Refugee Council of Australia
Large cardboard Welcome refugees sign in protest

State of the Nation 2017: Refugees and people seeking asylum in Australia

Slow tracking

Slow tracking

I don’t know what they mean by this “fast-track” process. For me, this is the slowest track!

Emanuel, Person seeking asylum

A story that has received less attention, however, is one that affects about 30,000 people in our community. This group of people arrived by boat and have been waiting for many years for their claim for protection either to be resolved, or to even have a chance to make a claim. Some of this group have already been found to be refugees but are being asked to start the process all over again. Those who arrived after 13 August 2012 are forced to claim protection under a new system, misleadingly called ‘fast tracking’, which changes the ways refugee claims are determined in fundamentally unfair ways. These people have found themselves having to navigate a complex legal system with forms totalling over 100 pages, in English without a chance for a fully independent review.

At the same time, the Australian Government has taken away almost all funding so that less than one quarter of these vulnerable people can access legal advice. As at 27 October 2016, only 7,168 people who had lodged an application were represented by a migration agent or eligible for the limited government-funded ‘Primary Application Information Service’ (PAIS).

Specialist legal centres have spent most of the last two years trying to raise funds and are dealing with increasingly unmanageable waiting lists. Only the Victorian government has provided some additional funding to help meet this urgent legal need.

[W]e have 3,000 people who are unrepresented in our clinic. It’s run by one lawyer and one admin person. We have to recruit volunteer interpreters because there is no funding. One bill we had was over $28,000 for interpreters. … And we have currently a year-long waiting list. We have 600 people on our waiting list… There are 9,000 people in NSW who need help one way or another. … They [the Department of Immigrations] are sending out letters and no one is applying because the letters are only in English. Then the Department has to ring them, saying we sent you a letter, bar has been lifted, why aren’t you applying. Well…there is a good reason why they haven’t applied…some people are getting private lawyers but I don’t know how many people have money after years of not working. The Department hate having unrepresented people come before them. The thing about seeing a lawyer is for the first time you are divulging what happened to you. It’s a very emotional confronting experience. It needs trained experts to pick out what is in line with Refugee Convention, etc. If there is not a lawyer helping transform that telling into something coherent, you’re getting decision makers having to do that. They normally have 2-3 hours for an interview. Then they have to deal with a messy story and have to make life and death decisions based on those stories.

Satri, Service provider, NSW

This group of people who have not been allowed to work for years, have not been able to learn English formally, and who are barely surviving:

We get $420 a fortnight. $300 goes towards rent for the share house. That leaves $120 for all other expenses. How can we afford legal representation? While they are waiting for their claims to be processed, they are so depressed and traumatised that they turn to negative coping strategies (e.g. alcohol, smoking). [through interpreter]

Mohamed, Tamil community member, NSW

Getting legal help is particularly difficult in Queensland, Western Australia and the Northern Territory. On Christmas Island, there is no real access to legal assistance other than over the phone. Even in Victoria, there are significant backlogs. Many people have volunteered to help, but the pressure on small organisations to manage extensive volunteer programs poses its own challenges. The need for legal assistance remains enormous. One counsellor raised the issue of the impact of this on torture survivors:

I find that heartbreaking because they can’t tell their story without assistance. There are many torture survivors in this …group, and the whole experience of being a torture survivor is about having your agency taken away from you. That reverberates down your life in all kinds of ways, but it makes it very difficult to tell your story to [an]… official…. The thing about torture is it’s humiliating. You don’t ever want to tell anyone about it because it nearly destroyed you as a human being. … The whole system has been set up against a torture survivor being able to succeed in telling their story, and I find that very sad.

Gulan, Counsellor supporting people seeking asylum

While the Australian government introduced a very limited scheme to provide lawyers to the most highly vulnerable, its introduction was far from smooth. Service providers did not know who would qualify and how people could tell the Department who was most vulnerable. It was clear that many people were falling through the cracks. Such concerns were evidenced by the fact that the Department’s government-funded legal scheme, Primary Application Information Service (PAIS), has only been available to 1,997 people, which is short of the 20% of people that it was originally anticipated to support.

The ‘fast tracking’ process has been very far from fast. Although established by December 2014, it did not start operating until mid-2015 and only started to process a significant number of cases by mid-2016. At the end of September 2016, nearly two years after the ‘fast track’ scheme was enacted, there were still nearly 16,000 people who had not managed to lodge an application, while only approximately 5,000 applications had been finalised. As at 29 September 2016, the longest period a Fast Track TPV application has been under primary assessment by the Department was 489 days. Although the Department refused to name an average processing time under fast-tracking, progress so far appears to fall well short of meeting the previous legislative benchmark of 90 days for making primary decisions.

We have, however, already heard concerns about the ways in which these claims were being assessed, including an inappropriate focus on identity and proof. For example, Sri Lankan Tamils could be asked to provide proof that their birth certificates and other identity documents had been confiscated. Sometimes the decision maker had incorrect information:

[The Department said:] “Well if you’ve been in Quetta from 2000 up until now it’s implausible that you would not have … a residence card”. And we’re saying “why would that be implausible?” [Immigration] “Because they can’t live without them”…. [We say] “Yes they can, are you aware that the … cards were only issued after 2006?” And they [Immigration] say “well we’ve got information” and we say “well our information is from UNHCR who actually produce the cards so where’s yours from?

Service provider, South Australia

A growing concern is with the adequacy of decisions by the Immigration Assessment Authority (IAA). This newly established body was designed to only review information that was already before the Department without hearing from the applicants directly and unable to consider any new or ‘late’ evidence. This compounds earlier decisions to remove the independence of the unit compiling country information relevant to people’s claims and the removal of experienced Refugee Review Tribunal members. So far, the statistics corroborate these concerns, as far fewer decisions are being overturned by the IAA in the ‘fast-track’ process.

As people are being rejected, they are being forced to apply for judicial review, adding to the Department’s considerable caseload. To date, 1,486 people have sought judicial review of their refusal decision. People have reported that, in some states, the first dates for the judicial review of these cases are being set as far away as 2018. Some people seeking asylum and awaiting judicial review have been seeking protection in Australia for years already and face going through more years of uncertainty, waiting in limbo and in the shadows.

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