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Refugees who have waited for years to have their cases for asylum heard are now being rushed through a new system that critics say erodes due process. By Rick Morton.

Refugee processing blitz

David Manne, executive director of Refugee Legal.
Credit: Refugee Legal

After more than eight years waiting for a determination, asylum-seeker families received the letters from the Department of Home Affairs virtually all at once, at the start of May.

They had just two weeks to find pro bono legal representatives for their one and only interview with the Australian government to plead their case for refugee protection.

The letters were sent to those who arrived in Australia by boat between August 13, 2012, and January 1, 2014. After being left in legal limbo for the better part of a decade, the Commonwealth has decided it wants to clear more than 1100 of these asylum seekers through a so-called “fast-track” process by the end of June.

It’s an arbitrary deadline, says Refugee Legal’s executive director and principal solicitor David Manne, one that amounts to a “radical deviation from ordinary legal principles”. There is no merits review process for asylum seekers unable to persuade departmental delegates about their history or risk of persecution.

Unlike other immigration matters, the Administrative Appeals Tribunal (AAT) has been deliberately cut out of the “fast-track” asylum-seeker pathway.

“There has been a serious and systematic erosion of basic due process,” Manne tells The Saturday Paper. “Within this terrain, there has been an ever-deepening tension that has emerged between the executive [government] and the judiciary about who makes decisions and how those decisions are to be made.

“This is an exercise in extreme executive over-reach by the government on individual liberty and decision-making powers to decide people’s fate.”

Legal funding for “fast-track” asylum seekers, which once numbered more than 30,000 people, was reduced to nil in 2014 when the policy was announced. Community legal centres and refugee legal services must deal with the massive interview surge from their own already stretched budgets.

Manne concedes these causes are often dismissed as the narrow preserve of the “bleeding heart left” but is joined by others in cautioning that these rights are hard won and easily lost, not just for those seeking asylum but for Australian citizens as well.

This “pervasive pattern … [of] governments fiercely resisting independent scrutiny on policy that operates by executive fiat outside the reach of the law” is written across the Commonwealth, he says.

Recent examples include robo-debt, which continued after multiple decisions against the government in the AAT, and the proposed introduction of “independent assessments” for the National Disability Insurance Scheme, which are still outside the direct remit of the tribunal.

“What these represent, and what I believe has risen in recent times, is an ever-pressing concern for all of us that we are in real danger of losing a sense of the law, due process and what the rule of law means for our society,” Manne says.

“The really severe consequence of executive over-reach is that this poses a very real threat to the fabric of our society. I do think we need to ask the question: Who and what next?”

At the same time as this is happening, new analysis shows that the AAT has been further weighted with appointments from conservative politics.

On February 22 this year, then attorney-general Christian Porter made 10 new appointments to the AAT. Half of them have links to the Liberal and National parties, including former politicians, failed candidates and advisers to Howard government ministers.

The tribunal additions came nine days before Porter took sick leave amid serious sexual assault allegations – now the subject of defamation proceedings after Porter’s strenuous denials – and weeks before his demotion in a cabinet reshuffle.

There were two former Labor politicians among the new appointments – one-time South Australia deputy premier John Rau, SC, and Victorian state minister Philip Dalidakis – but their numbers are dwarfed by the Liberal and National aligned recruits.

The Saturday Paper is not questioning their competence or the reasons for their appointment.

An updated analysis of AAT appointments since 2015 reveals that Porter, and George Brandis before him, have given full- and part-time jobs to at least 80 people linked to the Coalition. Many of these have legal qualifications and, according to a spokesman for the new attorney-general, Michaelia Cash, others “have varied experience, careers and specialised knowledge in fields such as law, medicine, academia and public administration”.

The spokesman said: “The government, whether it is a Federal Court appointment, a Fair Work Commission appointment, an AAT appointment or any other appointment, carefully and methodically looks through the candidates to ensure that the most suitable candidate is appointed to that role.”

The Saturday Paper is aware of several cases where tribunal members have been challenged for “rough conduct” against lawyers – and by extension, the people they represent – in bizarre shows of inscrutable venom or ideological anger at positions put before them.

The Saturday Paper is not suggesting any of the tribunal members appointed by Porter in February have engaged in “rough conduct”.

When asked if Cash supports the introduction of an independent panel to make shortlists for judicial and tribunal appointees, Cash’s spokesman said: “It is a fair and reasonable policy to ensure that appropriately qualified candidates are appointed to the AAT, irrespective of any political affiliations.”

Pointing to seven appointments made by the Coalition of Labor-linked tribunal members, including former speaker Anna Burke, Michaelia Cash’s spokesman said: “Labor is quick to criticise appointments who may have a different political view but are very happy when we appoint those from a Labor, or union, background.”

Terry Carney, a former member on the tribunal and now emeritus professor of law at the University of Sydney, says some lawyers appointed to the tribunal mistake it for a courtroom, although its function is pointedly different.

“Administrative merits review is not the same as pleading a point of law in a court,” he says. “Their role is to step into the shoes of the decision-maker and they must ask all the relevant questions in the matter, to be proactive about it, regardless of whether these issues were raised in the original decision.”

Asylum-seekers now facing the “fast-track” process will not have recourse through the tribunal, although many other migration cases are heard there.

As David Manne says: “What existed before the ‘fast-track’, every person could apply to the AAT to have a fresh rehearing of their case, which is traditionally what merits review provides people in this country.”

Instead, they will have access only to the Immigration Assessment Authority, a “fundamentally unfair” quasi-tribunal that has no hearings and makes determinations solely on the information provided in the first and only interview an asylum seeker is granted with the Department of Home Affairs.

Now, after waiting more than eight years, those interviews have been announced with just weeks to marshal legal representatives. The weight of this moment is all too clear.

“We had a family the other day – mother, father and three children – who arrived by boat in 2012,” Manne says. “The father was a Kurdish activist who was routinely tortured and locked up in solitary for months on end at the hands of the security forces in Iran.

“It’s taken a terrible toll on their mental health. After waiting so long, just the other day he gets the letter with two weeks’ notice. And he panicked.”

After seemingly being lost in time, families like these now have one chance and almost no time to prepare.

“It’s a recipe for failure and so utterly unnecessary,” Manne says.

This article was first published in the print edition of The Saturday Paper on May 15, 2021 as "From limbo to last chance".

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Rick Morton is The Saturday Paper’s senior reporter.