Quick Post: Why Adam McBeth’s assertion about protection visa decision making is incorrect #auspol #asylum

Over on The Drum, the Deputy Director of the Castan Centre for Human Rights Law, Adam McBeth, argues that the success rate of appeals to the Refugee Review Tribunal demonstrates there is a problem with the Department of Immigration and Citizenship’s asylum seeker process.

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.

It’s an interesting article which reveals some rather horrible prejudices from the author.  He ponders whether the people assessing the case are influenced by 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‘.  There’s no evidence for this; it’s just easy for academics to take pot shots at bureaucrats.

But let’s look at the figures to see whether this mudslinging is warranted.

The article cited by McBeth reveals that, since July last year, the RRT has heard 676 cases and has overturned 503.  It doesn’t reveal what the success rate of the Department is (i.e. what proportion of the caseload are being rejected in the first place?).

Using more complete figures, we can take into consideration an entire year.

In 2011-12, a total of 7379 people who arrived by sea were screened into a refugee status determination process. [Page 25]

7,379 applicants and we’re freaking out over 676?!  Get a grip.

If Adam McBeth is correct and there is a culture of ‘No’, we should expect a really low success rate for IMA applicants, yeah?  At least less than half of applicants should be successful.

About 71 per cent of asylum seekers who arrived by sea whose claims were considered and decided in the first instance by officials were found to be refugees. [Page 28]

Boom.  Science.

So 29% are unsuccessful in the first instance.  Hardly a culture of no.

For a few years, there was a second level of assessment within the Department called an ‘Independent Merits Review’.  Applicants who were unsuccessful were permitted to make an entirely fresh case to a second decision maker.  Importantly, it also meant that if the conditions in the country involved had changed, the decision might change (you can’t make a claim for protection based on something which might happen in the future, no matter what the Greens argue).

In 2011-12, 2,224 people had a favourable decision from the IMR.  Again, it was the majority of cases reviewed were overturned (474 had their decision upheld).

Again, it doesn’t necessarily mean the original decision was incorrect.  We don’t know if the application changed between the two decisions (they often do).  We don’t know if the country conditions changed between the two decisions.  The philosophy behind the process is that the applicant gets every possible chance to make an application which favours their success.  If, at the end of the process, they still haven’t managed to do so, it’s hardly for lack of opportunity.

What’s interesting is that the IMR process no longer seems to exist which, frankly, I find worrying.

At any rate, when it comes to the RRT, the applicant again gets an opportunity to seek a decision and present new information.  I chose a recent decision at random and came up with 1209436 [2013] RRTA 21.  In this case, the RRT decided to remit the case for reconsideration with the direction that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The delegate found that the applicant faced discrimination and mistreatment but no serious harm during his military service. The delegate determined that the applicant had not suffered serious harm amounting to persecution in Turkey. The delegate noted that the applicant had returned to Turkey after having been in [Country 1]. The delegate noted that the applicant delayed lodging his protection visa and did not seek protection in [Country 1]. The applicant did not apply for protection until after his spouses visa was refused. The delegate noted that the applicant had told the MRT that he was embarrassed to return to Turkey because of a money issue. The delegate had serious doubts on the genuineness of the applicant’s claimed fear of persecution in Turkey.

If you get the chance, read through the applicant’s history, particularly the original claim for a protection visa which included:

The applicant claimed that his wife had psychological problems. She threatened him with deportation and the applicant made an application to remain in Australia as a victim of domestic violence. The applicant claimed that his wife had been violent to her previous partner. The applicant was faced with removal from Australia.

In the RRT hearing, the applicant provided additional materials:

Although initially the Tribunal had some concerns regarding the applicant’s claimed political activities, the applicant’s evidence regarding these activities and his motivation and belief in the cause of the Kurdish people was highly persuasive and credible.

So we’re not comparing apples with apples.  When people come before the RRT, they are presenting additional information that was unavailable to the original decision maker.  Further, by this stage of the process, the applicant’s case has been refined and ‘lawyerised’ by various asylum seeker interest groups who believe there’s no such thing as an unworthy application.

Adam McBeth’s argument relies on a total misunderstanding and misrepresentation of the process.  If there were a ‘culture of no’, there wouldn’t be the high success rate before applicants went to the RRT (in other words, it’s a minority of people going before RRT).  Secondly, if you want to make the case that the RRT success rate indicates that there’s a problem with the primary decision making, the cases presented before each need to be identical.  We don’t have a requirement that the case be identical because this would breach the principle that applicants should be afforded every opportunity to make a successful case.

In conclusion, it’s just an academic hating on public servants because he knows they can’t argue back.

[See also the post about The Conversation‘s ‘Expert Panel’ which was pretty much the same thing]

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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