Justice is slow in the ‘fast’ asylum regime

highlights on a roadFast track has left thousands of genuine refugees in limbo and made lawful what would otherwise be considered gross administrative misfeasance. Fast track applicants were not sent to Nauru or Manus and they live in the Australian community, as do others who seek our protection and arrived by plane. Despite this, they are singled out with a particularly harsh standard of administrative justice.


At the centre of the fast track regime is the Immigration Assessment Authority, the body that reviews departmental refusals of fast track applications. Unlike real tribunals, the IAA is not bound by the rules of procedural fairness, a legal doctrine as ancient as Plato and refined by centuries of judge made law.

Procedural fairness, also known as natural justice, simply provides that a person has a right to be heard before an adverse decision is made affecting their rights. Assessors in the IAA determine cases ‘on the papers’ and asylum seekers have no opportunity to meet and address the person deciding their claim. It is in this respect that the purported aim of the fast track process, efficiency, has been found to be most illusory.

In a series of cases the federal courts have found that the faux review provided by the IAA assessors has led directly to the failure to consider cases and issues properly. These constant failures are unsurprising; indeed, they are inevitable in a system that attempts to make a virtue of poor administrative process. Procedural fairness may protect the citizen, but its greatest impact is on the quality of decision making, regardless of outcome.

Some of these federal judgements have also seen a strict interpretation of the fast track legislation to ensure at least the consideration of whether a fair process should occur. One recent example concerned an asylum seeker from Tripoli, Lebanon, who claimed to be at risk from the militant group Hezbollah. The issue in the case was whether he was safe to return home to the Lebanese city of Tripoli.

The public servant who initially considered the case found him not to be credible and rejected his claims for asylum. The IAA however took a different view. The assessor accepted the man was indeed at risk in Tripoli, but decided he was safe to return to the capital Beirut. This occurred without the man ever having a chance to comment on whether he could relocate to Beirut, let alone whether he would be safe there.

“The fast track regime has no impact on people smuggling and is of dubious effect in achieving its stated aim, administrative efficiency.”

On appeal the Full Federal Court was bound by the legislation and not able to strike down the decision on the basis of the obvious lack of procedural fairness. Rather, the court interpreted the IAA’s powers to receive fresh evidence and held that it was unreasonable not to at least consider hearing from him about how he might fare if returned to Beirut. This being the question upon which he had never had a chance to be heard.

This strict approach however is no substitute for true procedural fairness, it merely requiring the IAA to consider being procedurally fair, not to actually be so. Unsurprisingly, asylum seekers are being refused protection at a higher rate in the IAA than in the other tribunal which properly reviews asylum seeker refusals.

Perhaps the even harsher aspect of the regime is that if fast track applicants are found to be refugees they only have access to short term protections visas. Rather than rebuilding their lives in Australia, if a change of circumstances occurs they can be removed to often unstable home countries.

The fast track regime has no impact on people smuggling and is of dubious effect in achieving its stated aim, administrative efficiency. IAA annual reports suggest only 6085 persons have been processed, some five years after its creation. Fast track imposes a system of administrative injustice that Australians would not accept if it applied to them. Yet history tells us that the standard we accept for a minority becomes normalised.

While the plight of asylum seekers on Nauru and Manus dominates the headlines, the dangerous parody of administrative justice that fast track applicants are subject to has largely escaped scrutiny. It is high time Australians took an interest in these second-class asylum seekers and demanded the repeal of policies that are a policy triple whammy; cruel, unfair and pointless.

 

highlights on a road
The fast lane, the slow lane … which lane gives justice to asylum seekers?

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This article originally appeared on Eureka Street and is authored by Stephen Lawrence. Stephen Lawrence is a barrister in NSW specialising in public law. He has represented many fast track applicants in the federal courts.