Chapter 2 - Processing of protection visa applications
Much of the evidence received by the committee during
the course of this inquiry related to issues to do with the processing of
protection visa applications and that is the focus of this chapter (that is, the
primary assessment of visa applications).
The next chapter examines the processes available for visa applicants to
appeal against an unfavourable decision (that is, the secondary assessment of
The Migration Act (and the associated Migration
Regulations) provides the statutory framework under which DIMA delivers the
Government's migration and humanitarian programs. The Migration Act regulates the travel
to, entry and stay in Australia,
of people who are not Australian citizens.
It establishes a visa regime under which all persons who are not
Australian citizens must hold a valid visa in order to come to and remain in Australia.
Appendix 5 provides general background on the operation
of the Migration Act and the Migration Regulations, particularly in relation to
the lodgement and assessment of protection visa applications, both offshore and
onshore. Appendix 5 also looks at issues raised in other recent reviews of the
Migration Act, and their findings and recommendations.
Issues raised during this inquiry
During the inquiry submitters and witnesses gave
evidence to the committee in relation to a number of issues, including:
inconsistent and arbitrary decision-making by DIMA;
delays in processing applications or advising
applicants of outcomes;
failure to interview protection visa applicants;
use of inadequate and inappropriate interpretation
a lack of appropriate knowledge, information and
questionable quality of information used in
the existence of an adversarial and hostile
culture within DIMA; and
restrictions on applicants' access to legal
advice and assistance.
These issues are discussed in detail below.
Inconsistent and arbitrary decision-making by DIMA
Several submissions criticised the quality of decision-making
by DIMA. Instances were cited of inconsistent and arbitrary outcomes, a lack of
transparency in decisions and the number of successful applications for review as
evidence of poor decision-making.
The Catholic Migrant Centre (CMC) advised the committee
We have serious concerns about the quality of decisions made by DIMA
with respect to protection visa applications. In our experience DIMA rejects a
very high proportion of applications; the reasoning provided in written
decisions is often deficient; and a large proportion of DIMA's decisions are
over-turned on review. 
A Just Australia (AJA) also pointed to the proportion
of DIMA's decisions over-turned on review. It argued that the available data on the processing of
claims 'suggests a systemic failure to properly identify refugees at the initial
case assessment stage by DIMA'. That is:
According to the [2003-2004]
annual report of the Refugee Review Tribunal (RRT), the percentage of cases in
which the original determination was set aside rose from 5.7% in 2002-03 to
12.7% in 2003-04. That is, one in eight asylum seekers appealing a primary
determination was later determined to be a refugee by the Tribunal. Such a high
number of incorrect primary decisions is of grave concern.
focussed on the set-aside rates for decisions on protection visa applications
from particular countries. In its view, these provided evidence that 'the present
system is unable to adequately make primary determinations to grant protection
to those who in need'. It noted, for example, that:
... 89.8% of
primary decisions regarding cases from Afghanistan were overturned on appeal to the RRT (up
from the already high 32.2% in 2002-03). This is a staggering figure and must
surely indicate a fundamental break down in the assessment of asylum seekers
It is also notable that
the RRT set aside rate for primary decisions on cases from reports Iran, Turkey, Egypt and Pakistan was over 50%, much higher than overturn
rates for other countries.
It is disturbing that
the initial system of case assessment could produce such high error rates. It
is also of concern that each of these countries, Afghanistan, Iran, Turkey, Egypt and Pakistan, are predominantly Muslim countries. This
suggests that the Department’s country advice in these cases was lacking at the
time the cases were initially determined, and raises serious questions about the
ability of the Department to properly assess the claims of those from the
DIMA rejected suggestions that officials (and members
of the Refugee Review Tribunal, RRT) have a predisposition to refuse
applications by asylum seekers. DIMA referred to the approval rate of asylum
seeker applications in Nauru
where applications processed by both DIMA officers and UNHCR officers were
'broadly in alignment of each other.' Also cited was DIMA's approval rate at
the primary decision-making stage for unauthorised boat arrivals that came
between 1999 and 2001. DIMA noted that 85 per cent of the Afghani nationals and
89 per cent of the Iraqi nationals in this category were approved at the
primary stage. As a representative from DIMA explained:
I do not think you would have those kinds of rates of acceptance
of people as refugees if there were some predisposition to be refusing cases,
or some negative state of mind. Those rates are very high and, looking at those
particular statistics, I do not know of any other country in the world that
had, for those case loads, such a high positive determination rate at the
primary stage. So I think that, if you look at the big picture indicators, and
whilst there might be dispute and difference of view over cases that were not
found to require protection, I think those approval rates—of 85 or 89 per cent
for those particular nationalities, Afghans and Iraqis, at that stage— indicate
that cases were being looked at in a positive way and with an open mind.
DIMA also stressed that, when considering RRT set-aside
rates, it had to be recognised that the RRT provides applicants with the opportunity
to present new claims and takes into account any changes in country information
that have occurred since DIMA's primary decision.
Seekers Resources Centre (ASRC) advised the committee that:
There are a lot of
cases where people are receiving different outcomes within the department
because different decision makers decide cases in different ways. We referred
to a case where we acted for a sister and two brothers, in which the sister and
one brother got their visas at the department stage but the second brother did
not, even though they had exactly the same case.
Similar concerns were raised by the Refugee Advocacy
Service of South Australia (RASSA). It advised the committee that:
This seems to have been one of the features of the whole detention
regime from day one – the arbitrary nature of the decisions that are made and
the lack of transparency of those decisions. Time and time again we have come
across families where half of the family has been granted a visa and allowed
out of detention and the other half has not. They are in identical
circumstances. There just seems to be no rationale for that. We cannot explain
it. There is no transparency and there is no right to review those decisions.
We encountered that right from the early days at Woomera and it continues to be
a feature of the current regime.
These concerns were echoed by a representative of the
Legal Aid Commission of NSW (LACNSW):
My number one concern, and the concern of many applicants, is
that decision making appears to be quite arbitrary and inconsistent. It is
almost as if applicants feel that their case depends not on the quality of
their application, but on who the decision maker is.
The Albany Community for Afghan Refugees (ACAR) cited a
particular instance involving a group of asylum seekers affected by the '7 day
rule'. The committee was advised
that all, but one, successfully requested the Minister to waive the operation
of the rule and were granted permanent protection visas. In this one case, the
person's route to Australia
was the same as the others and had been undertaken in similar circumstances,
yet he was not offered the chance to appeal to the Minister.
DIMA's response to criticism of arbitrary and
inconsistent decision making was to note that visa applications are processed
on a case-by-case basis on their individual merits in accordance with the
provisions of the Migration Act and Migration Regulations. In assessing
applications, decision-makers performed an 'inquisitorial' – as opposed to an
adversarial – function in actively exploring and testing the applicants'
claims. This, DIMA argued, could result in different outcomes in cases with
similar circumstances. A person may appear to have the same protection claims
as another person, for example, but their profile and risk of persecution may
be quite different. DIMA noted that this can be true of close adult relatives
and can also be the case where family members claim protection at different
times, especially where there have been intervening changes in the situation in
their home country.
DIMA also stressed that no quota for refusal or
approval rates is imposed on protection visa decision-makers and that extensive
processes are complied with to ensure that protection is provided in
appropriate cases. It pointed to requirements to consider all relevant
information; to grant a protection visa where satisfied that statutory criteria
are met; and to provide applicants with an opportunity to comment on any
adverse information that is being considered by the decision-maker.
DIMA noted that Australia’s
protection visa approval rates compare favourably with those in many European
countries. The set-aside rate for its decisions in the RRT also compared
favourably to those for other Australian tribunals. DIMA argued that this
demonstrated that its decision-makers will generally give the applicant the
benefit of the doubt when it comes to establishing the applicant’s identity,
origin and claims, particularly where an applicant lacks any documentation.
DIMA noted that apparently inconsistent outcomes could
arise for many reasons including changing circumstances within, or information
concerning, applicants' countries of origin. While primary decisions to refuse
protection visas are based on an assessment of available country information
and the assessment may be entirely appropriate at the time, changed country
circumstances and new country information can lead to applications being
reassessed and provide different outcomes at the secondary decision-making or
ministerial discretion decision-making stages of the refugee determination
The committee notes DIMA's advice that Australia’s
protection visa approval rates compare favourably with those in many European
countries and also to those for other Australian tribunals. Nonetheless, it
notes with some disquiet the consistently high and increasing proportion of certain visa-related decisions
being set-aside by the review tribunals.
Review Tribunal (MRT), for example, set-aside DIMA's non- protection visa
decisions in 47% of all cases that are brought before it, with the set-aside rate
for decisions relating to certain visa types being consistently above 50% over
the last five years. The MRT's
overall set-aside rate also appears to be rising.
There has also been a significant increase in the Refugee
Review Tribunal's (RRT) overall set-aside rate in 2004-05, with the set-aside
rate for Iraqi and Afghani related decisions in that year being approximately
90 per cent.
The committee acknowledges that both the MRT and the
RRT have indicated that these set-aside rates are explicable in part by the
availability of further evidence and information at the time of review.
Delays in processing applications, advising
decisions and issuing visas
Several submissions expressed concern at the time taken
to process protection visa applications and that people were, as a result,
being unnecessarily detained. Most
submissions on this issue acknowledged that a short period of migration
detention for unlawful arrivals may be necessary to enable security and health
checks to be carried out in relation to a protection visa application. However,
submissions argued the period of migration detention should be finite and
limited and that DIMA should bear the onus of proving that any ongoing
detention is necessary.
LACNSW advised the committee that 'onshore processing
of protection visas can be marred by long delays, especially in the very early
and then the later stages of the determination process.' It argued that these
delays were the result of the time taken by DIMA to allocate case officers to
new protection visa applications and in obtaining ASIO security checks.
The Law Institute of Victoria (LIV) cited
case studies of 'unjustifiable and
unnecessary delays' at the primary application stage and at review. The LIV also highlighted the point
that delays were not restricted to applications lodged in Australia, but also arose in respect of applications
lodged with certain of Australia's s overseas embassies. It referred
to DIMA's Manager’s
Guide to Visa Grant Times by Subclass (June
2005) and argued that it:
... indicates that while a Provisional Spouse (subclass) visa only
takes 10 weeks to process at the London Post, the same visa class takes 51
weeks at the Ho Chi Minh Post in Vietnam.
Likewise, a Prospective Marriage visa at the London Post takes 12 weeks, while
at the Ho Chi Minh it takes 77 weeks.
The Law Society of South Australia (LSSA) noted that 'processing
times for protection visa applications are subject to excessive delay'. It
suggested that this was due in part to the number of primary refusals by DIMA
at the TPV and PPV application stage. It noted that:
For TPV [temporary protection visas] applicants and holders, a
majority of whom originate from Iraq
around 90% of these primary refusals have been overturned by the Refugee Review
The LSSA argued that the temporary protection visa (TPV)
system was itself a cause of undue delay. In its view, the use of the TPV –
which were valid only for 3 years after which applicants had to reapply for
protection – had 'extended processing periods' and 'prolonged decision making
process'. This was because:
Each individual claim must be evaluated at least twice, possibly
more if the decision is appealed, necessitating the inefficient allocation of
Compounding the problem, in the LSSA's view, was DIMA’s
policy that, when assessing a further protection visa application by a TPV
holder, decision-makers had to form a fresh view on whether Australia
has protection obligations to the applicant. The LSSA argued that this policy
approach is both costly and flawed:
The appropriate approach is to continue the prior recognition of
refugee status unless there have been fundamental, stable and durable changes
in the country of origin. Decision makers should be required to determine in
the first instance whether such fundamental and durable changes have occurred,
rather than requiring applicants to again prove themselves to be in need of
The time taken to obtain security or character
clearances for protection visa applicants was cited in submissions as a reason
for significant delay. The LSSA advised the committee that:
DIMA itself admits that this can cause delays of up to a year in
the processing of protection visa applications, adding to the uncertainty and
distress for applicants.
witnesses acknowledged that many of these delays were beyond DIMA's control due
to the need to rely on other agencies or foreign governments to provide the
required information. The LIV, for example, advised the committee that:
DIMA is practically
powerless when it comes to expediting those enquiries. DIMA officers can and
frequently do follow up these matters but because of the apparent lack of
accountability on the part of ASIO those efforts are often not rewarded. We
have been advised by Onshore Protection officers that clients can expect to
wait nine months for security clearances to be completed.
Other witnesses argued that unreasonable delays occurred
even after an applicant had been found to be a refugee and all necessary
documentation and checks had been provided or undergone. The Catholic Migrant
Centre (CMC) said it was their experience that DIMA often takes 'an
unreasonably long time to issue a visa once an applicant has provided all
necessary documentation including a police clearance and health checks.' It advised
the committee that:
It is not unusual for a client to wait over 4 months for a visa
to be issued after providing all necessary documentation. Whilst this may not
sound like a long time, given the clients’ circumstances we submit the delay
was unreasonable. Like some other asylum seekers in the community, they are
forced to survive on charity, unable to work and unable to begin the process of
reuniting with their families who are often also refugees in difficult
The Albany Community for Afghan Refugees (ACAR) referred
to cases where long delays had occurred in issuing permanent protection visas. It
cited one case in which a visa was not received until 19 April 2005 after it had been remitted to DIMA
for reconsideration in late June 2004. It also claimed that an applicant in
another case, who had appeared before the RRT in November 2003, did not receive
a visa until February 2005.
A key concern
in evidence to the committee was the impact that such delays in processing or
granting protection visa applications can have on asylum seekers. It was argued
that such long delays can be devastating on applicants, especially those in
immigration detention. Delays can lead to a sense of insecurity and anxiety
which in turn impacts on mental health. The NSW Legal Aid Commission noted that aplicants often:
... have been 'in limbo'
for years. They often fear that the delay indicates rejection. The delay is
especially stressful for those temporary protection visa holders who have been
separated from their families for many years and who are unable to sponsor them
until a permanent visa is granted.
echoed this concern:
The effect of the combined delays is that protection visa
applicants may remain in limbo for lengthy periods before becoming eligible for
permanent protection. This can take anywhere from the minimum 30 months
envisaged by legislation to as long as 7-8 years in some cases.
Ms Biok of the LACNSW said:
We are also very
concerned that there seem to be quite serious delays in processing. This occurs
even after somebody has had one of the few interviews. It is not unusual for
someone to go before the case officer and be interviewed, the interview to
appear to be favourable and then everything to just seem to slip into a black
hole. When you ring the case officer and say, ‘It has now been three or four
months since the interview – what has happened,’ they say, ‘That application
has gone to Canberra.’ What does that mean? Does it mean that
somebody in Canberra is overlooking the case? Does it mean that
it has gone for a security check? We understand the need for security checks,
but when this delay goes on, in some cases for a year or longer, this creates
concern amongst the applicants. It is very difficult to explain to people why
some people are getting approved quickly and others are not. It is all leading
to this culture of randomness that makes applicants feel very vulnerable and
expressed that the impact of such delays on applicants may be exacerbated by
the restrictions imposed on them by their bridging visas. The committee
received evidence that asylum seekers living in the community pending the
processing of their applications are forced to rely on charity for their day-to-day
needs due to the 'no-work' conditions imposed by their bridging visas. Submissions argued that such
restrictions not only cause hardship and further distress, but lead to
'depression and loss of self esteem because they are unable to participate in
society through work' and 'impedes
any attempt to build a new life.'
In this context, the policy and legislative changes announced
by the Government in 2005 in respect to faster visa processing times were
welcomed by many submitters. In September 2005, the Government introduced the
Migration and Ombudsman Legislation Amendment Bill 2005 to, among other things,
introduce 90 day processing time limits for the determination of protection visa
applications and for the completion of reviews by the RRT.
However, the efficacy of these new measures is open to
question. The Bills Digest noted that:
In relation to the 90-day processing times, a decision is not
rendered invalid even if it is made after 90 days. The question [therefore] arises
whether the requirement to report to Parliament on ‘late’ decisions will
provide enough of a sanction to compel adherence to this time limit.
Another issue is the time at which the 90 day period
starts. The committee understands that the commencement of the 90 day period is
to be prescribed by regulations under the new provisions. Draft regulations,
which have been published, deal with the commencement dates for various
categories of protection visas. For example, the 90 day period for certain
visas types would only commence after 30 months has expired, unless the
Minister has specified a shorter period at her discretion.
One concern is that the imposition of time limits will
not of itself address the underlying causes of delay. The LSSA noted:
...they do not address the policy differences which contribute to
the high percentage of cases overturned on appeal, and therefore do not address
some of the most significant reasons for delays.
DIMA's response to the above concerns was to advise the
is one of the few Western countries with no protection visa processing backlog.
As noted in the DIMA Annual Report 2004-05, 79 percent of protection visa
applications from applicants not in detention were finalised within 90 days of
lodgement, and 83 percent of protection visa applications from applicants in
detention were finalised within 42 days of lodgement. Australia
also compares very favourably with the processing times in other countries with
asylum seeker caseloads. For example, in New
Zealand processing took an average of six
months in 2004-05. In Canada
the average processing time was 14.2 months in 2003-04.
DIMA noted that the Government had acted in 2005 to introduce
'measures to ensure that immigration policy is administered with greater
flexibility and fairness, and in a timely manner'. These measures had greatly reduced the
existing case load of protection visa applications:
550 initial protection visa applications with
the Department remained to be finalised as at 18 November 2005. Of these, 115
applications were over 90 days old with finalisation of some being delayed by
factors beyond the Department’s control;
270 applications by TPV holders for further
protection visas remained on hand as at 31 October 2005 because they were
awaiting security assessments or required further information from external
sources, meaning that a final decision was not possible.
DIMA also stressed that it is working closely with
other agencies to minimise the time taken for external assessments and checks.
The committee shares the concerns of many submitters
and witnesses to this inquiry at the impact of delay on visa applicants,
particularly protection visa applicants and especially those being held in
immigration detention. For that reason, it welcomes recent Government moves to
introduce a 90 day limit during which the Minister or her delegate is required
to decide applications for protection visas (and to require the RRT to decide
applications for review of protection visa decisions within 90 days).
However, it is apparent that a failure to comply with
this 90 day time limit does not attract any sanction other than the requirement
to report to Parliament. The committee notes concerns that statements tabled in
the Parliament by Immigration Ministers have often lacked sufficient detail to
enable any meaningful scrutiny of departmental or ministerial decisions or
It is too early to assess whether the introduction of a
90 day processing period is sufficient to address the concerns of undue delays
in the processing of visa applications. The committee will monitor the impact
of the new time limits with interest.
The committee recommends that the Minister ensure all
statements tabled in Parliament that relate to protection visa applications and
review applications that take longer than 90 days to decide contain sufficient
information to ensure effective parliamentary scrutiny of the visa and review
Failure to interview protection
The committee received evidence critical of the low
number of interviews conducted by DIMA at the primary or initial determination
stage. This practice, it was argued, has led to meritorious cases being refused
visas on cursory evidence.
The committee understands that, following
administrative reforms introduced by the department in 1996, most decisions are
now made 'on the papers'. This is
permitted by the Migration Act which, while requiring DIMA decision-makers to
consider information provided in an application, permits a decision to be made
without 'giving the applicant an opportunity to make oral or written
The NSW Legal Aid Commission advised the committee
that, in its experience, most offshore humanitarian applications and onshore
protection visa applications are decided without the applicant being
interviewed. The Commission argued
...the paper-based processing of protection visa applications
represents a significant deviation from accepted standards of procedural
fairness and natural justice. It breaches the spirit of justice and the
determination criteria suggested in the Handbook
on Procedures and Criteria for Determining Refugee Status published by the
United Nations High Commissioner for Refugees.
This view was shared by the Catholic Migrant Centre,
...a fair and ethical approach to determining protection visa
applications also requires that each applicant is interviewed and given the
opportunity to answer the decision makers concerns about their case. 
A particular concern was that paper based
decision-making disadvantages those applicants who are from a non-English
speaking background and who may not have received assistance with their applications.
The NSW Legal Aid Commission noted that offshore or unrepresented applicants
regularly provide cursory answers or fail to submit supporting statements. The
Commission also pointed out that onshore applications may be refused even
though the applicant has advised that key documents are being obtained and/or
translated, or that a comprehensive statement is being completed. It argued
that this, coupled with DIMA's failure to seek or await further information,
... offshore humanitarian visa applicants are often refused
without interview or written request for further information. ... Similarly,
onshore applicants for protection visas are rarely interviewed or asked to
comment on adverse information, and decisions can be made soon after
It was put to the committee that provision of more
information (for example, on the relevant application forms) and an opportunity
for applicants to put forward their case at an interview could improve the
quality of decision-making:
As there is no
requirement to give reasons for refusals of offshore applications under Migration Act ..., rejections regularly
include only a photocopy of the visa criteria with a mark next to the
supposedly unmet criteria. .... Many members of refugee communities in Australia
are accustomed to receiving such rejection notifications for their relatives
overseas. They respond by lodging repeat applications without being aware of
how further information could advance their case. Given that offshore
humanitarian visa classes attract a large volume of applicants, it would assist
with fair and quick processing if application forms and procedures were more
comprehensive and referred to the visa criteria. It would expedite the fair
processing of offshore visas if applicants were asked to submit supporting
information and were interviewed.
The NSW Legal Aid Commission queried whether DIMA
officials 'have been encouraged to give priority to meeting Departmental
performance indicators for finalising applications, rather than affording
justice to the applicants'. It stated:
There is no doubt that this practice has enabled more expeditious
primary decision making. However, it is our view that the drive to greater
efficiency has been accompanied by a reduction in the quality of decision
making. For example, credibility is
often the basis of the rejection even when the applicant has not been given an
opportunity to respond in an interview to any allegations of inconsistency or
The consequences of paper based decision-making was
also highlighted by the Catholic Migrant Centre, which advised the committee
Almost all of our clients (with one exception) who were rejected
by DIMA without interviews were later found to be genuine refugees.
In light of the above, it was recommended that the
policy of rarely interviewing applicants for initial protection visas be
reconsidered. Doing so, it was argued, would assist in a proper and thorough
consideration of an applicant’s claims at the initial decision-making stage. It
would also alleviate the pressure upon the RRT by reducing the prospect of
appeals, especially those involving credibility findings based upon limited
The Catholic Migrant Centre recommended that, if
mandatory interviews are not introduced, then:
DIMA [should] be required to give
the applicant at least 2 weeks notice of the intention to make a negative
decision with respect to an application. In addition, DIMA provide a summary of
its reasons for its intention to make a negative decision and the applicant be
given the opportunity to respond.
This committee made a similar recommendation in 2000. It did so after receiving evidence
similar to that outlined above. The Government's response to that
An interview is only one of a number of assessment tools
available to case officers and is not always necessary. Whether an interview
takes place or not, applicants are always informed of adverse information, and
decision records, including the reasons for the decision, are always provided.
A similar sentiment was expressed by DIMA during this
inquiry. It noted that there is no legislative requirement that protection visa
applicants be interviewed. Rather decisions about whether to interview and what
matters to cover at interview are left to the DIMA decision-maker. This reflects
the view that an interview is just one avenue available to decision-makers to
test claims, gather information or put adverse information to clients. DIMA
also advised that it is possible in many cases to reach decisions without
interview because of the nature of claims made, the country of nationality
concerned and the country information relevant to these claims. It noted that
this possibility is made clear to applicants on the relevant application forms.
The Committee considers that there is considerable benefit
in interviewing protection visa applicants. An interview not only ensures
applicants are given the best opportunity to put forward their case, but would also
ensure that case officers fully appreciate the nature of the claims being made.
It is also likely to lead to a reduction in the number of RRT applications if
applicants believe they have been given every opportunity to put forward their
case. On the other hand, the committee is aware of the significant number of
offshore protection visa applications
that must be managed by DIMA. It is also conscious of the need for flexibility
in managing the onshore protection visa caseload.
The committee sees considerable merit in applicants
being given an opportunity to comment in cases where decision-makers consider
their application should not proceed to interview stage. It also notes that the
statutory requirement to provide applicants with an opportunity to comment on
'adverse information' is subject to certain exceptions.
The committee recommends that the Migration Act be
amended to require that onshore protection visa applicants be given at least two
weeks notice of the intention to make a negative decision with respect to an
application. In addition, it is recommended that DIMA provide a summary of its
reasons for its intention to make a negative decision and the applicant be
given the opportunity to respond.
The committee recommends that DIMA conduct an interview
with all onshore applicants unless they are to be approved on the papers.
The committee recommends that DIMA review the application
forms and information sheets provided to offshore humanitarian visa applicants
to ensure that they provide applicants with comprehensive and detailed
information on the relevant visa criteria and assessment process.
Use of inadequate and inappropriate
Several submissions were critical not only of the level
and quality of interpreters provided by DIMA (and the RRT) to assist applicants but also of the appropriateness of
certain interpreters, because of their cultural and ethnic background. As examples of inappropriate
interpreters being engaged, it was pointed out that Hazara asylum seekers had
been provided with Pashtun interpreters, even though these two ethnic groups
are known to be hostile towards each other; while in the case of an Iranian
Farsi applicant, the interpreter provided spoke Farsi as a second language with
their mother tongue being Arabic.
It is clear that incorrect interpretation, whether
intentional or otherwise, can be critical, if not fatal, to an applicant's
claim and can lead to persons being detained unnecessarily. Evidence to the
committee included claims from applicants that, because interpreters had
incorrectly interpreted or misrepresented what they said, either at their
unauthorised arrivals interview or their primary interview, this was used to
discredit them in subsequent interviews and in RRT hearings when they have
sought to correct the misinterpretation.
Similar concerns were raised in relation to the use of
interpreters by DIMA in the committee's inquiry in 2000. At that time, the
committee considered that qualified interpreters' training should ensure they
act professionally, and the committee refrained from making any
The committee notes that DIMA's latest annual report
points to difficulties in recruiting accredited interpreters required for new
and emerging languages in Australia (such as African languages) brought about
by the changing nature of Australia's migrant and refugee intake. DIMA also
reported on 'the continuing low demand for onsite interpreters associated with
processing of applications for protection by asylum seekers' and a move towards
more cost effective telephone interpretation services.
Concerns over interpreters also arose during the recent
inquiry by the Senate Foreign Affairs Defence and Trade Committee into the
circumstances surrounding the removal, search for and discovery of Ms
Vivian Solon. That committee received evidence that
DIMA relied on its employees to act as interpreters and that DIMA was unaware
of whether the person concerned was an accredited interpreter. This was despite
the relevant Migration Series Instruction (MSI) stipulating that, whenever the
person has difficulty understanding and/or speaking English, DIMA officers were
to seek the assistance of a qualified interpreter (such as from the
Department's Telephone and Interpreting Service). The Senate Foreign Affairs
Defence and Trade Committee considered that, to ensure objectivity, fairness
and avoid any conflict of interest, independent and accredited interpreters
must be used and DIMA employees should only be used in exceptional
circumstances. It recommended that DIMA officers be reminded of this
The committee is aware that DIMA through its
Translating and Interpreting Service (TIS) provides an interpreting service to
eligible individuals and organisations.
In light of the continuing problems with interpreters,
it is the committee's view that every effort must be made to ensure that,
whenever required, appropriately qualified and culturally acceptable
interpreters are used to assist applicants in their visa applications. The
committee also notes that shortages of interpreters in particular languages or
regions are a continuing challenge for DIMA.
The committee endorses all the recommendations
concerning interpretation services made by the Select Committee on Ministerial
Discretion and, more recently, by the Senate Foreign Affairs and Trade
The committee recommends that the Government make
training of interpreters a priority and establish a planned, comprehensive
training programme to address the development and ongoing needs of interpreting
services provided by or on behalf of DIMA.
The committee recommends that a quality assurance
process be developed and implemented to monitor and to report to Parliament
through the Department's Annual Report on the quality of interpreting services
provided by or on behalf of DIMA (including the RRT and MRT).
Lack of appropriate knowledge,
information and training
Evidence to this inquiry suggested that a lack of
appropriate knowledge and training among DIMA officers may be a reason for the
poor quality of decision making outlined above. This extended to an apparent
lack of knowledge of the applicable law as well as a failure to appreciate and
understand the cultures or the countries from which many applicants come.
Submissions pointed to a lack of cross-cultural
training and knowledge of other mores and values of the cultures concerned and
even current events within DIMA. It
was also put to the committee that a lack of adequate training of DIMA staff
may account for the cultural and attitudinal problems within DIMA that were
identified in the Palmer report and highlighted
in some submissions to this inquiry.
Ms Marion Le, a migration agent, emphasised the lack of
cultural training and awareness of many DIMA officers in her evidence to the
...many DIMA officers ... lack formal qualifications and training. I
would say that very few departmental officers who are dealing with refugees
have any knowledge of the history, the culture or the countries from which
those people come. They do an interview with them and there is often total ignorance
on the part of the interviewing officer as to what situation these people have
come from or, as I say, the historical context from which they have come.
Her concern was echoed by Ms Claire
The case officers do not have the appropriate training and
understanding. There are stories all the time about particular case officers
who have a consistently ignorant approach to a particular country or regional
application – for example, a case officer saying to a detainee: ‘Well, I don’t
believe you were locked up for nothing. What government would waste money
locking someone up for no reason?’ That is a complete lack of understanding of
what happens in Iran.
representatives pointed out that:
It is our experience
that some delegates appear to be unaware of certain aspects of the regulations
and also differ greatly in their application of them in terms of things like
preparation for interviews. When applicants are being interviewed there is
great variation in the degree of preparedness shown by the delegates.
The Catholic Migrant Centre argued that the quality of DIMA
decision making could be improved by:
...providing officers with thorough and extensive training in
Migration and Refugee Law; interviewing skills; the manner in which evidence
(including country information) should be used in assessment of a claim; and
Kelly of Macquarie
University's Division of Law
pointed to the need for basic and ongoing training of DIMA officers in:
...the constitutional and legislative bases of their powers, their
legal responsibilities and obligations, and the approach of the federal courts
to interpreting the provisions of the Act relevant to officers’ areas of
noted that the length, complexity, and multifaceted nature of the Migration Act
poses particular problems for DIMA decision-makers and applicants alike:
The Act and Regulations, together with the various Guidelines
and Directions, are huge and complex – one doubts if any single person could
ever be familiar with the Act, its interpretation, and its application as a
whole. The Palmer Report noted the need for greater training of staff in their
legal obligations (in that instance, with respect to compliance and detention
powers) under the Act – the necessity for this is unsurprising given the
frequent changes to the Act, the unremitting judicial interpretation of it, the
changes in judicial interpretation, and the high volume of cases and detailed
work involved in administering the Act.
Other commentators noted that:
... the Migration Act is bloated and legalistic, and even a well-educated
lay person would find it difficult to wade through its Byzantine regulations.
People with limited English or a disability are incapable of understanding
their basic rights under it, let alone its arcane provisions and regulations.
After the string of recent errors there should be greater review and increased
access to legal advice, not less.
Associate Professor Kneebone
of Monash University's
Faculty of Law advised the committee that the current state of the Migration
Act posed grave problems for its administration and operation due to 'its lack
of guidance on basic, principles, objectives and definitions'. She noted that :
The Migration Act in its current form (more than 600 provisions
and nearly 600 pages in printed length) arose from substantial amendments
dating from the period 1989 onwards and numerous subsequent piecemeal
amendments. It has not been subject to major overhaul or review since that
time. It has been amended from time to time to insert provisions to deal with
new crisis ... it is time for major overhaul of its scope and focus.
The Australian Catholic Bishops Conference expressed
the view that the increasingly complexity of the Migration Act was a deterrent
for potential migrants:
Overall migration processing has become increasingly complex for
staff, for agencies involved in assisting migrants such as the Church and, most
importantly, for individuals seeking to migrate to Australia.
A matter of strategic importance to Australia
is whether the complexity of migration processing is having an adverse impact
on the long term future of Australia.
There is substantial anecdotal evidence that people, who could make a positive
contribution to Australia,
are often deterred by the complexity of the process and thus seek to migrate to
other countries who also covet their skills. The underlying cause of many of
the problems of complexity in the processing and assessment of visa
applications appears to be similar to the cause of the problems in detention
facilities. That is, ad hoc solutions to immediate problems or processes that
accord with a particular political or philosophical approach, have been
implemented without consideration of the long term or down stream consequences
of such changes. The results have been increasing complexity of administration
and adverse operational impacts on other parties.
The LIV shared this concern, citing a range of problems
with the process for applying for and assessment of business migration visas.
DIMA acknowledged that the legislation was complex. It
advised that this complexity reflected the multiplicity of goals and objectives
that the Act must meet.
It was suggested that, because of the legislation's
increasing complexity, decision-makers now relied more on departmental policy
documents and guidelines than the legislation itself to determine claims. As
the LIV stated:
It is the experience of
LIV members practising in the area of migration law that migration policy, as
set out in the Procedures Advice Manual (PAM), which can be narrower than the Migration Regulations, is
applied more readily than the law by DIMA decision makers. The complexity of
the migration scheme is such that many decision makers, at both the DIMA and
Tribunal level, are now reading and applying policy in preference to the wording
of the Migration Regulations.
The LIV expressed the following concern with this
While it is accepted
that policy is necessary to assist decision makers, it should not restrict them
in their primary duty to make lawful decisions under the Migration Act. ... There
are [also] a number of examples where the policy provisions, as set out in PAM and the Migration Series Instruction (MSI), are in conflict or severely
restrict the meaning of the Migration Regulations. This means that many
applications though lawful, are less likely to be successful. 
In light of such problems, the Catholic Migrant Centre
recommended the introduction of:
... a system whereby teams of case officers work under the
supervision of a person with legal training / detailed knowledge of migration
law / a lot of experience in assessing protection visa claims. That person
would be available to assist case officers throughout the assessment process
and should read and critique all decisions before they are finalised.
The need for improved supervision was also raised by
other submissions and witnesses. The Uniting
Church, for example, suggested that
improved systems of supervision, debriefing and training were required to
reduce staff turn-over and improve staff morale within DIMA. High staff turnover compounded the
problems in ensuring adequate knowledge and understanding among case officers:
Apart from high level positions, most DIMA staff are required to
frequently change their roles within the Department. This is particularly so in
the Compliance Unit, with some staff in the Unit as little as 3-6 months. It
has been argued that the high turn-over is to ensure staff become skilled in
various parts of the Department, however, we find that this approach lowers the
quality of service and heightens the possibility of mistakes being made. This
is made worse by the lack of training, inadequate handover and oversight as
highlighted in the Palmer Report.
Staff turnover within DIMA and the consequent need to
ensure case officers understand both the applicable law and how to deal
appropriately with specific groups of people was also raised by the NSW Legal
Dealing with protection visa applicants is quite different from
dealing with student visa applicants, so they need special training. That used
to occur in the past. People who were refugee advocates, people like us and
people like the Refugee Advice and Casework Service, would go and give training
sessions to new DIMA case officers as they went into the onshore protection
strand. That has not happened for a long time.
Similar concerns over the inadequacy of knowledge and
training within DIMA were raised during the committee's inquiry in 2000. The
committee at that time recognised that it is crucial that decision-makers have
the necessary skills, knowledge and ability and the necessary personal
attributes to perform the decision-making function. The committee therefore
recommended that primary decision-makers have additional specialist training,
both before and during their tenure and that training be obtained from a
cross-section of sources, including the legal profession, European judicial
specialists and other government and non-government organisations.
The Government's response to the above in 2001 provided
the following assurance:
Case officers receive all necessary training to properly carry
out their decision-making function. This includes training by DIMA legal
specialists, torture and trauma treatment service providers and community
groups. Refresher courses on specific issues are conducted when necessary.
DIMA provided a similar assurance to this inquiry. Its response
to allegations that decision makers were onadequately trained or fully aware of
the situations in applicants' country of origin or that there was a
departmental bias towards rejection of applications was to stress the
Departmental decision makers were effectively
supported through the existence of detailed Manuals, the Legend system and to a
comprehensive country information and research
capability though the CIS;
Protection visa decision making was undertaken
by senior officers who had undertaken comprehensive induction training and
regular refreshing training;
Australia's protection visa approval rates
compared favourably with many European countries;
The set-aside rate for its primary decisions in
the RRT was relatively low when compared to the set-aside rates of other
Australian review tribunals.
The ANAO also advised the committee that it considered
the training provided to DIMA officers to be reasonably sound. This advice was based on an ANAO
audit in 2004 of onshore processing of protection visa applications. It
...the training needs of decision-makers processing PV's are
addressed [by DIMA's] Training and Coordination Committee. In addition, an
Onshore Protection Training Strategy has been developed that identifies
training that has been undertaken, identifies the core competencies required by
decision-makers, identifies stakeholders and provides a plan for the
implementation of future training programs.
The committee notes that an earlier ANAO audit report
appeared much less sanguine about the adequacy of training within DIMA. An
audit in 2002 of work force planning within DIMA had concluded that:
DIMA is not able to monitor its learning and development
programs to determine if they are working in practice, as well as contributing
cost-effectively to desired outputs and outcomes. ... The audit found that
systematic learning is not widely promoted within the department despite the
need for it, given the diversity of its portfolio interests, complex governing
legislation, and the rate at which new and inexperienced staff are promoted
into demanding roles and duties. The links between existing learning and
development arrangements and the department’s goals are not articulated. There
are few reports generated to inform management of the success of training
activities and initiatives. There is potential in the longer term, for the lack
of attention in the area of learning and development to diminish the
workforce’s ability to perform effectively.
The same audit also highlighted the crucial need for
training within DIMA given its rapidly changing workforce:
In response to rising workloads, the department has increased
the size of the workforce by about 10 per cent in each of the past two years,
through external recruitment. The rate of external recruiting, internal
promotion and transfer activity in DIMA has also increased over the last two
years to the point where some 40 per cent of the workforce have been either
recruited from outside the department, or promoted or transferred in or out of
a position within the department in the last 12 months. This rate of activity
has significant implications for the cost and effectiveness of training and for
the quality of work outputs of significant numbers of people who are moving
between, or are new to, their roles. In addition, staff recruited at the lowest
levels have in many cases been promoted rapidly. This indicates that the work
level standards are in need of review and recruitment has not taken place at an
These concerns appear to have been borne out by the
findings of the Palmer report and the Comrie
report. Notwithstanding the findings of the ANAO in 2004 and DIMA's
above-mentioned assurances, the Government has acknowledged that a strong theme
in the Palmer report was the need for
substantially enhanced training for staff undertaking operational roles and
exercising powers under the Migration Act, and the need for a substantial
investment in appropriate systems and other support for their activities.
To this end, measures announced by Government following
the Palmer report's release include:
Establishment of a national training branch
within DIMA and the appointment of a National Training Manager.
Reviews of departmental training and skills
Implementation of a National Training Strategy
A national executive leadership programme, which
commenced in September 2005, for all executive level staff in DIMA. Management
training for APS staff and training in a range of departmental systems, records
management, visa cancellation, and name searching to be rolled out by the end
A records management improvement plan, with
strong training component (to be delivered to all staff undertaking case and client
A review of DIMA State and Territory Office
arrangements, with a particular emphasis on appropriate funding levels for
operations, training and support.
A review and reissue of DIMA's Migration Series
Instructions (MSIs). The MSIs are an important part of the support provided to
staff in the conduct of their responsibilities and a component of departmental
Improved governance arrangements within DIMA,
including a high level Values and Standards Committee with external
representation to ensure that the actions and decisions of DIMA officials comply
with community expectations and Australian Public Service values.
Establishment of a College of Immigration Border
Security and Compliance to deliver
comprehensive, tailored operational training for DIMA officers, with an
emphasis on quality assurance and decision making. All new compliance
and detention staff will be required to complete a 15 week induction training
programme at the College with five streams available: compliance,
investigation, detention management, border management and immigration
intelligence. Existing staff will be required to complete regular refresher
training each year.
On the issue of training, DIMA advised the committee
that it has progressively been moving to a more structured approach to training
since a National Training Summit in 2003 identified five national training priorities:
induction, client contact, lawful decision-making, supervision/leadership, and
contract management. Training packages have been developed and delivered across
each of these priority areas. The
above-mentioned measures will build on this approach. In particular, the new National
Training Manager will head a team which will provide:
strategic oversight of learning and development
across DIMA including the development and implementation of a national training
high-quality corporate training for the
enhanced coordination of training across DIMA;
innovative development programs to build
leadership and management capacity: these courses have already commenced and
will continue on a regular basis so that all DIMA executive level staff will
attend leadership training within the coming 18 months;
a range of staff development programs; and
regular evaluation and reporting on the outcomes
of national training programs.
The committee commends the Government and DIMA on
taking this action. However, it notes the concern of some submitters and
witnesses that the emphasis of its response appears to be more on training in the areas of compliance and
detention. It was put to the committee that the above reforms provide an
opportunity to ensure that a comprehensive
and coordinated approach is also
taken within DIMA for training in other areas of the department, particularly
refugee status determination. The
above reforms were also seen as an opportunity for DIMA to work productively
with external stakeholders. The Uniting
Church, for example, recommended:
The development and implementation of new training programs for
compliance staff and management, and
other sections of the Department, which include the opportunity for
experienced agencies like the Victorian Foundation for the Survivors of
Torture, Hotham Mission, and the Red Cross, to provide input and training on
sensitive issues related to persons seeking protection. These include trauma,
gender, culture, child protection, and mental, physical and welfare issues. [emphasis added]
2.103 UNHCR advised the committee that it had:
... been asked already to
assist with training of DIMA staff. We have done that in the past and we will
do it again, starting at the end of this month. We welcome this dialogue that
we hope will lead to a detailed analysis of the existing guidelines to identify
areas in which they might be improved.
UNHCR also advised the committee that it had offered to
assist DIMA with a rewrite or review of the relevant guidelines. In its view, a
review of the guidelines available to DIMA decision-makers was crucial as:
... the first instance
determination is all-important if you want to avoid future embarrassment. The
better the quality and information sharing that takes place during and after that
first instance determination the better the system will function as a whole. So
the guidelines that are provided to those members of the Australian authorities
charged with undertaking that first instance determination, and the guidelines
that are provided to assist them to make determinations further downstream, are
extremely important in the effectiveness of the system. If the guidelines can
be strengthened, ... then they will indeed result in fewer situations of further
suffering and fewer errors.
The committee appreciates that decision-making in this
area is an inevitably difficult task, given the inherent problems in assessing
the merits of applications for visas (especially protection visas) and the size
and complexity of the Migration Act and its associated Regulations. The committee
also commends the Government for its moves to improve the systems for training
departmental staff, in the light of the Palmer
and Comrie reports.
On the evidence presented to this and earlier reviews,
it is clear that, despite efforts to improve the skills of decision makers, and
the uniformity of their decisions, there is room for further improvement. In
particular, the committee considers that the sheer complexity of the legal
framework acts as a powerful impediment to best practice. While other
legislation – perhaps most notably the Tax Acts – are similarly complex, the
negative effects of this complexity are magnified by the more limited
professional assistance available to applicants and the frequent difficulties
associated with producing evidence.
For this reason, the committee believes that it is an
appropriate time for a bottom-up review of the Migration Act, with the
objective of producing a more concise and comprehensible legislative regime,
recognising that these attributes contribute to a more easily administered and
The committee further considers that recent reforms
exhibit a skewed emphasis towards compliance and detention. Accordingly, the committee
recommends an equal emphasis be given to improving systems and training aimed
at improving the decision-making in visa application determinations.
The committee recommends that the Migration Act and
Regulations be reviewed as a matter of priority, with a view to establishing an
immigration regime that is fair, transparent and legally defensible as well as
more concise and comprehensible.
The committee recommends that the review of the Migration
Act and Regulations be undertaken by the Australian Law Reform Commission.
The committee recommends that the review of the
Migration Series Instructions, announced as part of the Government's response
to the Palmer report, ensure that the
Instructions accurately and clearly reflect and comply with the Migration Act
committee recommends that DIMA's approach to case management of protection visa
applications be reviewed.
The committee recommends that, as part of its new National
Training Strategy, DIMA review the training methods and approaches for officers
responsible for the processing and assessment of protection visa applications,
with a view to establishing a planned and structured comprehensive training
committee recommends that the Government expand the responsibilities of its
recently established College of Immigration
Border Security and Compliance to include provision of training for officials responsible for the
processing and assessment of protection visa applications.
The committee recommends that the ANAO commit to a
series of rolling audits to provide assurance that humanitarian and
non-humanitarian visa applications are being correctly processed and assessed.
Questionable quality of information
used in decision making
quality of decision making is naturally heavily dependent on the quality of the
information used by the decision maker. Criticisms were directed at two aspects
of the department's information: the quality of the country of origin
information, and the assessment of the credibility of information.
quality of country of origin information
The committee also received evidence critical of the country
of origin information relied on by DIMA to determine protection visa
applications (such as whether the circumstances in an applicant's country of
origin meant that he or she had a well-founded fear of persecution for the
purposes of the Refugee Convention).
A key resource for DIMA in this regard is its Country
Information Service (CIS), which is a database containing information from a
range of sources. The CIS was established in 1992 to assist DIMA
decision-makers by providing information about political, social and human
rights conditions in asylum seekers' countries of origin. The CIS contains a
range of material from UNHCR, DFAT, other countries, newspapers, books,
magazines, Internet web sites, information provided by community groups,
protection visa applicants, academics and non-government organisations. In the event that information is not
immediately available to case managers, the CIS can be requested to conduct
research. Some research requests may be referred to overseas posts and/or
overseas organisations, such as the UNHCR.
DIMA decision-makers need not rely on the CIS alone.
They may also conduct their own inquiries and to consider information they assess
to be relevant and reliable from any source, including from clients and
advocates. Advice from DIMA
decision-makers to the ANAO in 2004 was that, at times, the information
contained within the CIS did not provide them with an analysis of the current situation
in a particular country at the level of detail that they required and that in
these circumstances they were required to look to other sources of information,
such as the internet.
In the course of this inquiry, concerns were raised
over the quality of the country of origin information relied on by DIMA and the
skill of departmental staff in retrieving and using information. It was
claimed, for example, that DIMA's information in relation to the matter of
country of origin is not always adequate and is often at variance to that
supplied by human rights groups.
Another claim was that out of date information was used and that, in at least
one case, a DIMA official had cited a backpackers' tourist guide as his source.
Concern was also expressed over the manner in which
country information was selected and used by decision-makers. The NSW Legal Aid
Commission advised the committee that:
There is a lot of country information that immigration officers
can use. There is also a lot of country information which applicants put before
the case officers. Two things become very clear. Firstly, decision makers do
not seem to use that country information to get background knowledge on the
cultural, political and social norms in that country. It would seem with the
amount of information that is available on, let us say, Burma that a case
officer might get some understanding of the difficulties a person would face
before they actually did an assessment of somebody’s application. Too often,
that does not seem to happen. There seems to be a real culture among onshore
protection officers of looking for information which can be used to reject an
application and forgetting about the rest. That is too often what we see.
Similar concerns in 2000 promoted this committee to recommend
... accurate and up-to-date information from a broad cross-section
of Government and non-government sources should be entered into CIS. Staff
using CIS for visa determination decisions should be trained in rapid
information retrieval, information analysis and methods of critical evaluation.
The Government's response in 2001 was to merely note
that 'this was current practice'.
The ANAO in 2004 also considered DIMA could mitigate
the risks of dated or inaccurate information being relied on by conducting
training that highlighted the risks involved. DIMA's advice to the ANAO at time
was that it had implemented risk strategies including:
- the training of case managers in the appropriate
use of country information and the assessment of information sources;
- management supervision and review of decision
records as part of quality assurance process; and
- the requirement that all items referred to in
decision records be placed on CISNET, which involves review and if appropriate
suggestion of alternative sources, by experienced researchers.
DIMA dismissed claims that the CIS contained outdated
information or was selectively used by decision makers. It stressed that the
CIS was constantly updated by an experienced
and trained research team and that considerable training was provided on its
use. It also stressed that the system was
predicated on decision makers being able to select and weigh the available
country information in each case to reflect the particular situation and
circumstances of the applicant.
DIMA pointed to the quality assurance and
accountability mechanisms, such as the requirement that all information used in
protection visa decisions be included in CIS holdings for audit and reference
purposes. It also noted the safeguard that any adverse information used by a
decision-maker must be provided to the applicant for comment.
approach to the credibility of information
Submissions also raised concerns over the approach
taken by DIMA officials in assessing the credibility of protection visa
applicants. It was argued that there was a need for DIMA to develop a
consistent method for the assessment of credibility issues, one which gave
applicants the ‘benefit of the doubt’.
Assessment of credibility is clearly intrinsic to the
determination of refugee status. For the reasons outlined earlier, most
applicants will lack evidence (other than their own verbal or written evidence)
to support their protection claims.
It is for this reason that the UNHCR Handbook, which has been accepted by the High
Court as a guide to decision making, recommends that decision makers ensure
that applicants present their case as fully as possible and with all available
evidence, and in assessing the evidence, give the applicant the benefit of the
doubt where necessary.
The LSSA noted:
DIMA purports to, and in many cases, does apply the ‘benefit of
the doubt’ approach, but it appears that there is often a lack of consistency
in its application, leading to significant disadvantage for some confused or
Further, LSSA advised that:
Credibility issues such as inconsistencies in information
supplied by the applicant, 'late claims' and the results of linguistic analyses
often form the basis of visa rejections by DIMA. There is a tendency for the
applicant’s whole account to be disbelieved because of a relatively minor fact
or inconsistency in the evidence.
It was suggested that the current system expected too much of refugee claimants, given their
circumstances. There was a need to take account of the myriad reasons that may exist for minor
inconsistencies in the information supplied by applicants or for delays in
supplying information. This could include a lack of assistance in presenting
claims or a limited opportunity to make such claims, particularly when applicants
are overseas or in immigration detention. Moreover applicants can face an array
of obstacles in presenting their case.
A particular concern was DIMA's reliance on often
anonymous 'dob-in' information
to determine credibility. It was suggested
that it should be incumbent on DIMA to check the veracity of any anonymous
allegations before they are used in any decision.
DIMA confirmed that dob-in information is sought and
used, but stressed decision makers had regard to the veracity, credibility and
relevance of such information.
DIMA maintained that it was reasonable to retain
records of information which might shed light on the identity or origin of the
people arriving without authority. It explained that decision-makers are able
to conduct their own inquiries and to consider information they assess to be
relevant and reliable from any source, including from clients and advocates. DIMA
also stressed that 'dob in' information is not automatically considered
reliable. Rather, whether such information is given any weight remains a matter
for the individual decision maker. DIMA also stressed that adverse information
that is relevant to a visa decision is required to be disclosed to the applicant
for comment and, in any event, applicants who disagree with visa decisions have
both merits and judicial review available.
Concerns were also raised over DIMA's reliance on
linguistic analysis evidence to reject applications. The committee was advised
by the LSSA that:
This evidence has been controversial and subjected to sustained
criticism by expert linguists. Excessive weight has been attached to linguistic
analysis evidence, resulting in a significant number of applicants spending
lengthy periods in immigration detention until finally being forced to apply
for passports from their country of origin, only then being granted refugee status.
response to these concerns was threefold. It stressed that analysts
employed by the specialised language analysis agencies it relies on to provide
language or linguistic analysis possess a range of relevant qualifications and experience
and are subject to screening and crosschecking by their employing agency to
ensure confidence in the value of their work.
It also stressed the extensive
training that its decision-makers received in considering applications for
protection visas. It also
noted that, while language analysis is
an important consideration, it was not regarded as conclusive. It is only one factor
taken into account in the decision.
DIMA noted that
language analysis could help substantiate applicants' claims of origin in the
absence of any other tangible information, such as identity documents, travel
documents or other documented personal history.
The committee is unable to form any definitive views on
the adequacy of the information used in the Country Information Service, in the
absence of direct access to the database. Good decision-making requires that
both the information used is accurate and that the decision-makers use that information
appropriately. Criticisms of this area have been necessarily anecdotal, and the
committee is unable to form any general conclusions on the information systems
as a whole. However, the committee certainly endorses the process of reviewing
information on CISNET carried out by DIMA researchers. The committee would
further encourage consideration of random information audits carried out by
external experts to ensure that information holdings are accurate.
The committee considers that information obtained by DIMA
through its 'dob-in-line' must be treated with the upmost caution, particularly
if the information is provided anonymously. All information should be checked,
so far as is possible, for its veracity and, in the absence of conclusive
verification, should not be used in any determination.
The committee recommends that the Migration Series
Instructions include a requirement that case officers treat 'dob-in'
information with the upmost caution, particularly if the information is
provided anonymously, and ensure that such information is provided to
applicants and their legal representatives.
The existence of an adversarial
and hostile culture within DIMA
It was suggested to the Committee that a culture or attitude
exists within DIMA, which results in a bias towards the rejection of
applications. The LIV, for
example, advised the committee that:
... there is a perceived culture of DIMA decision makers and
compliance officers in administering the Migration Act as a ‘negative’ rather
than a ‘positive’ piece of legislation which has had the practical effect of DIMA
seeing its primary role as a regulator rather than as a service provider ... It
is arguable that DIMA has become a Government department to be feared by those
who must seek or rely on its services. 
The Refugee Advocacy Service of South
Australia (RASSA) – a community legal service
provider – advised the committee that:
[e]ven when many of our clients have been granted protection
visas ... we are reluctant to identify them for fear of reprisal by DIMA.
The Catholic Migrant Centre argued that, in order to
improve the quality of its decision making, there was a need to promote within DIMA:
... a culture of respect
for Migration and Refugee law and asylum seekers (ie decision makers should be
at least as eager to protect refugees from being refouled as they are to ensure
that non-refugees are not granted asylum).
Several submissions were very critical of an apparent attitude
held by some DIMA officers towards applicants, particularly those seeking
protection visas. They alleged these attitudes to be adversarial, inquisitorial, interrogational and 'very intimidating and making
vulnerable people very nervous, uncomfortable and treating them as less than
human'. Others referred to a lack
of sensitivity by DIMA officers when conducting interviews to ascertain the
circumstances which led the applicant to come to Australia
seeking protection. One example provided
was the claim concerning an applicant who:
... told his case officer that his father had been tortured by
the Taliban, specifically that they had cut off his hands and feet. He became
hysterical when his case officer replied that it was his father then that
should have come to Australia
on a boat, not him. His father was of course dead. 
It was suggested that DIMA (and the RRT) is 'too ready
to dismiss asylum seekers' claims on the ground of the applicant's purported
lack of credibility' and that 'psychological evidence submitted by the
applicant which tends to affirm the applicant's claims or explain why adverse
inferences about credibility should not be hastily drawn, is given insufficient
weight.' In one case, for example,
it was claimed that the interviewing officer had indicated that 'the detainee
must be telling lies about his circumstance or actions, simply because the
action taken by the detainee was something, 'I (the interviewer) wouldn't
have done.' 
Report's recent and well publicised finding
of 'deep seated cultural and attitudinal problems within DIMA' was cited as a
reason for the above. The Palmer
Report's findings were concerned primarily
with compliance and immigration detention cases. However, the Palmer
Report did note that:
Although the Inquiry was not called on to examine the corporate
culture of DIMA as a whole, the concern of some commentators is that the
control motivated culture evident in compliance and detention might now be
dominant. This would need to be carefully dealt with as an integral part of the
proposed implementation strategy for the reforms that are essential to the
initiatives that the Inquiry [that is, the Palmer Inquiry] proposes.
A similar view was expressed by witnesses and
submitters to this inquiry who advised the committee that, in their experience,
the cultural and attitudinal problems in DIMA's compliance and detention areas
that the Palmer Report
had identified were endemic across that department.
The NSW Legal Aid Commission advised the committee
As illustrated by events during 2005, within the Compliance
sections of the department there is a culture that encourages officers to act
in disregard of legal norms and acceptable standards of administrative
procedure. It is our submission that the same culture exists in other sections
of the Department, both in Australia
and offshore, where delegates are responsible for determining applications for
This view was shared by the President of the Law
Society of South Australia, who advised the committee that:
... the cultural problems that have been identified within the
Department extend to the processing and assessment of offshore humanitarian
representing both the Law Council of Australia and the Law Institute of
Victoria, also advised the committee:
The Palmer report is only the tip
of the iceberg of a system which has gone awry. Whilst that report focuses on DIMA’s
detention and compliance activities and makes very adverse conclusions about
those, that culture is prevalent throughout the system. ... systemic difficulties
within the system percolate right through to the lowest level case officer. The
Palmer report has indicated not only that there is a culture of imbalance, that
there are rigid attitudes and processes and that there is a strong government
policy with a lack of assertive leadership to ensure integrity of application
but also that there is a lack of accountability and public confidence and that
there is a desire to preserve the status quo.
Associate Professor Kneebone
argued the view that:
... the 'deep seated culture and attitudes' [that is, those
identified and criticised in the Palmer
Report] are embedded in the Migration Act
itself and reflected in many of its provisions and hence its administration and
operation. ... recent controversies surrounding the exercise of detention and
deportation cases suggest that it is a time for a major overhaul of the scope
and focus of the Migration Act.
of an adversarial and hostile culture within DIMA are not new. Similar concerns
were raised in the committee's inquiry in 2000. In its report on that inquiry,
the committee noted, for example, the following evidence from a former member
of the Refugee Review Tribunal:
Primary decision-makers [in DIMA] ... are often woefully ignorant
of the law and of conditions in the country against which they assess the
applicant. Anecdotal evidence is that they are often arrogant, hostile and even
abusive towards applicants. In some cases, they reveal attitudes of prejudice,
xenophobia and racism.
The Federation of Ethnic Communities Councils of
Australia (FECCA) advised the committee that:
[t]here is a perception that if you come from certain countries
you are more likely to end up in a detention centre than a jail. ... there is a
strong perception that it is done using a selective, racist approach .... I am
not sure if that is true or not, but that is a strong community perception. ...
.[There is] huge concern within the ethnic community in Australia
about putting people in detention centres without identifying them or giving
them a chance to justify their own identity. A common joke now in the ethnic
media and among some people is that they need to carry their passport all the
time. That is a very serious matter.
Witnesses did acknowledge that action was being taken
to address these issues in the aftermath of the Palmer
and Comrie report. For example, the committee was advised that:
The DIMA review of service quality, with the changes at the top
echelon of DIMA, recognises that there is a need to undertake wholesale and
significant change from the point of view of not only culture but also process
and that, in terms of the fact that immigration is a vital part of Australia,
there is a need to redress some of these imbalances.
The Government, in responding to the findings of the Palmer
and Comrie reports, has accepted the need for cultural change more generally
across the Department and to 'ensure that the government's border security and
immigration policies are administered more fairly and reasonably'.
DIMA was asked to comment on the concerns outlined
above. Its response acknowledged that there was a problem and to point to the
projects now being implemented to address the recommendations and the broader
issues relating to culture highlighted in the Palmer
Report. DIMA advised that:
... in order to meet the expectations of the Government, the
Parliament and the wider community, the Department must: become a more open and
accountable organisation; deal more fairly and reasonably with client; and have
staff that are well trained and supported.
DIMA referred the committee to recent changes to the
structure and governance of the Department designed 'to focus on clients as
individuals, to ensure quality decision making, and to communicate better with
the wider community'. It advised that:
These changes include better training and support for staff,
improved governance and accountability measures, a stronger emphasis on case management
and client service and broader cultural change within the Department.
The committee is concerned that the focus of the
Government's recently announced reforms appears to be on the compliance and
detention areas of the department.
Evidence suggests that there is a need to address issues for the processing and
assessment of onshore protection and humanitarian visa applications. As noted
above, the committee has recommended that the proposed training and support
measures be broadened to include these areas.
The committee notes that DIMA's protection visa
decision-making remains subject to a qualitative performance measure that only
measures the timeliness of visa processing. It also notes the ANAO finding that
the latter does not provide a complete indicator of quality of decision-making
and that better practice requires a broader set of indicators. To this end, the
ANAO recommended that the quality indicators for DIMA's protection visa
decision-making be expanded beyond timeliness. The committee notes that the
performance indicators used to measure the RRT and MRT's performance include
indicators other than timeliness (such as the levels and outcomes of appeals
against their decisions; and the number of complaints received about their
Members and services).
The committee recommends that the quality indicators
for DIMA's offshore humanitarian program and onshore protection visa processing
be amended to include qualitative performance measures other than timeliness
(such as the number and outcome of review applications and appeals).
Restrictions on applicants' access
to legal advice and assistance
the complexity of the migration system, it is self-evident that equitable
access to that system will frequently depend on access to specialist legal
advisers, especially where applicants have little or poor English skills.
particular aspects of this issue emerged during the inquiry – the first relates
to the adequacy of legal aid schemes; and the second relates to access to legal
advice and assistance on entry to Australia.
to legal aid
The committee received evidence critical of the
barriers faced by many visa applicants, particularly those in detention, in
gaining appropriate legal advice and representation. The committee notes that similar
concerns arose during its inquiry into the operation of Australia's
Refugee and Humanitarian Program in 2000 and in the inquiry into Legal Aid and
Access to Justice in 2004.
A key concern was inadequate free legal assistance
available to people in immigration detention and in the community.
The Commonwealth provides assistance in relation to
visa applications under two schemes: the Immigration Advice and Application
Assistance Scheme (IAAAS) and the general Commonwealth Legal Aid Scheme.
The IAAAS is administered by DIMA through contracts
with individual service providers. The IAAAS funds twenty-three contracted
registered Migration Agents to provide application assistance to:
protection visa applicants in immigration
disadvantaged protection visa applicants in
greatest need (including TPV holders) in the community; and
disadvantaged non-protection visa applicants in
greatest need in the community.
'Application assistance' is assistance to prepare,
lodge and present visa applications. It also includes assistance to prepare the
merits review application should the primary application be refused, and to
explain the implications of visa decisions made by DIMA and the relevant merits
review tribunal. IAAAS services are not
provided where an applicant seeks the Minister's intervention under section 417
of the Migration Act or where an applicant appeals to the Federal Court. Appeals to the Federal Court would
presumably be a matter for the Commonwealth Legal Aid Scheme.
IAAAS also funds the provision of 'immigration advice'
to disadvantaged members of the community in greatest need. Assistance is
provided to help eligible persons living in the community to prepare and lodge
their visa applications; and to extend or to vary the conditions of their visas
and sponsor applicants.
IAAAS services in 2004-05 cost $1.9 million and
provided 430 application assistance services to asylum seekers in detention, 418
asylum seekers in the community and 96 non-protection visa applicants. Over
5,000 persons were provided with immigration advice in that year. Assistance
and advice through the IAAAS is provided at no cost to eligible persons. 
The level of funding and therefore assistance available
under each scheme has been criticised. The committee in 2004 concluded that the
funding of assistance through IAAAS and Commonwealth Legal Aid Scheme was
inadequate to satisfy the demand for assistance both at the preliminary and
review stages of migration matters, including challenges to visa decisions and
deportation orders. The committee therefore recommended that Commonwealth
guidelines be amended to provide for assistance in migration matters, subject
to applicants satisfying means and merit tests, and that necessary funding be
provided to meet the need for such services.
It is apparent that little, if any, effective action
has been taken since that recommendation was made.
Evidence to this inquiry indicated that the Legal Aid
Scheme remains of limited assistance to many visa applicants. The NSW Legal Aid
Commission advised that existing legal aid guidelines for immigration matters
restrict legal aid to only those matters where there is a 'difference of
judicial opinion' or where 'the proceedings seek to challenge the lawfulness of
detention, not including a challenge to a decision about a visa or a deportation
order.' The Commission recommended
that the requirement that there be 'differences of judicial opinion ' before
legal aid can be granted for judicial review proceedings should be scrapped and
replaced solely by the means and merits test.
Witnesses and submissions highlighted the limitations
of the IAAAS. The committee was advised that support is provided to 'only a
small fraction of the visa applicants who need assistance' and that there is
considerable unmet demand. It was argued that the need is particularly acute
among temporary protection visa holders applying for further protection visas.
Many are in a poor financial position and suffer poor physical and/or
psychological health. Yet the legal issues involved in further protection visa
applications are complex.
The NSW Legal Aid Commission is a contractor for the
provision of legal services to asylum seekers under the IAAAS scheme. It
It is our experience that many asylum seekers with strong claims
are unable to obtain assistance because of the limitations of the scheme. We
are obliged to turn away financially disadvantaged applicants with strong cases
when funding is exhausted. Enquiries of other contractors show that they have
similar difficulties. Many applicants do not speak English and have enormous
difficulty preparing and lodging their own applications for protection visas.
Failure to submit a well-written and comprehensive protection visa application
usually leads to rapid rejection of the application. Unrepresented applicants
are at grave disadvantage in this process.
The committee was advised that another area of great
unmet need is services to people, particularly protection visa holders, seeking
to sponsor family members from overseas. The IAAAS limits assistance to the
giving of advice and assistance in completion of forms. However, the committee
was advised that more assistance is required due to factors such as— lack of
birth and marriage certificates for applicants
from countries like Afghanistan and Somalia; requirements for DNA testing;
requirements to prove dependency of adult children separated from the parent in
Australia for many years; lack of English language capacity of relatives
overseas; and long periods of family separation as a result of the temporary
protection visa regime.
Another significant criticism of the IAAAS scheme was
that it left detainees who do not have refugee claims with few options to seek
advice or representation. The Law Council of Australia, for example, advised
the committee that:
... the provision of legal assistance to detainees is severely
limited. DIMA funds legal representation in respect of detainees who apply for
protection visas. The legal representation is provided to assist with the
completion of the protection visa application. Asylum seekers who are unable to
seek refugee status are unable to be provided with legal representation under
the funding program.
The NSW Legal Aid Commission also stressed that there
is no free advice service to detainees:
The advice component of the IAAAS applies only to disadvantaged
members of the community; there is no funding of advice services in detention.
It does provide all detainees who have an asylum claim with a free migration
agent or lawyer to assist them with their protection visa application.
The committee is aware of concerns that the Migration
Act generally restricts the right to provide immigration advice to migration
agents registered under that Act.
It has been claimed, for example, that:
The cost and administrative burden of the migration agents
licensing regime acts as a choke on legal centres and pro-bono lawyers and
stops them from taking on migration cases. Vivian Alvarez Solon's inability to get help from a local legal aid centre
because of immigration licensing restrictions is one of the most serious, but
unknown, failings of the Migration Act and contributed to her wrongful
It was put to the committee that the effective
operation of the Migration Act depends on visa applicants being able to
understand the law in order that they are able to make applications for
appropriate visas and to present their case.
Witnesses and submissions stressed that ensuring applicants had appropriate
access to legal advice, assistance and representation at the outset of the visa
determination process would provide significant benefits for applicants and
government alike. That is, it could improve the assessment process, lead to fewer
applications for review to the RRT and appeals to the courts and, thereby, be
The Immigration Advice and Rights Centre (IARC) saw the
following advantages for applicants of early access to legal advice and
Potential applicants would be in a position
to make informed decisions as to whether or not to lodge an onshore visa
application, and will be informed of relevant exclusion periods should they not
have any onshore visa options;
The most appropriate visa class would be applied for
(which may or may not be a protection visa);
strict time-frames prescribed under the Migration Act would be complied with;
visas would only be applied for where a protection visa is the appropriate visa
to apply for;
DIMA would receive
appropriate and adequately prepared applications, which would minimize
processing times and the costs involved
in processing incomplete or inappropriate visa applications, and will maximise
The Law Council of Australia (LCA) outlined additional
benefits of expanding legal assistance to detainees:
a. Legal advice may inform the detainees of the
likelihood of success and avenues of review and appeal and the difficulties and
obstacles faced, and the usual experiences of others in similar circumstances.
b. Where the
likelihood of a successful application to obtain a visa is remote, the person may
be encouraged at some stage of the detention to return to his or her country.
c. The provision of legal assistance and the
information provided under lawyer-client confidentiality may expose cases in
which Australian citizens are wrongfully detained.
The South Brisbane Immigration & Community Legal
Service (SBICLS) highlighted the advantages of access to legal advice and
assistance for detainees:
People detained under immigration law as suspected non-citizens,
without competent and timely legal assistance, may not get an opportunity to
have their immigration case considered properly, meet tight and inflexible time
limits prescribed by immigration law, or to obtain their release. The
consequences are extremely serious – a person may continue to be detained, or
be deported, face bans from ever returning to Australia,
lose right to permanent residence and be torn away from their families. In
protection visa cases, they may face persecution and death on return to their home
The SBICLS argued that the procedural requirements
imposed under the Migration Act made a duty lawyer scheme essential:
A duty lawyer system is particularly needed given the effect of
timelines. For example, S195 MA allows a detainee 2 (+5) working days to apply
for a visa. After this a detainee may only apply for a Bridging or Protection
visa. Without access to timely and sound advice the time limits in s195 may
encourage protection visa applications because other visa options have not been
explored within the strict limits prescribed. People who have had their options
explained by an independent advocate are more likely to accept their situation
and be clear on their options. Independent adequately resourced legal aid style
of a duty lawyer would not encourage protection visas as there is no financial
incentive to do so.
The LACNSW noted that, in the past, a lawyer from Legal
Aid NSW would attend at Villawood detention centre once a week to provide
general immigration advice to detainees. It argued that the above-mentioned
benefits required that funding be provided for a regular face to face legal
service at detention centres:
Funding such a service would allow detainees to obtain advice on
a range of issues including wrongful detention, bridging visas, options for
visa applications, criminal deportation and judicial review.
The IARC also considered the current level of
immigration advice and assistance to be inadequate and needed to be expanded to
include assistance to all detainees, not just those seeking protection visas.
It therefore suggested that all detention cases should be:
... referred to an IAAAS service provider for advice on relevant
onshore visa applications as soon as practicable at or after a detainee's
section 194 interview (and not later than 12 hours after that interview),
allowing the potential applicant to lodge (or make an informed decision not to
lodge) within the strict time limits prescribed under section 195.
In light of the above, much was made of the fact that
section 256 of the Migration Act currently provides detainees with a right to a
lawyer only when and if expressly requested by the detainee.
The Law Council of Australia advised the committee
The Migration Act provides that legal assistance may be made
available to an immigration detainee if a request in writing for such
assistance is made. The law does not mandate the giving of such assistance if
people do not know how to ask for it. The Act is also clear that there is no
obligation on officers to offer advice to detainees about their position. The
Law Council maintains its long held view that these arrangements are grossly
The SBCIL shared these concerns. It also pointed out
There is no duty under law (only in procedures) to advise a
person they can seek legal assistance. Officers are required only to advise of
timelines that exist for lodging visas (s194-196) but do not have to advise
that the detained person can get a lawyer, nor provide access to that lawyer
[ie, unless requested by the detainee].
Witnesses and submissions highlighted the consequences
for detainees of a lack of a statutory guarantee of legal advice and
representation. The Refugee Advocacy Service of South Australia (RASSA), for
example, advised the committee that according to detainees, DIMA does not advise
asylum seekers of their right to obtain legal advice:
This effectively means that detainees only learn that legal
assistance is available to them by word of mouth through other detainees or
community people who visit the detention centre to provide support to asylum
seekers. The result of this is that detainees who are not aware of their right
to obtain legal advice because of cultural or language barriers, lack of
education or mental illness, are left to fend for themselves unless they learn
that they are required to ask for legal assistance before DIMA will
allow it. 
RASSA representatives argued that, given the reliance
on word of mouth among detainees, the changing detainee population meant that
some will not obtain the legal support they require:
It used to be that the majority of detainees at these centres
would relate to each other. They were from a similar background. They shared
languages, so they could spread the word that there were lawyers available to
assist them. Now there are detainees from a wide variety of cultures and languages.
They are not communicating with one another, so I have no doubt that there are currently
people in Baxter in need of a lawyer who do not know we exist,
and we are unable to offer our services to them. That is still a problem.
Nor, according to RASSA, will DIMA assist legal
representatives to contact detainees in the absence of any request from
RASSA is unable to be pro-active in advertising their legal
services to detainees in Baxter, because DIMA refuses to
provide details to us of the people who are detained. We can therefore only
assist asylum seekers, when we become aware, through community people or other
detainees, that they are in need of help. We rely solely on the information
provided by other asylum seekers and observant visitors to Baxter
to identify detainees in need of our legal services. Those detainees who are
isolated from the rest of the inmates, either because of racial, religious or
health reasons or because they are held in isolation (in the “Management Unit”
or Red 1 Compound, for example), may never come to the attention of lawyers.
Once we are aware of a detainee’s existence, we can telephone
them and invite them to sign an authority, but we are unable to visit them or
provide legal assistance until they sign an authority for us to act for them. If
they are unable to sign an authority, due for instance to their mental illness,
then such detainees may never get assistance. We regard this as yet another
unreasonable barrier which is placed between the asylum seekers and their
access to legal rights.
Other barriers to appropriate legal advice and
assistance cited in evidence to the committee included the remote location and
isolation of some detention centres, such as Baxter and on Christmas
Island. Another cited
difficulty was the lack of appropriate facilities – such as adequate interview
rooms and access to telephones, faxes and photocopiers – at some detention centres:
In the past we have not had access to any such facilities. Certainly
we were not able to take phones in, and problems with access to phones, faxes
and photocopiers in detention has been a problem in the past. At times it seems
to be somewhat arbitrary as to what facilities we might have access to. Again,
this is compounded by the fact that it is not as if we are just down the road;
it takes us at least four hours to get to Baxter and in the past
it took seven hours for a trip up to Woomera. We just did not have the
facilities there, so that again produced delays and obstruction in being able
to provide proper advice to our clients. ... Another feature of the whole regime
has been that at times we do not know if it is DIMA, ACM or GSL who are
providing the obstruction. There is a lot of duckshoving that goes on and hiding
behind the cloak of who might be responsible for certain facilities within the
The committee was advised that detainees have had to
rely on the 'merit points' system used in detention centres to meet the upfront
fax and photocopying charges imposed by the detention centre contractor. It was alleged that had been used to
deny detainees access to legal representation:
Detainees were required to pay upfront and even if faxes were
urgent or addressed to lawyers they would not be sent if a detainee had
insufficient points. In 2005 a complaint was brought to the managers of DIMA
and GSL at Baxter about a detainee being unable to send a fax
to his lawyer because he had insufficient points and they confirmed GSL’s
position that he was not permitted to send the fax.
Of significant concern to the committee were claims that
officials and government contractors deliberately obstructed detainees' access
to legal advice and representation. RASSA described its story as one of fighting
to get access to its clients in immigration detention:
Our experience has been that from the very start, when detention
centres were set up in the outback away from any legal access, there has been a
culture of concealment, obstruction and prevention of due process and proper
RASSA cited the following as examples:
RASSA is required to write letters to DIMA seeking access for a
visit on each separate occasion, several days in advance. At times permission
has been granted and then cancelled abruptly when lawyers were just about to
set off for their journeys to Woomera or Baxter. On occasions
detainees were suddenly sent away to other detention centres without any notice
or reasons being given to their lawyer.
Upon visiting a detention centre lawyers are generally only
allowed to see those persons who they have requested to see in advance. If a
detainee hears about their visit whilst lawyers are actually there, that person
is usually refused access to the lawyers despite his or her request.
In addition lawyers are not allowed entry into the actual
compounds where detainees reside. This means that RASSA is not able to access
those detainees who may be ill, for instance, or to review conditions in
notorious areas, such as the Management Units or Red Compound 1. 
Similar concerns and claims were raised by other
witnesses, such as the representatives of the Woomera Lawyers Group who advised
the committee of their difficulties in accessing clients in detention centres.
In view of the above, RASSA submitted that 'lawyers
should be allowed full and unrestricted access to asylum seekers in detention
centres' and that 'section 256 of the Migration Act should be amended by
deleting the phrase “at the request of the person in immigration detention” from
this provision.' They also
submitted that lawyers should be permitted to represent applicants throughout
the interview process conducted by DIMA which is presently not allowed under
existing procedures. 
DIMA disputed many aspects of this evidence.
DIMA maintained that it always facilitates access to legal advisers and advice and, moreover,
provides detainees with all reasonable facilities for obtaining legal advice or
taking legal proceedings in relation to their immigration detention.
The department advised that all detainees are informed
upon arrival at an immigration detention facility of their right to receive
visits from their legal representatives, contact them by phone and to receive
and send material to them via fax or post. This information is also provided in
the Detainee Information Booklet, a copy of which is provided to every
DIMA highlighted the obligation imposed on the
Department by section 256 of the Migration Act to provide such assistance at
the detainee’s request. It also advised that:
[i]n addition Migration Series Instruction 234: General
Detention Procedures, requires that detainees be informed as soon as
practicable of their entitlement to seek legal advice, with the exception of
certain detainees referred to in s 193(1) of the Act, such as unauthorised
arrivals and certain character cancellation cases.
The committee notes that one could reasonably argue
unauthorised arrivals and character cancellation cases constitute a significant
omission from such a requirement given their number and their need for advice.
DIMA also pointed to the publicly funded Migration
Agent assistance provided through the IAAAS to protection visa applicants in
immigration detention and to disadvantaged visa applicants living in the
community. It also noted that applicants are free to choose privately funded
DIMA also explained that, in order to protect the
privacy of detainees and to ensure equal access to resources, there are certain
requirements which must be met by lawyers visiting immigration detention.
Departmental protocols require detainees' legal representatives to produce
evidence of their qualifications prior to their initial access to a detention
facility. They must also establish their identity and provide written evidence that
a detainee has retained them to act on his or her behalf. Permission is
required to bring mobile telephones and lap-top computers into an immigration
DIMA noted that visits by lawyers for non-migration
matters are facilitated subject to operational requirements. Separate interview
rooms are made available, where possible, for lawyers to meet with their
clients. The protocol also specifies that lawyers may provide advice to
detainees by telephone or videoconferencing (where and when this facility is
In response to concerns about detainees being unable to
communicate with their legal advisers, DIMA stressed that detainees have a
right to contact their legal representatives by phone and to receive and send
material to them via fax or post. It explained that the Detention Service
Provider (DSP) or Departmental officers will generally facilitate access to
phone, faxes and postage for detainees unable to pay for these themselves.
However, in the case of the DSP, it is for the Operations Manager to determine
the circumstances and extent of this service. Size limits also apply to faxes,
with lengthy documents having to be sent by mail. In contrast, the DSP
facilitates free and unlimited facsimile, telephone and postage access to the
Commonwealth Ombudsman and the Human Rights and Equal Opportunity Commission
legal advice and assistance on entry
Some witnesses and submissions were particularly
concerned that unauthorised arrivals are not provided with any legal assistance
when they initially entered or sought to enter Australia.
The LIV, for example, advised that:
Currently, immigration officials have the ability to return a
person to their country of origin, before they enter the 'migration zone', if
they deem that a claim for protection has not been validly made. In many cases
this may be due to communication difficulties because the person making the
claim does not speak English and does not know how to make a valid application.
This, it was argued, meant people could be turned
around without sufficient consideration having been given to their situation.
As an example, the LIV cited:
...[the] occasions when the Minister has arranged for boats
carrying suspected asylum seekers to be intercepted and effectively turned away
from Australia after claiming that the passengers on board the boat were not
seeking protection, were not within the 'migration zone' or did not make a
valid claim for protection. In returning people before properly assessing if
they have a protection claim it is highly possible that Australia
is breaching its non-refoulement
obligations under the Refugee Convention.
The SBCIL also argued that there is little transparency
and harsh time limits apply in immigration clearance. It cited Migration Regulation
2.46 which it explained:
... gives a person 5 minutes to say why their visa should not be
cancelled. This is insufficient time to properly respond.
Other witnesses noted that similar problems could arise
in relation to persons who had been detained as opposed to turned away. The
Woomera Lawyers Group, for example, advised that:
We found out at Woomera that a lot of people had been screened
out of the process because they had not said the right words. They had not
said, ‘I claim the protection of Australia.’
They had said things like, ‘I have come here so my family can be better’—things
like that. It was at our pushing, once we found out that there was a whole
group of them out there in November compound who were in this predicament, that
DIMA then changed its mind and they were all allowed to make another
In light of the above, the LIV recommended that:
... asylum seekers, who make an oral claim for protection upon
arrival at an Australian airport or sea port, ... be given the right to access an
independent migration agent/lawyer, an opportunity to fully explain their
claims before being returned to their country of origin and to make a valid
application for a Protection visa.
The same concerns arose during the committee's 2000
inquiry into Australia's
onshore refugee determination system. DIMA stressed to the committee at that
time that great care is taken when interviewing unauthorised arrivals to ensure
that a person is not required to leave Australia
and return to an unsafe place. The department also indicated that it was under
an obligation to determine whether unauthorised arrivals were prima facie likely to engage Australia’s
protection obligations and, therefore, appropriate procedures had been put in
The committee at that time refrained from making a
recommendation on this specific issue. However, it noted that:
One of the main problems that has been identified in respect of
the capacity to make an application for a Protection Visa is the fact that
there is no obligation on departmental officers to provide detainees with
information about the process or to advise that legal or other assistance is
available. Neither s 193 nor s 256 [of the Migration Act] place any obligation
on an officer unless the asylum seeker makes a request.
DIMA's response to concerns about the level of
assistance provided at arrival or entry to Australia
was to reiterate that persons assessed as prima
facie engaging Australia’s
protection obligations following an entry interview at the border will be
provided with assistance in preparing and lodging a protection visa application
under the IAAAS. It also noted that persons refused immigration clearance at
the border and placed in immigration detention can also access the protection
visa process at any time after the entry interview while they remain in
immigration detention in Australia,
if new information or claims are made.
It referred the committee to statutory obligations under the Migration Act
which require immigration officers to provide application forms for a visa upon
request and to provide reasonable facilities for the person to access legal advice
should they ask for this. 
The committee acknowledges that there is considerable
provision within the migration system for access to legal advice and
assistance, including via the legal aid programs. The capacity to expand such
assistance programs is almost limitless and the committee does not necessarily
accept the view that increasing legal aid would inevitably lead to fewer
appeals. However, it is logical to suggest that legal assistance to applicants
at an early stage would improve the quality of applications and could be
expected to improve processing at other stages of the process.
Therefore the committee maintains its view that, for
the refugee determination process to work effectively and efficiently, access
to appropriate information, advice and assistance (including legal advice and interpretation
services) at the outset of the process is critical.
The committee is also struck by the divergence of
evidence between DIMA's formal policies on access to lawyers and the experience
of those lawyers in their day to day practice. Whatever the theory, the committee
cannot escape the suspicion that the rules are interpreted as restrictively as possible
by DIMA officers at the operational level, in a way that seems designed to
limit effective access. This suggests that at least some in DIMA view lawyers
as a problem rather than an asset to the system.
The committee stresses that every effort must be made
to ensure that asylum seekers understand the rules relating to entry; their
rights and obligations; and the basis on which their claims for asylum will be
accepted. To this end, the committee endorses the recommendations concerning
the provision of legal advice and assistance made in its 2000 report into the
onshore refugee determination process, the recommendations of the 2004 Select
Committee on Ministerial Discretion, as well as the migration related
recommendations of the Legal Aid and Access to Justice Inquiry in 2004. In addition the committee makes the following
The committee recommends that visa applicants' legal
representatives be accorded the right to participate in primary interviews
conducted by DIMA.
The committee recommends that the Government institute
and fund a duty solicitor scheme for all persons held in immigration detention
(not solely protection visa applicants).
The committee recommends that DIMA cease its practice
of interpreting section 256 of the Migration Act narrowly which, in practice,
limits access to lawyers. Detainees
should be advised of their right to access lawyers, and lawyers should have
ready access to detainees with the minimum possible restrictions.
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