Inside The Refugee Tribunal
The Age
Friday November 9, 2001
THEY come here to have their fates decided. These small rooms in Melbourne and Sydney are blue-grey or dull white. Each has standard-issue desks and chairs, a potted plant, a washed-out watercolor print, a tape recorder, a crest of Australia and a box of tissues, sometimes two.
The Refugee Review Tribunal is a quiet place. Its rooms seem far from the potent images of the nation's refugee debate: a dull-eyed six-year-old boy, a man who set himself alight, 438 people sweating on the decks of a freighter, three little girls drowned with a boatload of others off the Indonesian coast.
When a tribunal member walks into a hearing room, those images must be forgotten. He or she sits alone to hear intimate details of an asylum seeker's life: their hopes, motivations, nightmares.
The asylum seekers may be likeable, they may make valuable citizens, but that does not make them refugees. A tribunal member can only apply the United Nations Refugee Convention's definition of a refugee (see panel at right).
An asylum seeker who appears at the tribunal or via a video link from a detention centre has already been rejected by the Department of Immigration. The stakes are high. A mistake could mean a person is sent back home, to persecution or even death.
The government's package of migration amendments passed in September seeks to make the tribunal the final forum of appeal for asylum seekers (see story below). This worries the tribunal's critics, who say the quality of its decision making should be boosted, not its powers. Susan Kneebone, an administrative law expert at Monash University, made a three-year study of 200 cases at the tribunal. She found a widespread perception that it was not entirely independent of the Immigration Minister and that many members suffered from ``compassion fatigue" and were increasingly deciding not to believe applicants. It was ``a very disappointing jurisdiction", she concluded.
The tribunal has 67 members: lawyers, former refugee advocates, public servants and some retired politicians. Full-time members are each expected to complete about 120 cases a year, or three a week. It is a heavy workload - too heavy, say some former members - but they are paid well (a full-time member's salary is $86,250 a year, plus a car). There are risks, however: security was tightened recently when a female member was phoned at home and threatened.
The Age spoke to four tribunal members - a senior member, Paula Cristoffanini, and three others on condition of anonymity - about their work. They appeared to be professional, fair and thoughtful people who cared about their job and about the integrity of Australia's refugee determination system. The tribunal, some felt, was misunderstood by the public and its critics. ``We actually only have this little bit of power, and that is to apply the convention," says one member.
The saddest part of their jobs, the members say, are cases involving children, the disabled or the elderly. It is often heartbreaking, they say, when a person is clearly not a refugee, but may die or suffer if sent home. An applicant, for example, may have AIDS. This is not persecution, so they are not a refugee, but being sent home to a Third World country will almost certainly mean no access to life-saving medication.
In such cases tribunal members can only alert the Department of Immigration and hope that Immigration Minister Philip Ruddock accepts the person under his discretion to grant humanitarian visas. (He granted 435 such visas in the 12 months to July last year.)
The best part of the members' jobs, they say, is finding a genuine refugee that the department has rejected. ``I am still happiest in my work when I find a refugee that someone has missed and I can argue my reasons," says one long-term member.
Most of the tribunal's 5649 cases completed last financial year - conducted confidentially, and almost always with an interpreter - were not boat people but asylum seekers who had arrived by plane on a student or tourist visa and then claimed refugee status. Boat people live in detention centres, but asylum seekers who come by plane live in the community while their their cases are determined. Detention centre cases are more complex, and ``very intense", a member says. ``They've been told by people smugglers what to say when they get here, they have talked among themselves about what they should say and there are a lot of rumors about what you should and shouldn't say.
``So a person who has set out as a genuine refugee might think that people will not believe their story. They go to Immigration and by the time they get to us there's an awful lot of layers over the nub of the story. You've got to be able to peel that away and to make them feel safe and confident enough to tell you what the true story is. Sometimes that reveals them to be genuine refugees and sometimes it doesn't."
AFGHANS and Iraqis are the most likely of all asylum seekers to be declared as refugees by the tribunal (see panel at right). Why, then, is the department rejecting so many of these cases in the first place? ``Something is obviously not working," says Graham Thom, Amnesty International's refugee coordinator. But the tribunal argues that it is mostly because it obtains information that wasn't available to the department or that circumstances have changed in the country in question.
Surprisingly, 44 per cent of applicants do not turn up to their hearings. Almost everyone says this is a drain on the tribunal's resources. Money and time is spent assessing documents and refugee claims; in the applicants' absence, tribunal members have little choice but to deny refugee status. It is an example, some say, of people using the system to delay their departure from Australia, or simply to disappear.
A tribunal member described two recent no-show cases. In the first, the applicant's adviser, when contacted, said that his client, a plane arrival, had moved and not left a forwarding address. Records show that he had not left Australia.
The second applicant's phone number was defunct and his adviser did not return calls. Tribunal statistics show that such applicants are probably from Asian countries and have probably disappeared into the community.
The most persistent criticism of the tribunal since it was created in 1993 is that it is prey to ministerial influence. The department finances the tribunal and the minister appoints members. Former Labor immigration minister Nick Bolkus was accused of stacking the tribunal and faced a Senate inquiry over his appointments to the Immigration Review Tribunal (now the Migration Review Tribunal, which deals with non-refugee migration matters).
Ruddock has also been accused of making political appointments. Former New South Wales state Liberal MP Bruce MacCarthy joined recently and the last round of appointments included former Victorian Liberal senator Karen Synon. Ruddock admitted at the time that he did not know Synon's qualifications in the area, but that the selection panel had found her suitable. He noted that he had also appointed Stephen Whitlam, a son of Gough, to the tribunal.
``There is ministerial pressure," says Adelaide barrister Tony Gibbons, who served on the tribunal under Ruddock and Bolkus, but has now left. ``It is indirect, but there is a pressure to produce decisions and deal with them quickly and don't bother about the niceties. There is pressure ... indirectly as well to not say too many people are genuine refugees."
With members on three-year terms, facing the threat of not being reappointed, it is impossible for members not to be influenced by the minister, critics say. ``There is pressure on them to deliver results conducive to their reappointment," says former Federal Court judge Marcus Einfeld. ``That's a complete denial of judicial independence."
Bruce Haigh, a former member and diplomat (now independent candidate in the NSW seat of Gwydir), thinks he was seen as a ``real pain in the arse" during his time at the tribunal. He says, ``a lot of the members have been to New York, Paris, Rome, but never to a Third World country. They are making decisions in a vacuum. They have never seen the look on the faces of people in refugee camps. What do you think they talked about when they came out of a hearing? Were they worried that they had made the wrong decision against somebody? No, the talk was negative, how they can properly reject applicants."
The members deny being influenced but they are aware of the minister's opinions. ``We listen to all the goss," says a member. ``We are people, and of course we listen to everything because it's our field of expertise.
``But the minister has challenged our decisions in the Federal Court (he does so about 20 times a year) and he's won and we've been reappointed. I would say that is an indicator that we are not in his sights when we make a decision he disagrees with."
TO SOME, the tribunal is too trusting of asylum seekers. Dr Bob Birrell of Monash University's Centre for Population and Urban Research believes acceptance of refugees by the department and tribunal is too high. ``We have been giving them the benefit of the doubt. It is exceedingly difficult to knock back a case," he says.
But refugee lawyers say tribunal members are rejecting more cases on credibility grounds: that they simply do not believe the applicant, often because he or she has given inconsistent statements. Kneebone cites examples of women who, because of their culture, are ashamed to admit in a first interview with departmental officers that they have been raped. ``They later claim that they are raped when they have seen a lawyer and realise how important it is for their case and they are then not likely to be believed," she says.
In the Federal Court in July, Justice Ronald Merkel commented on the tribunal's use of an asylum seeker's prior inconsistent statements as a reason for rejecting a claim. ``The tribunal should approach such statements with caution, making due allowance for linguistic, cultural and other difficulties confronting applicants for refugee status who are required to pursue their claims in an alien environment that they are likely to perceive as hostile," he said.
Some tribunal members are also accused of ``compassion fatigue". Refugee lawyers familiar with tribunal members in Melbourne and Sydney repeatedly nominate three members as being harsh on asylum seekers. Kneebone found some members carried prejudices about particular countries into the hearing room. ``The High and Federal Courts have found that a number of members have laughed at the applicants and have really been quite unpleasant and unsympathetic. It is totally inappropriate and I would suggest they are legally biased."
In a refugee appeal last year, Federal Court judges Robert Nicholson, Raymond Finkelstein and Margaret Stone said it was easy to understand why the appellant felt he was not given a fair hearing. The tribunal member, the justices said, was aggressive and ``if we may say so, unpardonably rude and offensive as well".
Sydney psychologist Zachary Steel, who has worked with refugees, says the determination process can harm the mental health of asylum seekers. ``The applicants have to recount in detail the most distressing moments of their lives - testimony that is often treated with doubt, suspicion and incredulity by the tribunal member," says Steel. ``There is little wonder that memories for details became blurred under such pressure, yet inconsist-encies in the histories provided are often used to reject a case."
How could the tribunal be improved? A big problem is that, as the government has stripped away legal aid for asylum seekers, the advice they get from lawyers is bad to non-existent. One tribunal member says that 95 per cent of legal advisers are ``average to terrible", and the quality of their legal advice is ``diabolical".
This means that some applicants turn up to the tribunal not knowing what the definition of a refugee is. When it is explained they sometimes admit that the definition does not apply to them.
Poor or no legal advice has an even more devastating impact on the system. Applicants who lose at the tribunal are sent a letter informing them that they can appeal to the Federal Court. They are not told that the chances of winning are less than 10 per cent, nor that the court can hear cases only on an error of law, not whether they are a refugee. All they have to do, if they are in detention, is send a fax to the court, and the appeal process continues.
Justice Einfeld, who heard many refugee cases while on the bench, thinks the department's letter is misleading. ``The vast majority come before the Federal Court without a lawyer, and start talking about their refugee status and the Federal Court has no power to hear it. It is a complete fraud on people telling them they have a right of appeal when they have no such thing."
The department spent about $9million last year fighting appeals. But when asked if asylum seekers should be given better legal advice, the minister said: ``Get real." Lawyers see it as a ``good gravy train".
But others believe asylum seekers would appeal less if the quality of decision making was higher: if the tribunal was enhanced to be a more judicial body, more distanced from the department, with more than one member sitting for serious cases.
New Zealand's Refugee Status Appeals Authority has a low level of appeal. Department officers are trained in refugee law, a lawyer is entitled to be present and an interview can go a day or longer. Members of the authority must be lawyers.
Justice Einfeld says the tribunal should be made into a stronger court, members should have longer tenure, a senior barrister or retired judge should be on hand to advise on issues of law, and the people making decisions at departmental level should be more experienced. He also called for legal aid to be reinstated.
But the former Federal Court judge feels there is little chance he will be heard. In the current climate, ``there is no way you can have a rational discussion", he says.
APPEALS: WHO WINS, WHO LOSES
? Eight in 10 asylum seekers that are refused refugee status by the Department of Immigration appeal to the Refugee Review Tribunal. Of those cases, the tribunal overturns 20 per cent of the department's decisions.
? Each year the department deems 75 per cent of about 4100 asylum seekers who arrive by boat, but only about 10 per cent of 9000 people who arrive by plane, to be refugees.
? The top 10 countries of origin of asylum seekers who appeal to the tribunal are: China, Afghanistan, Indonesia, Iran, India, Fiji, Iraq, Sri Lanka, Malaysia and Ukraine.
? Afghans and Iraqis are most likely to be declared refugees. In the past months, the tribunal has found 100 of 131 Afghan applicants to be refugees. By comparison, 12 of 106 Chinese were declared refugees.
HO W THE LAWS WORK
? What is the United Nations definition of a refugee?
A person who is unable or unwilling to return or to seek the protection of their home country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
? What are the changes to how the government decides who is a refugee?
PERSECUTION:The persecution a person fears must now involve systematic and discriminatory conduct. Previous court rulings said it was enough for a person to fear one act of persecution (in other words, if your husband was killed and you feared you were next).
POLITICAL ACTIVITY: Previous asylum seekers could argue they were at risk of persecution in their home countries because they had been politically active in Australia.This risk can now be ignored.
SOCIAL GROUP: A Colombian family claimed refugee status, saying they feared persecution after their brother had been killed over drug debts.This family, to the minister's displeasure,won their case, but under the new laws the family member must have been persecuted for a reason listed in the Refugee Convention (such as race or membership of a religious group). A family member persecuted over drug debts will not now constitute a reasonable fear of persecution.
IDENTIFICATION: Unfavorable inferences can now be drawn if a person does not have appropriate identification.
Many boat people, to get out of a country they are fleeing, discard their documentation; people smugglers often advise them to do this before they reach Australia.
MULTIPLE MOTIVATION TEST: If there are multiple reasons why a person is being targeted for persecution and only one of these relates to the convention (i.e. political opinion, race, religion) then that must now be a significant reason for the persecution. If a person, for example, was targeted for extortion and his or her race was one of the reasons, but not the prime reason (which was to make an illicit profit) then that person will be denied refugee status.
? What other changes do the laws make?
BORDER PROTECTION: Christmas Island,Ashmore Reef, Cocos and Cartier islands have been excised from Australia's migration zone.The defence forces have the power to forcibly turn boats around. Boats entering Australian waters can be boarded by naval officers.Those on board can be searched, detained and moved to other countries for processing.
NEW VISA REGIME: Any boat people reaching these excised territories will never gain permanent residency even if found to be genuine refugees. They can never bring their families to join them, and cannot return to Australia if they leave.They have less access to services than refugees on permanent visas.Their temporary visa is only valid for three years.
These changes also apply to between 2500 and 3000 refugees living in Australia who had not applied for permanent residency when the laws were passed.
PENALTIES FOR SMUGGLERS: Minimum mandatory sentences of five years for first-time smugglers and eight years for repeat offenders.The maximum sentence for both offences is 20 years. -- Additional reporting by KERRY TAYLOR
© 2001 The Age