairness in advocating for their protection visa application and the right to remain in Australia.
Asylum seekers who arrived on a valid visa can appeal a visa refusal to the AAT where they will have a chance to be heard again and provide additional documents (Indicator 2.5.1). However, asylum seekers subject to the ‘fast track’ process do not have access to merits review through the AAT, but rather have a limited review process through the IAA. The IAA provides minimal protections and grounds for appeal. Both groups then have access to judicial review in the Federal Courts, but this is limited to legal error, which presents a significant barrier to many appeals succeeding.[26]
Regarding prohibition of collective expulsion for failed asylum seekers (Indicator 2.5.5), deportations from Australia happen on an individual basis. However, Australia does maintain turnback policies which can be regarded as a form of collective expulsion (see Pillar 1).
Pillar 2 Cross-cutting issues
How cross-cutting groups are considered in Australia’s refugee recognition processes is generally poor. There is some reference to gender, disability, sexual minorities, ethnic/religious minorities and trafficking victims in refugee definitions, however it is difficult to ascertain how consistently considerations are applied in decision-making.[27] There is no reference to age considerations in national legal frameworks.
While there are some minimal provisions made to address the specific needs of some cross-cutting groups during RSD processes (for example, provision of free legal assistance to unaccompanied minors, and procedural guidelines that refer to gender with regard to interviewing asylum seekers) and while asylum seekers are awaiting the outcome of an RSD decision (e.g., unaccompanied minors support program), for the most part there are no specific measures or guarantees.
Australia’s approach to creating conditions for a multi-stakeholder approach to refugee recognition processes is mostly tolerant. In the provision of assistance while a person is awaiting the outcome of an RSD decision, the state relies on non-state actors to fill gaps (e.g., in provision of basic needs, job search assistance). With regards to deportation of failed asylum seekers, the Australian government largely restricts the engagement of actors, including in the monitoring of deportations.
More information
Download the RRI Australia Report Appendix to see a full description of indicators and scores for Pillar 2.
References
[1] This bar chart illustrates the unweighted average score for each component within the Pillar Two. A score of 5 indicates the best or highest response, with 1 being an assessment of the lowest or least desirable response. This scoring is indicative only, given that the indicators and components have not been weighted, and should not be used for comparison purposes.
[2] Commonwealth of Australia. Migration Act 1958, Sect 5h Meaning Refugee; AAT (2022). Guide to Refugee Law in Australia
[3] Expert opinion: Survey of legal services undertaken by RCOA for RRI in 2022.
[4] O’Sullivan, M. (2008). Withdrawing Protection Under Article 1C(5) of the 1951 Convention: Lessons From Australia; Hay & Kneebone (2006). Refugee Status in Australia and the Cessation Provisions: QAAH of 2004 v MIMIA
[5] AAT (2022). Guide to Refugee Law in Australia, p. 35.
[6] McDonald & O’Sullivan (2018). Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime; Kaldor Centre (2020). Refugee status determination in Australia
[7] RCOA (2022). How Australia Treats Afghan Refugees
[8] Kaldor Centre (2019). Complementary protection; DHA (2020). Refugee and Humanitarian Program. Complementary Protection.
[9] For details of criteria applied to determine asylum seekers subject to this ‘fast track’ procedure, see: RACS (2016). Fast Track Processing; Kaldor Centre (2022). ”Fast Track” Refugee Status Determination
[10] Expert opinion – RCOA survey of legal services, April 2022.
[11] McDonald & O’Sullivan (2018). Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime
[12] RCOA (2023). Fast tracking and ‘Legacy Caseload’ statistics
[13] Expert opinion – Asylum Seeker Resource Centre, Ben Lumsdaine, Maria O’Sullivan, RCOA, April 2022. See also, McDonald & O’Sullivan (2018). Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime
[14] Kaldor Centre (2020) Do people seeking asylum receive legal assistance?; Parliament of Australia (2015). QUESTION TAKEN ON NOTICE. ADDITIONAL ESTIMATES HEARING : 23 February 2015. IMMIGRATION AND BORDER PROTECTION PORTFOLIO. (AE15/092) – IAAAS Scheme – Programme 1.2 Visa and Citizenship (Administered); Victorian Bar (2014). Law Council Concerned by removal of IAAS Funding
[15] RCOA (2022). Status Resolution Support Services
[16] Right to Food (2021). What do we know about food insecurity in refugees and asylum seekers in Australia?
[17] Hermant (2022). Australia’s ‘hidden’ housing problem; Convery, S. (2021). ‘I was squatting’; why asylum seekers so often struggle to find secure housing
[18] Expert opinion, RCOA survey of asylum services (2021). See also: Public Interest Advocacy Centre (2021). Healthcare denied
[19] RCOA (2022). Statistics on people in detention in Australia
[20] RCOA (2019). Barriers to education for people seeking asylum and refugees on temporary visas,; Perales, Kubler, Xiang & Tomaszewski (2021). Understanding access to higher education for humanitarian migrants in Australia; Hirsch & Maylea (2016). Education Denied: People Seeking Asylum and Refugees Trapped in Limbo
[21] Refugee Access to Work Rights (2022). The Global Refugee Work Rights Scorecard. Australia
[22] van Kooy & Bowman (2019) ‘Surrounded with so much uncertainty’: asylum seekers and manufactured precarity in Australia
[23] RCOA (2022). People seeking asylum in the community on a bridging visa by work rights status
[24] van Kooy, J. V (2021). ‘Supporting economic growth in uncertain times’; Refugee Council of Australia (2022). 2022 Jobs and Skills Summit.
[25] Migration Act, http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5la.html
[26] Expert opinion, RCOA Legal Services survey, April 2022.
[27] See Section 5J(3) of the Migration Act. There are procedural guidelines (PAM3: Refugee and Humanitarian – Gender Guidelines) which provide guidance to Department officials on gender-related forms of persecution and significant harm and assessing protection claims and claims of persecution or substantial discrimination by women. However, according to the Queer Sisterhood report, there is still a long way to go in practical application. See: Queer Sisterhood (2018). Human Rights Violations of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seeking and Refugee Women in Australia: A Shadow Report for Australia
