Refugee tribunal a check against the culture of no

By Adam McBeth

The Australian, on March 18, 2013, reported (paywall) on Department of Immigration and Citizenship (DIAC) figures that showed a remarkable 74 per cent success rate in the Refugee Review Tribunal (RRT) since July 2012 among people who arrived by boat.

That figure is inflated somewhat by omitting cases that were withdrawn before a hearing and those that were dismissed for being out of time or otherwise outside the tribunal’s jurisdiction, but it is striking nonetheless.

Scott Morrison was quoted as saying the figures made “a mockery of the initial assessment of asylum claims” by DIAC. He is right about that, and furthermore, they make a mockery of the hysteria from both the Government and the Opposition that paints boat arrivals as a particularly sinister category undeserving of the protection they claim.

On making a mockery of the initial assessment by DIAC, Mr Morrison is correct because it is plain that the initial case assessment in the majority of these cases is wrong. The majority of boat arrivals who come before the RRT have wrongly been denied the protection visa to which they are entitled under Australian law, and the RRT has recognised and corrected that error when it reviewed a case and decided to overturn the decision of DIAC to refuse a visa.

That process is the very point of a merits review tribunal. Contrary to the common parlance describing RRT review as an “appeal”, the RRT is not a court and an application before the RRT is not an appeal on some legal technicality. Rather, it is a review of the case on its merits; an administrative decision in which the tribunal takes a fresh look at the case and decides whether or not the person meets the criteria for a protection visa.

The fact that so many of the applicants who arrived by boat have succeeded in having the denial of their visas overturned by the RRT suggests that there is indeed something very wrong with the initial assessment of these cases by DIAC.

This problem becomes all the more stark when the figures cited by The Australian are compared to RRT decisions where applicants did not arrive by boat. Using the same method (excluding cases that were withdrawn and dismissed), the overall rate of DIAC decisions set aside during the same period, covering all types of arrivals, is just 39 per cent. When boat arrivals are excluded, the success rate drops to just 24 per cent.

Given these figures, it is clear that the RRT is not simply a bleeding heart institution that says yes to everyone who applies to it. In the vast majority of cases that do not involve boat arrivals, the RRT sides with the original decision by DIAC.

Clearly, then, there is something very wrong with the way applications for asylum from people arriving by boat are being assessed by DIAC. One possibility is that there is a “culture of no”, similar to the way insurance claims were once reputed to operate – the case officer’s default stance is to deny the application, on the assumption that anyone who has a serious and credible claim will take it to merits review and prevail, and the others will be weeded out.

If that is true, it creates an unnecessary and costly two-step process in forcing meritorious applicants to the tribunal, often with prolonged immigration detention in the meantime, but it ultimately works as long as there is an independent tribunal available to fix the problems at the second step. If that second step is removed for people who arrive by boat, a “culture of no” becomes very problematic.

To be entitled to a protection visa under Australian law, a person must demonstrate that he or she has a well-founded fear of persecution for one of the reasons set out in the Refugee Convention (race, religion, nationality, social group or political opinion), or a real risk that he or she will be arbitrarily killed or tortured, if returned to another country. When a person is granted a protection visa, it is accepted (by DIAC or the RRT, as the case may be) that he or she is literally fleeing for his or her life.

The fact that the RRT has reached that conclusion in 74 per cent of cases involving people arriving by boat suggests that people desperate enough to take the risky boat voyage to seek asylum in Australia are indeed statistically very likely to be genuine refugees. Given the life-or-death stakes for such people, it is hard to imagine any disincentive – no matter how cruel successive Labor and Liberal governments are prepared to be in their constant one-upmanship – succeeding in “stopping the boats”.

Since August 2012, asylum seekers who arrive by boat are of course susceptible to being transferred to Nauru or Manus Island for offshore processing. The fiction of that arrangement is that the processing then takes place pursuant to the law of Nauru or Papua New Guinea and has nothing to do with Australian law. Those people are therefore unable to access the RRT at all.

If the Government’s bill to excise the entire Australian mainland from the Migration Zone passes the Senate with Coalition support, as expected, no-one arriving by boat will be able to make a valid application for a protection visa without the personal intervention of the Minister, and their access to the RRT would fall away too, making the Coalition’s announced plans to remove RRT access redundant.

If merits review is limited, particularly for a class of people who have shown that their claims are likely to be genuine and that initial refusal of protection visas tends to be wrong, the only option open to asylum seekers will be to head straight to the courts to seek judicial review. That is a far more time-consuming and expensive process than dealing with these cases in the RRT, but because the right to seek judicial review against an officer of the Commonwealth is entrenched in the Constitution, it will be the last avenue standing when the Government (or the future government) removes all the others.

The outcome will simply be the clogging of the courts, and it is very likely that the High Court, if it finds that an applicant was denied procedural fairness in the stripped-back system, would require the reinstatement of the sorts of merits review procedures that the Government and Opposition are now clamouring to remove.

This article has previously been published on ABC’s The Drum here.

One response to “Refugee tribunal a check against the culture of no”

  1. Hi Adam, I think you need more info to draw these conclusions (just as little of significance can be drawn from bare conviction or appeal rates in the criminal justice system.)

    The Oz article never states what percentage of people who are initially refused a protection visa actually seek a review before the RRT. There’s no problem if nearly all do (and perhaps that’s the case) but otherwise it may be that the RRT overturn rate is partly a reflection of the decisions of the unsuccessful claimants.

    The comparison between boat and non-boat arrivals may need some care too. It’s clear that some nationalities raise more contentious issues than others and the mix may vary for each group. A bit of googling suggests that the department-level grant rate is much higher for boat than non-boat arrivals, for instance, suggesting that the RRT figures for non-boat arrivals may just reflect a less plausible base set of protection claims than boat arrivals, rather than a particular fault at one tier of the process as you suggest.

    Anyway, this is just speculation. But my point is that drawing absolute conclusions about one layer of a multi-tier decision system (or relative conclusions between different groups within that system) requires a lot more detail than the Oz article offers.

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