On 19 February 2021 the Refugee Council of Australia (RCOA) made a submission to the Legal and Constitutional Affairs Legislation Committee on the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.
This Bill would deny refugee applicants procedural fairness through a secretive Ministerial process which they would be unable to challenge. It offends the principles of the rule of law and a fair trial and presents a significant risk that refugees who may have confidential information used against them may be sent back to harm.
Australia’s non-refoulement obligations require a fair and effective decision-making process, in order to ensure that those with credible fears are not sent back to harm. This requires an independent assessment and the chance for refugee applicants to review and respond to any adverse information used in deciding their application. This requirement is in the interest of all parties – it ensures that a decision maker has all relevant information before making a life or death decision, so that they can make the correct decision.
However, this Bill would prevent refugee and citizenship applicants from reviewing confidential information used against them in their application. It would also prevent the Administrative Appeals Tribunal (AAT) from viewing protected information, essential denying such applicants their right to merits review. It would also require the courts to prevent applicants and their legal representatives from viewing or responding to such information.
RCOA recommends that this Bill not be passed. However, if the Committee is of the view to support this Bill, we recommend, at a minimum, that the Bill be amended to allow for a security-cleared legal representative to view and respond to confidential information on behalf of an applicant. Such a system is already established in other national security matters, and could easily be adopted for migration and citizenship matters.