A fast track to injustice

The task of determining refugee status is a complex one that requires a decision-maker to have all the essential facts of the claim before they make their decision. The latest proposal by the Coalition Government to “stop the boats” is to implement a policy known as the ‘detained fast tracking’ process (DFT), which will undermine the essential right of an asylum seeker to have their claim heard properly.  Under this process, based on the UK version, a case that is deemed to be “straight forward” will be fast tracked and a final outcome made within 14 days. An asylum seeker will then be given just two days to decide if they would like to appeal the decision to another departmental officer and if that review is unsuccessful they will be removed from Australia within 21 days. Despite the aim of having applications finalised within three months, many asylum seekers are held in detention for much longer. Similar to other anti-asylum seeker policies, the DFT process is essentially about the government ensuring it can reach its removal targets.  It is deeply concerning that we decide to deprive asylum seekers of the right to have their claim heard properly and justify this on the basis of administrative convenience and efficiency.

There is no doubt that such a policy has the potential to undermine our non-refoulement obligation, particularly because  a UNHCR audit of the UK version found poor quality decision making within the DFT process. Under this process an asylum-seeker will usually be given just one day to present their case to a single immigration official. While they will be appointed a lawyer, sometimes they have as little as a half hour to meet and discuss their claim. This limited opportunity for asylum seekers to meet their lawyer is particularly problematic and challenging for victims of abuse and rape. They may need time to build a relationship of trust with their lawyer before they can reveal sensitive information about their case – information that is usually vital to their asylum application.

It is likely that the Coalition Government will try to implement this policy in Australia even though it goes against what Australia has stood for in the past, and is an unacceptable infringement on the rights of the vulnerable. As many human rights groups, medical organisations (including the Royal Australasian College of Physicians) and the UNHCR have noted, the process denies asylum seekers the opportunity to explain their case adequately. It denies them time to effectively prepare their case, and is designed to swiftly remove asylum seekers rather than to efficiently process their claims. It is especially harmful because of the underlying assumption that any refugee claim is straightforward. In fact, as the UK version has shown us, many of the cases which were unfairly dismissed as being ‘straight forward’, were in fact far too complicated to be heard and determined in only two days.

How will any decision maker be able to understand the unique circumstances of an asylum seeker if they are given such a short time to prepare their case? As we’ve seen with the UK DFT process, inevitably there are people who are placed in the program who should never have been, such as victims of torture and rape. Many women who claim asylum in the UK base their claim on violence and persecution by non-state actors such as family members or their own husbands, which immediately raises the complex issue of lack of state protection.  Many of these women still end up in the DFT system because, despite the obvious complexity of their claims, officials have deemed their claim as ‘straightforward’. As the Independent Chief Inspector of the UK Border Agency noted, there is simply not enough safeguards in place to prevent such individuals being placed in the program.

Case studies from the UK fast track model have shown that the process has left some asylum seekers in detention for months, and sometimes longer than a year. An Amnesty report compiled many instances where this had occurred. For instance, one asylum seeker, Meguen, spent nine months in detention after his original claim was fast tracked. Upon arrival to the UK, Meguen’s application was rejected after three days. UK authorities attempted to forcibly return Meguen but this was aborted and he spent nine months in detention, after which he was granted temporary admission to the UK. Many people experienced similar situations including assault by escorts attempting to forcibly return them. Mistakes by authorities have been regular occurrences in the UK. Such errors have included not notifying solicitors, and not notifying asylum seekers or their solicitors of dismissed claims.

A process that has resulted in mistakes that deeply affect people’s lives should not be a system that Australia is interested in implementing.

 Proponents of the system will note that there are some safeguards, such as mandatory exclusions for women who are at least six months pregnant, people with severe mental illness, children, and families with dependants. However these safeguards do not address the critical problem that the DFT process is inherently flawed and based on the erroneous inference that any asylum seeker claim, which will always be unique, can be determined in two days by a single immigration official.  For this reason Australians should reject any plans by the Coalition Government to implement a process that operates to circumvent an asylum seeker’s right to have their claim heard properly. We must never allow ‘administrative convenience’ to undermine a fair, robust and effective asylum system.