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The assessment process
Determining the outcome of claims for refugee status entails two
separate but related assessment processes. The first, conducted by the Department
of Immigration and Citizenship (DIAC), determines whether claimants are genuine
refugees in need of protection. The second process is a security assessment
conducted by the Australian Security Intelligence Organisation (ASIO).
This second process begins only if and once a person is assessed as
being a refugee in need of protection. Those found not to be refugees are
subject to deportation, and are not assessed further unless they appeal the
initial negative assessment. These people are referred to as being on 'negative
pathways'. On 29 June 2011, there were over 2500 people on negative pathways in
Once refugees are security assessed, they are either released into the
community, or, if they receive adverse ASIO assessments, they are kept in
At present, the majority of asylum seekers remain in detention for the
duration of these processes. The average time spent in detention is 297 days.
Most people who seek asylum in Australia are ultimately found to be refugees
and issued protection visas.
The first part of this chapter will outline the two assessment processes
asylum seekers undergo. In the second part the Committee will focus on the
length and consequences of this process.
The United Nations 1951 Convention relating to the Status of Refugees
(the Refugee Convention) defines who is a refugee, their rights and the
obligations—both legal and moral—of states. Until the 1967 Protocol, the
Refugee Convention applied only to post-World War II European refugee
situations. These limitations were removed by the 1967 Protocol to allow
the Refugee Convention to apply to refugees in any country. Together, the 1967
Protocol and Refugee Convention form the cornerstones of refugee protection
People from anywhere in the world, whether Irregular Maritime Arrivals
(IMAs) or not, have a legal right to make claims for asylum in countries which
have signed up to the abovementioned treaties, irrespective of their method of
arrival. As a signatory to the abovementioned treaties, Australia has a legal
obligation to assess all claims for asylum against criteria defined at Article
1A of the Refugee Convention.
The visa process for determining who comes into Australia is regulated
under the Migration Act 1958 (the Act). The Act was amended by the Migration
Amendment (Excision from Migration Zone) Act 2001, which barred
non-citizens who first entered Australia at an excised offshore place without a
valid visa from applying for such a visa during their stay in the country.
Assessing protection claims
Depending on people's mode of arrival, there are currently two different
avenues of assessment of protection claims, dependent on asylum seekers' place
of arrival. Those who enter Australia's migration zone who are not
offshore entry persons (OEPs) can immediately apply for a protection visa
(Class XA)(Subclass 866).
However, OEPs arriving at an excised offshore place cannot lodge
applications for a protection visa. Under the Protection Obligation
Determination (POD) process, which applies to OEPs, the Migration Act prevents
a person who arrives at an excised offshore place and is not in possession of a
valid visa making an application for a visa. Any protection claims made since
the introduction of the POD process are subject to the process.
OEPs are sent to Christmas Island, where they begin their separate
Protection visa assessments for
Since 2005, DIAC has been required to reach protection visa decisions
within 90 days of receipt of an application. Approximately 60 per cent of such
decisions were made within the required timeframe in 2010-11. Where this 90-day
requirement is not satisfied DIAC reports this to the Minister and these
reports are tabled in Parliament.
The application process begins when a person applies for a protection
visa. As soon as they provide personal identifiers, their application is
accepted and their eligibility for a bridging visa assessed:
Asylum seekers who have arrived in Australia’s migration zone
and who subsequently lodged a Protection visa application may receive a
bridging visa. In most cases, the bridging visa allows applicants to remain lawfully
in Australia while their Protection visa application is being finalised.
Consequently, most Protection visa applicants are not detained for long
periods, and they often live in the community while their application for
protection is being assessed or reviewed.
At this point applicants undergo health, identity and character checks.
A DIAC officer assesses the case and determines whether further information is
required from the applicant. The applicant is then invited to an interview with
their allocated decision-maker. If more information is required from the applicant,
it may be requested during the interview or at any other point of the
On the basis of the information provided, the relevant DIAC officer
makes a decision to grant or refuse a protection visa. The applicant is then
informed of this decision and their right to review in the case of a refusal.
Asylum seekers who are found to be refugees are offered permanent
protection in Australia, subject to appropriate health screening, meeting the
character requirement and passing security checks.
Applicants not granted a protection visa may seek a review with the
Refugee Review Tribunal (RRT) with the power to review protection visa
applications. This power is subject to the Minister's decision that a review or
change in decision would be contrary to the national interest.
This review process is explained later in this chapter.
Protection determination process
OEPs are prevented by the Migration Act from making a valid application
for a protection visa. If they raise a protection claim, it is subject to the
The POD process represents a recent change in the department's
assessment processes. It was introduced on 1 March 2011, replacing the previous
Refugee Status Determination (RSD) process after a High Court decision on 11 November
2010 which found that Irregular Maritime Arrivals (IMAs) should be afforded
natural justice and provided access to judicial review.
Irrespective of their date of arrival, IMAs who received a primary
assessment interview after 1 March 2011 are now processed under the POD
Claims for protection subject to the POD process are assessed on an individual
basis against the criteria at Article 1A of the Refugee Convention, and in
accordance with Australian legislation, case law and up-to-date information on
conditions in the applicant's country of origin.
Applicants must put their claims in writing. All applicants are invited
to an interview to discuss their claims and provide more information if
required. Procedural fairness applies to all applicants in responding to
information that may affect the outcome of their assessment.
The following diagram provided by DIAC outlines the POD process:
The POD process is non-statutory and has two parts: a Protection
Obligations Evaluation (POE) stage and, in the event of a negative decision at
this stage, an Independent Protection Assessment.
Protection Obligations Evaluation
The POE determines whether an IMA is owed protection under the Refugee
Convention. To determine this, claims are assessed against criteria set out by
the Refugee Convention and considered in accordance with case law. Assessors
draw on currently available country information. For reasons of procedural
fairness, IMAs have the opportunity to comment on the information being
considered if they believe it could be adverse to their case, and can update
country information if there is a change in conditions in their country of
To make a POE decision, the Department draws on a range of sources,
the Department's Country Research Service, which collects
information from a variety of sources, such as international human rights
groups, Australian posts overseas, foreign governments, academics,
international media and other organisations;
departmental guidelines and advice on refugee law, protection
policy and procedures; and
client statements, which may include supporting material and
additional comments. These are provided in writing or during an interview, with
the help of an interpreter if necessary.
If the POE finds that an IMA is owed protection, the appropriate
recommendation is made to the Minister, who then exercises their power to lift
the bar, allowing the IMA to apply for a protection visa.
It is important to note that people who arrived as IMAs and received
their primary assessment before the POD process came into being on 1 March 2011
continue to be processed under the old Refugee Status Assessment (RSA) and the
Independent Merits Review (IMR) processes.
Those processed under the new POD process do not themselves have to lodge
applications for decisions to be reviewed. Instead, if DIAC is not satisfied
that a person is a refugee, their case is automatically referred for an
independent protection assessment.
Opportunity for review
Australia's immigration detention population currently consists mostly
of those who have received a negative protection visa decision and are involved
in process of review.
Several avenues exist to enable these asylum seekers and/or DIAC to review
Refugee Review Tribunal
Non-OEPs whose applications for protection visas are refused are able to
apply to the RRT for an IMR in relation to their case. Alternatively, they may
apply to the Administrative Appeals Tribunal if their application was rejected
for character reasons.
The RRT is an independent statutory body which '...provides a
non-adversarial setting in which to hear evidence'. It has the power to review
protection visa application decisions – unless the Minister is of the view that
such a review would be against the national interest. Applicants' claims are
examined by the tribunal against the provisions of the Refugee Convention.
The RRT may:
uphold the primary decision—agreeing that the applicant is not entitled
to a Protection visa
vary the primary decision
refer the matter to the department for reconsideration—the
department then makes a fresh assessment of the application, considering the
RRT’s directions and recommendations
set aside the department’s decision and substitute a new decision—if
the RRT finds the applicant is entitled to a Protection visa.
When undertaking its reviews, the RRT considers the merits of each
protection visa application anew, taking into account any relevant new
information, such as information supplied by the applicant or changes in
Independent Protection Assessment
When a person who arrived offshore receives a negative decision at the
POE stage, their case moves into the second part of the POD process, the
Independent Protection Assessment phase. At this stage an independent assessor
considers the case and its supporting information. The assessor may also
interview the refugee claimant before making a recommendation about whether or
not they should be found to be a refugee. The number of assessors was increased
to 124 in June/July 2011, and a Principal Reviewer and 3 Senior Reviewers
appointed to strengthen professional supervision.
In November 2010 the High Court found that people processed under
arrangements applying to OEPs were being denied procedural fairness in the
review of their claim. Following this decision, IMAs who are the subject of a
negative Independent Protection Assessment are able to seek judicial review of
their assessment. The review considers whether legal errors were made
over the course of the decision-making process, but does not reconsider IMA
claims. When judicial reviews find that legal errors have been made, the
original Independent Protection Assessment decision is set aside and a new
Liberty Victoria acknowledged this important outcome for asylum seekers
arriving by sea, but drew the Committee's attention to the potential for this
to increase time spent in detention:
It is inevitable that applications for judicial review, and
the time taken to finalise these, will add to the time spent in detention by
unsuccessful applicants for asylum (DIAC estimates it will add ‘many months’ to
time spent in detention).
Non-OEPs whose applications for a protection visa have been refused
already had the right to appeal to a court for review.
Seeking judicial review concurrently triggers an International Treaties
International Treaties Obligations
A person who is not found to engage protection obligations may under the
provisions of the Migration Act be subject to removal from Australia.
The removal process:
...takes into account Australia’s non-refoulement (non-return)
obligations under other international human rights instruments, other than the Refugee
Convention, such as the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the International Covenant on Civil and
Political Rights and the Convention on the Rights of the Child. The removal
process also takes into account other unique or exceptional circumstances that
may warrant referral of a person’s case to the minister under section 195A of
the Migration Act.
For this reason, judicial reviews of negative protection decisions also
trigger an International Treaties Obligations Assessment, which takes into
consideration Australia's non-refoulement obligations in cases where a
person is facing removal from the country. If appropriate, the assessment
results in protection being extended to people who are not found to be refugees
but who may not be returned to their country of origin due to a risk of
torture, cruel, inhuman or degrading treatment, punishment or violation of
their right to life, as well as in other exceptional circumstances.
Criticisms of the assessment process and its length
At the outset of this inquiry the Committee sought to establish why so
many people were spending significant periods of time in detention, prolonged
detention being the underlying cause of so much distress, mental illness and
community concern. Despite fluctuations, the Committee is concerned that
overall processing times remain too long, and because the longstanding
government policy has been to detain people for the duration of their
processing, longer processing times translate directly to longer periods in
On this point, Liberty Victoria submitted that:
The primary reason for such lengthy periods of detention is
the time taken to process the protection claims (and subsequent appeals and
reviews) of people arriving by sea. Such people are dealt with according to the
‘non-statutory’ refugee assessment process. Under the refugee status assessment
and independent merits review process, applicants can expect to wait 12 months
from arrival to finalisation of merits review. Most people are detained
throughout the processing of their application for asylum and subsequent
appeals and reviews.
The Committee understands that DIAC, together with ASIO, has implemented
a number of strategies aimed at improving the process, which should result in
shorter processing times and better mental health outcomes for detainees. In
its submission the department points to this refined process and cites improved
processing times in 2011:
The department has significantly reviewed its determination
process as a result of the November 2010 High Court decision. This included
introducing the POD process in March 2011, which resulted in a faster initial assessment
of claims and a more efficient referral process for negatively assessed
Early provision of the latest country information to
migration agents, along with client entry interviews, has assisted agents to
prepare more comprehensive statements of claims at the primary stage.
A significant number of IMA cases were resolved in the
2010-11 program year. In total, 2816 people were released from immigration
detention. Of these, 2738 people were granted Protection visas and 78 were voluntarily
removed from Australia.
The department also has a process known as a Pre-Review
Examination, which was implemented from 22 August 2011 and involves checking if
original decisions on refugee status of IMAs waiting for independent merits
review are still valid and current.
The department also noted that streamlined security checking was helping
to speed up processing times:
In January 2011 the Australian Security Intelligence
Organisation (ASIO) developed an intelligence-led and risk-managed security
assessment framework for IMAs who meet Article 1A of the Refugee Convention. Since
December 2010 only IMAs found to meet Article 1A of the Refugee Convention are
referred to ASIO for security assessment.
This new framework was implemented in March 2011 and enabled ASIO to
prioritise long-standing cases. Around 3000 IMAs found to be refugees were
security assessed under the new framework between mid-March 2011 and 8 August
This ASIO security assessment process is discussed later in this chapter.
Liberty Victoria was not of the view that DIAC's new POD process
represented a significant improvement:
The Department of Immigration and Citizenship...was required
to overhaul its non-statutory process following the High Court’s decision in
M61 v Commonwealth. It has now announced the new ‘protection obligation
evaluation’ process, which commenced in March 2011. It is beyond the scope of
this submission to comment at length on the nature of this process, its
fairness and its similarities with the ‘refugee status assessment’. However,
Liberty notes that the only substantial difference between the new and old procedures
appears to be that, now, unfavourable assessments will be automatically
referred to independent review. It seems likely this will result in only a modest
improvement to the speed of the process.
On 9 April 2010 the Minister for Immigration, Minister for Foreign
Affairs and Minister for Home Affairs announced that the government would not
be processing new asylum claims by Sri Lankan nationals for three months or
those from Afghan nationals for six months.
The policy intention was to ensure that decision-making was based on
up-to-date, accurate realistic information about the country circumstances in
those two places.
The suspensions were not extended. The government lifted the suspension
for Sri Lankan asylum seekers on 6 July 2010 and for Afghan asylum seekers on
30 September 2010.
However, over the course of the suspension the number of asylum seekers,
specifically those from Afghanistan, increased significantly. The processing
freeze also resulted in longer periods of detention for existing detainees.
Identifying asylum seekers
In cases where IMAs are found to be owed protection, those who arrive
with inadequate identification documents may experience added delays due to
concerns about the integrity of their claims. Lack of documentation can also
impede the issuing of travel documents for those subject to deportation, which
in turn increases the time they spend in detention.
When the Committee pursued the issue of inadequate documentation, it was
reassured that the majority of asylum seekers are in a position to provide
adequate identification within two to four weeks of arrival.
Quality of information used in
Country Guidance Notes (CGNs) were introduced by DIAC in 2010 as part of
a range of measures designed to help case officers assess asylum seeker claims:
The CGNs are designed to support robust, transparent and
defensible decision making, regardless of the outcome. The CGNs draw on many
sources including reports by government and non-government organisations, media
outlets and academics. Before they are released, the CGNs are circulated for
comment to key stakeholders including other government agencies such as the
Department of Foreign Affairs and Trade and the Attorney-General’s Department,
as well as nongovernment organisations specialising in asylum and protection
CGNs assist refugee case officers to:
locate and synthesise country of origin information relevant to
assessing claims presented by asylum seekers to Australia
identify relevant issues for consideration
conduct robust and transparent analysis of claims.
Guidance notes currently exist for Afghanistan, Iran, Iraq and Sri
Lanka. All CGNs are updated as required and are available on the DIAC website.
As well as CGNs, refugee case officers routinely use DIAC's country
information database (CISNET) when making their assessments. The database
includes but is not limited to information that is already in the public
domain. Specific documents available on CISNET can be assessed by external
stakeholders under Freedom of Information legislation.
The quality of RSA and IMR decision-making processes has attracted
considerable criticism from a number of quarters. For example:
RSA and IMR decisions are often sloppy and riddled with
errors, such as text from one decision being copied and pasted into another
decision without changing relevant details such as names, dates and places.
It is imperative that a system of quality control be
implemented to oversee the RSA and IMR decision-making processes. At present,
the process is inconsistent and arbitrary, and unduly subject to the personal
whims and fancies of the individual reviewer. This should not be so.
Furthermore, the Committee is aware that detainees have questioned the
accuracy of country information used to inform decision-making, asserting that the
information could be prolonging and even skewing the process as a result.
In a recent ruling, the Federal Magistrates Court of Australia found
that a particular DIAC reviewer appeared to be biased, taking an 'inflexible
and mechanical' approach when reviewing refugee claims by Afghan ethnic Hazara
minorities. The court found that the reviewer did not afford procedural
fairness, in particular:
The reviewer used a repeated formula or template for his
The formula or template was applied inflexibly by the reviewer
in relation to this review of the applicant's claims and the claims of several
other IMR applicants;
The IMR reviewer had used the same formula or template as a
precedent for recommendations in relation to other IMR applications prior to
the applicant's IMR's advisor's submissions.
The Committee notes the differences in assessment processes for onshore
and offshore arrivals seeking asylum, and draws attention to the view of the
UNHCR is of the view that the offshore procedures for
assessing refugee status should be as closely aligned as possible with onshore
procedures and subject to appropriate legal frameworks and accountability, and
due process. The current policy creates a bifurcated system whereby those
arriving by air receive greater procedural safeguards than those arriving by
sea. It is arguable that this is a discriminatory policy that is also at
variance with Australia’s obligations under Article 31(1) of the 1951
Convention relating to the Status of Refugees, which provides that:
The Contracting States shall not impose penalties, on
account of their illegal entry or presence on refugees who, coming directly
from a territory where their life or freedom was threatened in the sense of
article I, enter or are present in their territory without authorization, provided
they present themselves without delay to the authorities and show good cause
for their illegal entry or presence.
The Committee believes that Australia's assessment processes should be
consistent with our obligations under the convention. To this end, the Committee
notes recent changes allowing DIAC to use existing powers more flexibly in
assessing IMA asylum seekers, notably by approving them for bridging visas.
Furthermore, the Committee notes concerns raised by organisations such
as Liberty Victoria about the pre-POD assessment process, the RSA, and the
associated IMR. The Committee is concerned that a significant number of people
in detention are still subject to old processes, simply because they arrived
prior to the new, improved POD process being implemented. The Committee is
troubled by allegations of inconsistency in assessment, and is of the view that
an enhanced quality control system would have the dual benefit of ensuring
probity and easing stakeholder concerns.
The Committee recommends that the Department of Immigration and
Citizenship consider revising and enhancing its system of quality control to
oversee those Refugee Status Assessment and Internal Merits Review processes
Responsibility for determining entry of non-citizens to Australia rests
and DIAC decides whether and when to refer a person applying for a visa to ASIO
for security assessment. The timing of ASIO security assessments of IMAs and of
onshore arrivals seeking protection visas is not mandated by legislation; it is
a matter of government policy.
ASIO informed the Committee that its function in this regard is to 'support
the department of immigration [DIAC] in its management of irregular maritime
ASIO's role and responsibilities are mandated by the Australian Security
Intelligence Organisation Act 1979 (the ASIO Act):
The ASIO Act specifies ASIO's remit as 'security', which it
defines as the protection: of Australia and Australians from espionage,
sabotage, politically motivated violence, promotion of communal violence,
attacks on Australia's defence systems, and foreign interference; and of
Australia's territorial and border integrity from serious threats.
Individuals are assessed against security threats set out in Section 4
of the ASIO Act:
That includes espionage, sabotage, threats to our defence
systems, promotion of communal violence, and protection of border integrity is
the last one. Here, the particularly relevant one is an issue of politically
motivated violence, which, of course, contains within it the whole question of
Following a security assessment, ASIO may provide one of three findings:
non-prejudicial finding, which means there are no security concerns that
ASIO wishes to advise;
a qualified assessment, which means that ASIO has identified information
relevant to security, but is not making a recommendation in relation to the
prescribed administrative action; or
an adverse assessment in which ASIO recommends that a prescribed
administrative action be taken (cancellation of a passport, for example), or
not taken (not issuing access to a security controlled area, for example).
Security assessments are made without regard to social or family
circumstances of the individual being assessed so as to retain objectivity and
ensure that people are assessed exclusively in terms of the potential security
threat they pose. Similarly, character tests are not applied at the time of
Security assessments are not character checks and character
factors such as criminal history, dishonesty or deceit are only relevant if
they have a bearing on security considerations. Character is not itself
sufficient grounds for ASIO to make an adverse security finding. Assessments of
character not relevant to security are required to be made by DIAC.
ASIO only conducts security assessments of asylum seekers able to apply
for protection visas. In the three years 2008-09, 2009-10, 2010-11, ASIO did
not issue a single adverse assessment for onshore arrivals seeking
protection visas. From January 2010 to November 2011, 54 adverse assessments
were issued for offshore arrivals.
Streamlining the assessment process
Prior to December 2010, it was government policy that every IMA would be
subject to a full security assessment upon arrival. This meant that IMAs were
subject to 'parallel processing', that is, both protection determination and
security assessments conducted upon arrival:
Under this policy, ASIO's resources were expended providing
assessments for a large number of individuals who did not require security
assessment because they were not ultimately assessed to be genuine refugees.
That is no longer the case. Following an internal review by ASIO of its
assessment processes in 2010, ASIO implemented changes to '...ensure an
intelligence-led and risk-managed approach to security assessments and security
assessment referral.' To this end, in December 2010 the government decided to abandon
As part of these changes, the Government agreed in December
2010 that only those IMAs who were assessed to be genuine refuges (known as '1A
met' [having met the definition of a refugee under Section 1A of the Refugee
Convention]) would be referred to ASIO for security assessment.
More about the genesis of the new framework was explained by ASIO
Director-General David Irvine in this way:
This referral process has been developed in consultation with
DIAC. What it has done, particularly recently, is enable us to streamline
security checking for what I will call non-complex cases and that it is
commensurate with the level of risk that they present. What it does is allow us
to focus our most intensive security investigation effort into the groups or
individuals of most security concern. The result is, I believe, particularly in
recent times, that our security checking has become more thorough and more
effective. In fact, this is evidenced in the number of adverse security
assessments, which have increased as a result of our ability to focus on these
Separately, ASIO reported improvements as a result of the new framework:
The impact of these measures has been a significant reduction
in the number of IMAs in detention solely awaiting security assessment.
How the triaging process works
When asylum seekers arrive, they are processed by DIAC. Once DIAC
determines that a person qualifies for refugee status, they are measured
against the triaging process. The triaging process is designed to establish,
implement and apply security criteria in order to identify which refugees DIAC
should refer to ASIO for security assessment.
The Committee was told by Mr Irvine that the 80 to 85 per cent of
refugees who are measured against the triaging process then go through required
immigration processes and to a recommendation to the Minister. The 15 to 20 per
cent of refugees that DIAC refers to ASIO go through a more rigorous security
assessment, and, '...if they are found to be non-prejudicial they go back
through the ordinary way.'
Mr Irvine gave an example of this process in operation:
Let us suppose that 116 people arrive. Immigration collects
information about those people relative to their claims, their names, their
personal details and so forth. That is then measured against what we would
regard as indicators for concern, and about 80 per cent to 90 per cent of
people would not trigger those indicators of concern. Then they would then go
on and be processed in the normal way to a decision by the minister that they
be given protected visas. Those people who do trigger concerns—and they might
be, say, 15 per cent or whatever of that 116—are then subject to a more
thoroughgoing ASIO investigation in which we have access to all of the
information that they have provided during the immigration process relative to
their claims, and details about them, and that then forms the basis for our
investigation. Out of that comes one of three results. The first is a
non-prejudicial finding whereby we simply advise the department of immigration
that we have no concerns about that person. The second is that we could issue
what I will call qualified security assessments—and we have issued a number of
these—where we identify that there are some security issues but we do not think
they represents such a risk to security that a visa should not be issued. The
third is where we have identified security issues and assess that person for
whatever security reason to represent a threat to security such that a visa
should not be issued.
Process for in-depth security
ASIO only conducts in-depth security assessments when refugees are
referred for such assessments by DIAC, 'unless something comes to light where
we discover that, for whatever reason, we need to look at something.'
However, although DIAC refers individuals to ASIO for such assessments,
the criteria for referral are set by ASIO. Asked whether DIAC determines what
goes to ASIO for assessment, DIAC Secretary Andrew Metcalfe told the Committee,
'ASIO determines what goes to ASIO.'
In August 2011 Mr Metcalfe gave evidence regarding the application of
ASIO guidelines for referral:
...ASIO has advised us on what it requires to be done and
that is what is being done...We [DIAC officers] are trained and briefed, and we
apply their guidelines as we do around the world on this issue.
The Committee understood from this evidence that DIAC officers are
involved in measuring people against criteria, determined by ASIO, to assess
which cases need to move to a more in-depth security check.
ASIO was also asked about this process, and informed the Committee that
ASIO and DIAC had agreed in May 2011 that all security triaging would be
performed solely by ASIO:
Prior to and following the commencement of the Framework in
April 2011, ASIO provided Department of Immigration and Citizenship (DIAC)
officers with training on the implementation of the security indicators. ASIO
also established appropriate administrative procedures to enable DIAC to
undertake this function as directed by Government in December 2010.
Since June 2011, all triaging pursuant to the framework is
undertaken by ASIO; this includes establishing the security criteria as well as
implementing and applying the criteria for security assessment referral.
However, DIAC may provide feedback on the security indicators within the Framework
The Committee noted from the evidence above that DIAC provides feedback
on security assessments, but it was not entirely clear when and if DIAC
officers make referral assessments without involvement from ASIO. The Committee
was informed by DIAC that the two organisations work closely together in this
regard, and that 'there is a symbiotic interdependency' between them.
The criteria for referral were not disclosed by ASIO for security
The Committee notes evidence that the new intelligence-led assessment
framework established by ASIO in March 2011 has, according to evidence from
DIAC Secretary Andrew Metcalfe, 'vastly reduced the number of people in
The Committee considers this a very positive initiative and commends both ASIO
and DIAC for their work in implementing the new framework.
Process for asylum seekers going
into community detention
The Committee heard that ASIO conducts a particular security assessment for
anyone DIAC decides to release into the community. This assessment, however, is
a much shorter, simpler process than that undertaken in order to issue a
permanent visa. This shorter process is
able to be completed in around 24 hours, and gives ASIO the opportunity to
inform DIAC of any concerns regarding a particular individual before that
individual is placed in community detention.
Furthermore, this shorter assessment is already routinely performed for every
refugee referred to ASIO by DIAC, whether in community detention or a detention
facility, prior to the more in-depth assessment taking place.
The Committee notes that ASIO is not prevented or inhibited in any way
whatsoever from performing in-depth security assessments once people are in
At the moment Immigration is referring to us anyone it wishes
to release into community detention. That does not prejudice in any way our
ability subsequently, once they have been declared 1A met, to conduct a much
different assessment process.
Concerns around security assessments
The Committee took a great deal of evidence on the issue of security
assessments. These can broadly divided into three themes:
1. The length of time taken to
complete security assessments.
2. The need to detain people for
the duration of the assessments.
3. Adverse assessments and the
lack of opportunity for review.
Given the undeniable impact of prolonged detention on mental health and
the serious consequences of an adverse security assessment, the Committee spent
considerable time examining the security assessment process and evaluating the
criticisms levelled at it.
Length of the process
As previously stated, the indeterminate duration of the security
assessment process has been identified as a major contributing factor to
distress among detainees.
The Committee heard that round 80 per cent of ASIO assessments are
completed in less than a week. It can take many months to complete security
assessments for the other 20 per cent of cases which are more complex and
ASIO contended that its security assessments were not the primary factor
in lengthy processing times:
At 12 August 2011, there were around 5,232 irregular maritime
arrivals in immigration detention, of which 448 had been found to be refugees and
were awaiting security assessment – this represented eight per cent of those in
detention at that time.
ASIO also stated:
Processing priorities for security assessments and the order
in which they were progressed were also directed by DIAC. For example, prior to
May 2010 DIAC directed complex, long-term IMA detention cases be afforded lower
priority for security assessment, in order to clear less-complex cases to
address serious accommodation limitations on Christmas Island.
In early 2010, ASIO undertook a review of its internal
assessment process, with a view to streamlining and improving through-put. As a
result, processing times were sped up and additional resources assigned to the
security assessments function. These measures were, however, overtaken by the
rapid increase in IMA arrivals throughout the year.
Evidence provided by the Director-General of ASIO indicated that a small
proportion of cases take significant time to resolve. Mr Irvine spoke of the
number of people in detention awaiting security clearances:
At the moment, we reckon that about 80 per cent of our
assessments are completed in less than a week. The 20 per cent or less of
remaining cases are what we call complex cases, which do require a much longer
time if you are going to do a thorough assessment, basically with cause. At the
moment, out of however many people are currently in detention, in community
detention or are awaiting the conclusion of the process, there are 463 people
awaiting a security assessment from ASIO.
Mr Irvine also confirmed for the Committee that ASIO would be able to
conduct its in-depth security assessments while asylum seekers were in
community detention or on bridging visas while their applications for
protection were being processed.
From the evidence provided by ASIO, the Committee understands that
placing people in community detention following an initial, routine security
check does not prejudice any subsequent, in-depth security assessment ASIO may
provide prior to a permanent visa being issued and a refugee being released
into the community. From this it follows that refugees whose initial security
checks do not produce red flags could be placed in community detention while
their in-depth assessment is underway. The Committee is of the view that asylum
seekers found to be refugees should therefore be taken out of detention
facilities and placed in community detention, unless initial ASIO checks
produce cause for concern.
The Committee recognises that refugees in detention awaiting ASIO
security assessments comprise a relatively small portion of the detention
population. The Committee also recognises that people in this category have not
yet passed the in-depth security assessment required for a permanent visa, but
notes that they have cleared initial security checks, and that placement in
community detention does not prejudice ASIO's ability to conduct in-depth
assessments. The Committee is therefore of the view that refugees who pass
initial security assessments are of sufficiently low risk to national security
to be transferred from detention facilities to community detention while
in-depth security assessments are completed. This would significantly reduce
the amount of time refugees who are not deemed to be a risk to national
security spend confined in detention facilities.
The Committee recommends that the Australian Government move to place
all asylum seekers who are found to be refugees, and who do not trigger any
concerns with the Australian Security Intelligence Organisation following
initial security checks, and subject to an assessment of non-compliance and
risk factors, into community detention while any necessary in-depth security
assessments are conducted.
Adverse assessments and the lack of
opportunity for review
Ultimately, security assessments can determine the outcome of a person's
bid for asylum in Australia. When a person is found to be a refugee but
receives an adverse security assessment, the nature of that assessment (which
is not known to them) in most cases results in the refugee not being able to
gain entry into the Australian community, irrespective of any genuine need for
protection. There are a considerable number of people currently detained in
Australia's immigration detention facilities that have been assessed as genuine
refugees but have nonetheless received adverse security assessments.
Being a signatory to the 1951 Convention Relating to the Status of
Refugees (the Refugee Convention) and its 1967 Protocol Relating to the
Status of Refugees (the Protocol), Australia does not refoule (return) 'people
to countries where they have a well-founded fear of persecution for reasons of
race, nationality, political opinion or membership of a particular social
A consequence of this policy is that refugees who receive adverse security
assessments can be left, effectively, in indefinite detention. Many have been
kept in detention for significant periods of time, with no resolution to their
individual cases in sight. Some have children who were born, or are growing up,
in detention facilities. Adverse security assessments mean people cannot be
released into the community or sent to third countries, but their refugee
status means they cannot be repatriated.
As previously noted, ASIO does not decide what action to take once it
makes an adverse security assessment. ASIO simply provides advice to DIAC,
which acts on an assessment:
The consequences of an ASIO security assessment depend on the
purpose for which it is made, and the relevant legislation, regulation or
policy. In most visa categories, a visa may not be issued (or be cancelled)
where ASIO determines the applicant to be directly or indirectly a risk to
security. The enabling legislation in this instance is the Migration Act
1958, especially the Migration Regulations 1994 and public interest
criterion 4002. ASIO itself is not permitted by the ASIO Act to take any
The Committee notes ASIO's assurance that adverse assessments are not
made easily, or often:
I think it is important to put on the record that ASIO is, in
fact, highly discriminating in the use of such assessments. We issue them only
when we have strong grounds to believe that a person represents a security
threat. That is reflected in the relatively small number of adverse security
assessments issued. Of the nearly 7,000 security assessments that we have
undertaken since January 2010, in relation to IMAs, we have issued only 54
adverse assessments and 19 qualified security assessments. That represents
about one per cent of IMA security assessment cases. We therefore do not take a
decision to issue an adverse security assessment lightly and nor are we
contemptuous of or blase about the human rights of the individuals
involved. We take very seriously our responsibility to behave ethically and
professionally and, obviously, with the utmost probity.
However, refugees with adverse security assessments do not have legal
recourse to a review of this assessment. The impossible situation these people
are in is perhaps one of the greatest challenges currently facing the
immigration detention system. The next section addresses this point.
What to do with the hard cases
Even though the overall detention population decreased during 2011, the
number of asylum seekers held in detention for longer than 12 months saw a
significant increase since September 2010.
The Department informed the Committee that this was in large part due to an
increase in the number of detainees on negative pathways; that is, those who
received negative initial decisions which were subsequently under review.
Negative pathway cases present significant detainee management challenges, and
their growth has contributed significantly to the burden of the detention and
asylum processing systems.
The Department also cited the following exacerbating factors:
the significant and rapid increase in the number of arrivals in
increasing complexity of claims
new cohorts of IMAs with different claims
changes to country of origin information resulting in greater
complexity of assessments for clients seeking asylum
- changing country information also resulted in the temporary
suspension of processing of new asylum claims from people from Sri Lanka and
Afghanistan for periods of three and six months respectively
difficulties in determining clients’ identity and, in some
instances, their country of residence
infrastructure pressures and detention incidents limiting access
to some IDFs
completing third country checks
processing times for completion of security assessments
the need to reconsider a number of client decisions at the
Independent Merits Review stage resulting from the November 2010 High Court
There are currently, broadly speaking, two groups of people in
prolonged detention: confirmed refugees who failed the security test and
therefore cannot be released or returned to their country of origin, and people
who have failed to gain refugee status but still cannot be deported or
repatriated. Although their bids for protection failed before any
security assessment even occurred, these people also effectively find
themselves in indefinite detention.
Non-refugees who cannot be
A growing number of cases have become subject to protracted delays due
to delays in obtaining the documentation necessary for repatriation. The Department
advised the Committee that difficulties in securing travel documents for these
people is likely to become an increasing problem for some cohorts,
'particularly where governments of other countries are reluctant to facilitate
involuntary return of their nationals.'
Similarly protracted delays have been identified in securing return options for
stateless asylum seekers who are not found to be refugees.
Refugees in indefinite detention
In other instances, some refugees are being held in what amounts to indefinite
detention. They have no prospect of release or deportation, and no legal right
to a merit review of their adverse security assessment.
Significant concerns about the ethical and moral implications of issuing a security
assessment which indefinitely removes liberty without disclosing evidence of
the justification for such an assessment were expressed.
The Committee also received comprehensive evidence from legal experts on
the matter. The evidence before the Committee outlines why these legal experts
specialising in security, human rights and refugee law have concluded that
Australia is in breach of its obligations under international law.
Professor Jane McAdam from the Gilbert and Tobin Centre of Public Law,
University of New South Wales (UNSW), unequivocally stated:
Australia’s policy of mandatory detention undeniably violates
this country’s obligations under international law. Countless international and
domestic reports have explained why this is so, including those by the UN Human
Rights Committee, the UN Working Group on Arbitrary Detention, the UN Committee
on the Rights of the Child, the UN Committee Against Torture, the UN Committee
on Economic, Social and Cultural Rights, the UN Special Rapporteur on the Right
of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and
Mental Health; the Australian Human Rights Commission, and many reputable
international and national human rights NGOs.
The Committee was informed that under Australian law only some
individuals have recourse to a review of adverse security assessments:
Qualified or adverse ASIO security assessments may be
appealed to the Administrative Appeals Tribunal (AAT) if the applicant is an
Australian citizen or permanent resident, or holds a special visa or special
purpose visa. Non-Australian citizens who are applying for a visa are entitled
to file an application in the Federal Court or High Court and seek judicial
review in respect of an adverse security assessment. Such a review involves a
court's determining the legality of administrative decisions and does not
extend to the merits.
Professor Ben Saul from the Sydney Centre for International Law explained:
[Refugees] are unable to effectively challenge the adverse
security assessments issued by ASIO, upon which the decisions to refuse them
refugee protection visas and to detain them are based. In particular:
(i) The reasons and evidence for
their adverse security assessments have not been disclosed to them, because
ASIO has decided to refuse any disclosure to them (including even a redacted
(ii) They enjoy no statutory
rights to judicially challenge their assessments under the Australian Security
Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’), or to review the merits
of the assessments before any administrative tribunal;
(iii) Australian courts are not
empowered to review the substantive ‘merits’ of adverse security assessments,
but are confined to limited judicial review of them for errors of law
(iv) Such judicial review at
common law is practically unavailable, because Australia has not
disclosed to them any reasons for, or evidence substantiating, their adverse
security assessments, and they are therefore unable to identify any prima facie
errors of law which would permit them to legitimately commence proceedings,
without risking abuse of the courts’ process and incurring costs orders;
(v) They are unable to compel
disclosure of the reasons for, or evidence substantiating, their adverse
security assessments, both because the courts have accepted that procedural
fairness at common law is reduced to ‘nothingness’ in their circumstances (as
long as the ASIO Director-General has given genuine consideration to whether
disclosure would not prejudice national security), and/or public interest
immunity would preclude disclosure to them anyway; and
(vi) There is no other special judicial
procedure enabling their adverse security assessments, and thus their
detention, to be tested to the standard demanded by article 9(4).
Examples were cited, including:
The ASIO adverse security assessments are a real problem. As
you know, there is no appeal process available. I met a man in Scherger who has
evidence that he showed me. ASIO had issued him with an adverse security
assessment because of his activities in Sri Lanka during a given period of
time. He showed me his documents saying he was not there; he was in a refugee
camp in India. What opportunity he has he got to appeal? We have written to
ASIO and we have written to the IGIS. What opportunity does he have to make a
case? None. Currently there is a 17-year-old boy. He left his country as a
teenager. He is stateless. He is illiterate; he is not even literate. He has
never been to school. He has been assessed as a security risk. We have grave
concerns about the indefinite nature of the detention of people.
Notwithstanding the impact indefinite detention is having on mental
health, there is a genuine national security concern that must be addressed
within the framework of any solution to this seemingly intractable problem. The
Committee noted that those seeking a right of appeal for refugees in indefinite
detention accepted that some people may pose a risk to national security which
must be addressed:
There obviously is always justification for detaining certain
people who may be a national security risk, but in every circumstance like that
the Law Council has always argued that the reaction needs to be proportionate
to the particular threat that that person poses. So that question needs to be
examined in each individual case and there needs to be provision for review of
that if different circumstances come to light, or different information comes
to light. At the moment, there is no opportunity for review of that assessment.
Mr Richard Towle, the Australian representative of the United Nations
Commissioner for Human Rights, spoke of the need, and ways, to balance national
security with fairness:
We have proposed in our submission a practice that is used in
several countries around the world—Canada; New Zealand, my home country; and
the United Kingdom—where a bridge can be built between the security assessment
and the confidentiality surrounding that and the right for someone to know at
least the basic elements of the case against him or her. That is an appropriate
way of finding a balance between often two competing sets of interests.
The Committee pursued the matter with Mr David Irvine, Director-General
of ASIO, who explained that even the criteria—let alone specific reasons in
individual cases—for issuing adverse assessments were not able to be released:
Once the criteria for making assessments are known, then you
will find very quickly that all the applicants will have methods of evading or
avoiding demonstrating those characteristics.
A submission from Professor Saul, from the University of Sydney, contended
that not providing evidence upon which the assessment is based is a violation
of article 9(4) of the International Covenant on Civil and Political Rights (ICCPR):
Where detention is purportedly justified by a State on
security grounds, the requirement of substantive judicial review of the grounds
of detention under article 9(4) necessarily requires a judicial inquiry into
the information or evidence upon which a security assessment is based. Without
access to such evidence, a court is not in a position to effectively review the
substantive grounds of detention.
Currently, however, Professor Saul explained that refugees merely
receive letters 'cast in near-identical terms', which state:
'ASIO assesses [author name] to be directly (or indirectly) a
risk to security, within the meaning of section 4 of the Australian Security
Intelligence Organisation Act 1979.'
The Director-General of ASIO reiterated to the Committee that it was not
ASIO's decision to deny opportunity for review, but that the law as it stands
would only permit Australian citizens and a few select categories of people to
appeal against ASIO assessments. He drew the Committee's attention to the words
of Justice Robert Hope in 1977:
At that time he considered the whole question of appeals
against the ASIO assessment process. He recommended that Australian citizens,
and a few other categories of people, should be allowed to appeal but he
recommended against appeal rights for noncitizens. What he wrote was this:
The claim of noncitizens who are not permanent residents but
who are in Australia to be entitled to such an appeal is difficult to justify,
particularly as they have no general appeal, and I shall recommend that they
shall have no such right.
That was actually taken up in section 36 of the [ASIO] act.
That is the legal basis on which we are operating.
Refugees with adverse assessments
already living in the community
The Committee sought evidence from ASIO concerning precedents for people
with adverse security assessments being released into the community. The Committee
noted one case in which a family had received an adverse assessment in 2002,
but had since been released. The Committee pointed out that in this particular
instance, the asylum seekers in question applied for protection visas onshore
having arrived by plane—that is, they were not IMAs—and sought clarification on
whether refugees deemed to be a potential threat to national security were
being treated differently depending on their means of arrival.
The Committee was informed by the Director-General of ASIO that such
people were subject to a high degree of resource-intensive monitoring:
I am comfortable—that is probably not the word I would
use—with a very small number, but I simply would not have the resources to
provide the level of monitoring and so on that would be required over a long
period of time for anyone with an adverse assessment to be in the community...
...I do not want to go into it too deeply, but the question
then reflects on the levels of quality of monitoring and the quality assurance
that I can give the government in terms of national security considerations. It
is a concern.
The Committee notes that the Council for Immigration Services and Status
had earlier discussed options for undertaking risk analysis of refugees with
negative security assessments:
The Chair raised the idea of using the National Security
Monitor to undertake risk analysis of negative security assessments. He saw as
appropriate the use of an independent person to look at the application of
security assessment of people in detention and the risk they pose.
Minutes from the CISSR meeting in question, however, do not indicate
that a workable way forward was identified:
...[T]he National Security Monitor is a relatively new role
set up under legislation to deal primarily with counter-terrorism issues. It
was not intended to be used in the way suggested by the Council and she would
prefer to speak with Duncan Lewis at Prime Minister and Cabinet (PM&C)
about pursuing this avenue before preparing a proposal for the Minister.
The Committee reiterates its concern regarding the indefinite detention
of refugees with adverse security assessments. While the Committee understands
and appreciates that these questions are necessarily viewed through the prism
of national security, the Committee remains deeply troubled by the fact that those
with adverse assessments cannot obtain evidence-based justifications for their
status, and is mindful that assessments effectively determine people's freedom
and, in many cases, that of their children.
The Committee notes ASIO's view that disclosing reasons behind a
negative assessment to the individuals in question could impact on ASIO's
ability to gather reliable background information. However, the Committee is
not convinced that disclosing relevant information to a security-cleared third
party, or a security-cleared legal representative of the individual, would be
so detrimental as to justify detention without charge for the term of the
individual's natural life.
Furthermore, being aware that a number of refugees have received
permanent visas and are living in the community despite adverse security
assessments, the Committee believes that ASIO is able to discern varying levels
of risk posed by individuals with adverse security assessments.
The Committee is of the view that the government should take immediate
steps to resolve how best to afford refugees an opportunity to appeal the
grounds for their indefinite detention without compromising national security,
and it is this matter to which the chapter now turns.
Establishing a right of review
The Committee explored various ways in which a right of review of
security assessments could be established. In particular, the Committee notes
Professor Ben Saul's reference to Article 9 of the International Covenant
on Civil and Political Rights (ICCPR), whereby decisions to prolong detention
require periodic reviews so that the grounds for detention can be assessed:
Thus, even if detention may be initially justified on
security grounds, article 9 requires periodic review of such grounds and
precludes indefinite detention flowing automatically from the fact of original
grounds justifying detention.
The Committee heard from ASIO that it would work within any legal
framework that was established:
Whether IMAs or any other applicants for visas who are
rejected on security grounds should be afforded merits review is essentially a
matter for the government. Should the government introduce a merits review
process for IMAs who are subject to adverse or qualified assessments, we will
then work within that legal framework.
The Committee asked Mr Irvine whether he could foresee negative implications
arising from that right being established:
I think that is advice I would have to give the government.
But what I would say is: there are a number of factors that you would need to
take into account...What form of merits review would you have? Where would it
go? What protections for other national security considerations would you have,
including as far as I am concerned elements of national interest but also
sources and methods for ASIO? What is the scope of that process? Would merits
review apply to someone who we knocked back as a suspected spy for a foreign
power, someone we gave an adverse assessment to on the basis that we thought
that person might be coming to Australia to pursue the acquisition of parts of
weapons of mass destruction or something like that or to conduct sabotage? How
would the merits review process in those circumstances protect us from a
foreign government probing our sources and methods and so on? You would need to
be very careful about how you applied such a process. Subsequently, there would
be all sorts of resource and other implications, but that would be something
for the government to decide.
The Committee also spoke to Dr Vivienne Thom, Inspector-General of
Intelligence and Security. Dr Thom informed the Committee that of 1111
complaints concerning ASIO's handling of security assessments for visa reasons
in 2010-11, only 27 per cent related to refugee visa applications. The others
were mostly made by offshore visa applicants. The number of complaints issued
by refugees in detention totalled 209, with this figure being comparable to
Dr Thom stressed that her reviews of ASIO processes did not currently extend to
merit reviews of its decisions:
We can look at the process that ASIO has followed, to ensure
that it is lawful and proper. For example, we look to see whether the correct
legal tests and thresholds were satisfied and whether the relevant ASIO officer
was authorised to take action.
Dr Thom discussed the possibility of review rights being extended to
I note that one of my predecessors, Mr Bill Blick, in his
1998-99 annual report recommended to the then Attorney-General that the
government introduce legislation to provide a determinative review process for
refugee applicants where they have valid asylum claims. It is worth noting that
at the time he said it would apply to no more than a handful of cases in any
one year. It should also be remembered that Mr Blick's comments were made 12
years ago, prior to 9-11 and in a different environment. In the 2006-07 annual
report, while not endorsing Mr Blick's recommendation, Mr Ian Carnell said that
he thought it would be worthwhile revisiting this proposal. Mr Carnell also
noted at the time that the number would be very small and hence cost would not
be a barrier. I would comment that I do not disagree with Mr Carnell's
suggestion that perhaps it is appropriate to re-examine this issue. It is a
matter that is attracting major public attention, but it is a complex matter
that will require careful consideration of national security issues and the
rights of individuals, because these decisions do have serious impacts on
The Committee sought many views in looking for a way to balance the
situation of refugees in indefinite detention with national security
considerations. The Law Council of Australia stated:
There are a number of options that are on the table. One is
that the committee could look at removing the current restriction for people to
apply for merits review of their security assessment in the Administrative
Appeals Tribunal. That restriction does not apply to Australian citizens but it
does apply to noncitizens. One recommendation which has been made both by the
Human Rights Commission and the Inspector-General of Intelligence and Security
is that that restriction be removed, so that people can actually test the
merits of that decision.
The United Nations High Commissioner for Human Rights pointed to
appropriate means of finding a balance between the competing interests of
national security and fairness:
We have made some suggestions around that—the possible use of
a special advocate system, the use of redacted evidence that can be looked at,
and the possible lifting of the restriction for refugee or asylum-seeker
claimants to access an appeal mechanism, such as the Administrative Appeals
Tribunal. Those are all areas where we think an appropriate accommodation or
balance can be found between these two difficult sets of issues. I can, of
course, answer more questions about that, if you wish.
The Committee acknowledges widespread support for the establishment of a
merits review process for adverse security assessments. The following sections
outline review mechanisms the Committee has considered. Some of the mechanisms
may be complementary and able to be implemented simultaneously.
Internal ASIO reviews
The Committee considered the potential benefits of requiring ASIO to
conduct periodic reviews of all adverse assessments. The Law Council posited
that a negative assessment was, at present, seemingly permanent:
At the moment, our understanding is that, once you have an
adverse ASIO assessment, you have that virtually for life. There may be
information that can come to light later in the process which would justify a
review of that assessment.
Although ASIO is 'always prepared if a person is referred or additional
information comes to light to revise our judgement,' there is currently no
requirement for to conduct periodic reviews. 
As matters stand reviews are possible but not routine. A case has to be
referred to ASIO by DIAC, or the former has to reach the decision to conduct a
review on the basis of new information that has come to light.
Such reviews have not produced new outcomes in the past. Mr Metcalfe informed
the Committee that he could recall only one case where a revised ASIO
assessment resulted in a different outcome for someone:
The only case that I can recall of a reconsideration which
resulted in a person being treated differently was one of the last [people]
detained on Nauru and who was brought to Australia because of severe mental
illness. In that case, ASIO subsequently revised their opinion and indicated
that the person was not a security concern. Of the current case load, there is
no appeal mechanism against an adverse security assessment of a person who is
not a visa holder, and that of course is a policy matter for the
Expanding the powers of the Federal
Another option considered by the Committee was that of a panel of
security-cleared Federal Court judges reviewing evidence, with refugees subject
to adverse ASIO assessments being represented by security cleared lawyers, otherwise
known as special advocates. Professor Ben Saul explained special advocate
procedure in place in Britain, Europe and Canada:
The function of a special advocate is twofold. Firstly, they
have a role in testing the government’s argument that the evidence or
information cannot be safely disclosed, and then if they win that argument and
the evidence can be safely disclosed to the person, the person has a shot at
testing its merits before the procedure. If it is not admitted, the special
advocate then performs a second function, which is making submissions on behalf
of the client, without instructions from the client, about the reliability of
the evidence on the merits. So at least somebody then is testing the merits of
Were a similar system to be adopted here, one of the key changes be a
broadening of what judges could examine or test. At present, judges may on
occasion look at evidence or lawyers may receive security clearance on an ad
hoc basis. However, judges are currently empowered to look only at errors
of law, not the merits of a case.
The Committee sought views on how well such a system would function in
place of a tribunal, were the law to be changed so that a judge could have
broader powers of testing the merits of a particular security assessment,
whilst satisfying ASIO's concerns about revealing sensitive information.
Professor Saul was of the view that expanding the powers of the Federal Court
in such a way would be possible, and explained different versions of the
You could do it where the person gets to see the information
and test it before that procedure, or you could do it in the more limited
compromised fashion, which is through the special advocate process, which is
what happens in the Special Immigration Appeals Commission in the UK and in a
different manner in Canada. I think the broader point is that it would
certainly enhance public confidence in justice if you had a federal judge
involved in some kind of process like that and it would go a long way towards
meeting Australia’s international human rights obligations to provide a fair
hearing in these cases.
The Gilbert and Tobin Centre of Public Law within the University of New
South Wales Faculty of Law (Gilbert and Tobin) had reservations about such a
In our opinion, the constitutional impediments to reposing in
a Chapter III court the powers to review both for errors of fact and of law
would prevent the Federal Court from exercising a true merits review function
over security assessments made by ASIO. This is an executive function which
cannot be exercised by a court constituted under Chapter III of the
Constitution. As far as we can see, the only ways of having a judicial officer
exercise a merits review function over decisions of ASIO is either to have a
statutory review function granted to a Federal Court judge acting as persona
designata or to have that function granted to a tribunal which has Federal
Court judges as members. We have not been able to come up with an alternative
which is within the Commonwealth’s legislative competence.
Instead, legal experts from Gilbert and Tobin expressed a preference for
making use of an existing tribunal, instead of expanding the roles and
responsibilities of judges:
Our concern with this possibility is more of a practical
nature than a constitutional impediment. There is a practical limit to what
judges (with existing case loads and other responsibilities) can do by way of
investigating the merits of an ASIO decision without the benefit of hearing
argument, both for and against the decision under review. If the investigative
burden of assessing the merits of ASIO determinations falls solely on
individual judges acting outside the scope of their usual duties, it is likely
that the scope for challenging these determinations will be reduced as a matter
of fact. It would be preferable to take advantage of the institutional
advantages of an existing tribunal to perform this task.
Considering the above evidence, the Committee turned to the possibility
of utilising the Administrative Appeals Tribunal for merit reviews of adverse
refugee security assessments.
Administrative Appeals Tribunal
The Committee considered the feasibility of establishing a right of
merit review for refugees through the Administrative Appeals Tribunal (AAT).
Professor Saul reminded the Committee that:
Section 36 of the ASIO Act provides that the procedural
fairness protections of Part IV of the ASIO Act, including merits review before
the Administrative Appeals Tribunal (‘AAT’), do not apply to a person who is
not an Australian citizen or a permanent resident. The authors accordingly are
unable to challenge the merits of their security assessments in the AAT.
Refugees in this situation, the Committee heard, 'are in an incredible
bind', and have no hope except that the ASIO Director-General may change his or
her mind and decide to disclose evidence:
You get no merits tribunal at the outset, because the
Administrative Appeals Tribunal, AAT, review is simply precluded by the ASIO
Act. If it comes before a merits tribunal in the immigration context, no
information is usually before that tribunal. For offshore entry persons you do
not even get that kind of tribunal. If you try to go to the Federal Court,
which you can do in theory, firstly it is impossible to identify jurisdictional
error or errors of law if you have not seen the case against it, so it is very
difficult to commence proceedings. Secondly, if you get in the door you are
usually knocked out for one of two reasons. Firstly, procedural fairness is
diminished in the words of the Full Federal Court in the Leghaei case to
nothingness if the ASIO Director-General considers that it is not safe to
provide any evidence because that would prejudice national security. Secondly,
ASIO can rely on public interest immunity to preclude the admissibility of
evidence in court in any case.
Gilbert and Tobin considered whether the ASIO Act precludes merits
reviews, adding that a mechanism for reviews of ASIO security assessments already
exists within the AAT:
The Australian Security Intelligence Organisation Act 1979
(Cth) provides at section 65(1) that a Minister who has received a security
assessment from ASIO:
may, if satisfied that it is desirable to do so by
reason of special circumstances, require the [AAT] to inquire and report to the
Minister upon any question concerning that action or alleged action of [ASIO],
and may require the [AAT] to review any such assessment or communication and
any information or matter on which any such assessment or communication was
based, and the [AAT] shall comply with the requirement and report its findings
to the Minister.
Gilbert and Tobin pointed to the Security Appeals Division, already in
existence within the AAT and constituted subject to section 21AA of the Administrative
Appeals Tribunal Act 1975 (the AAT Act). The AAT Act purportedly
allows a Tribunal constituting a) and Presidential Member, and b) two other
members (of which one has to possess knowledge or experience relating to the
needs and concerns of immigrants) assigned to the Security Appeals Division to
review adverse assessments made by ASIO.
The Committee took further evidence on the workings of the Security
Appeals Division of the AAT:
The Security Appeals Division conducts its proceedings in
private and may determine who is able to be present during the course of a
hearing, although there is scope for the applicant and / or the applicant’s
representative to be present...The Security Appeals Division’s findings are
able to be appealed to the Federal Court under section 44 of the AAT Act and
are also subject to judicial review for jurisdictional error.
The Committee concludes that mechanisms for merits reviews of adverse
assessments exist and could be used to review such assessments of refugees,
were it not for the stipulations in section 36 of the ASIO Act.
The Committee recognises the need to protect national security, and does
not doubt that ASIO is highly discriminating in the use of adverse security
assessments. However, the Committee resolutely rejects the indefinite detention
of people without any right of appeal. Such detention, effectively condemning refugees
who have not been charged with any crime to detention for the term of their
natural life, runs counter to the basic principles of justice underpinning
Australian society. For this reason, the Committee urges the government to find
a solution which will protect national security whilst also protecting the
rights of refugees under international law.
The Committee notes that ASIO already, on occasion, reviews particular
cases if additional information comes to light and/or on referral from DIAC.
The Committee is of the view that ASIO could partly address community concerns
by establishing periodic reviews of its adverse refugee security assessments.
The Committee did not take evidence on how often such reviews should take
place, and is mindful of the resources necessary for such an undertaking. The Committee
suggests that 12-monthly reviews are a positive starting point.
Fundamentally, however, the Committee believes that extending the right
of merit reviews to refugees with adverse security assessments is the most
straightforward way of protecting against indefinite detention and ensuring
probity. Provisions effectively barring refugees from appealing adverse
security assessments were inserted into the ASIO Act in 1979 and were designed
for a different time, a time when Australia was not grappling with the challenges
presented by large numbers of asylum seekers in detention. Those provisions
have regrettably resulted in some dramatic, potentially life-shattering
consequences for refugees who receive adverse security assessments. The Committee
is firmly of the view that the ASIO Act can be amended to allow for refugees and
other non-citizens currently in indefinite detention to have access to relevant
details of their case without impinging on national security. Merit reviews are
currently available for Australian residents who receive similar adverse
security assessments. On the balance of evidence gathered during the course of
this inquiry, the Committee sees no compelling reason to continue to deny
non-residents the same access to procedural fairness.
The Committee recommends that the Australian Government and the Australian
Security Intelligence Organisation establish and implement periodic, internal
reviews of adverse Australian Security Intelligence Organisation refugee
security assessments commencing as soon as possible.
The Committee recommends that the Australian Security Intelligence Organisation
Act be amended to allow the Security Appeals Division of the Administrative
Appeals Tribunal to review the Australian Security Intelligence Organisation security
assessments of refugees and asylum seekers.
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