Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work
- Written by Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW Sydney, UNSW Sydney
Immigration Minister Andrew Giles today announced[1] significant changes aimed at restoring the integrity of Australia’s refugee protection system.
The key focus is on reducing the significant backlogs in the processing and reviewing of protection visa applications once people apply for asylum in Australia.
The aim is to ensure people who fear persecution or other serious rights abuses can be granted protection quickly. This will, Giles[2] says, allow them to “rebuild their lives with certainty and stability”.
According to Giles, “Australians are rightly proud of our country’s generous refugee program”. But there is no denying the current onshore protection system is broken.
The focus of successive governments in recent years has been on blocking and punishing asylum seekers who attempt to reach Australia by boat. This has distracted both the public – and the government – from the serious systemic issues slowing down access to protection here in Australia.
A decade for a final decision
The onshore protection system covers people who arrive in Australia on a valid visa – such as a tourist or student visa – and then apply for asylum.
Some people have valid protection claims, some don’t. A key problem is that processing times for these claims have been ballooning in recent years. On average, it now takes around[3] 2.4 years for an initial decision on a protection claim to be made by the Department of Home Affairs. If the application is denied, it takes another 3.6 years to seek a merits review of the claim at the Administrative Appeals Tribunal. And if it’s denied again, there’s an additional 5.1 years for judicial review by the courts.
As a result, some people have had to wait as long as 11 years for a final decision. Such delays have a devastating impact[4] on people with genuine asylum claims, who are forced to live in limbo and uncertainty for lengthy periods of time.
On the flipside, these delays have also been “motivating bad actors” to take advantage of the system by lodging increasing numbers of “non-genuine applications for protection”, according to the Nixon report[5], a review into the exploitation of Australia’s visa system by Victoria’s former police chief commissioner, Christine Nixon, which was released this week.
Read more: Visa exploitation review urges tougher penalties and a ban on temporary migrants in sex work. Would this solve the problem?[6]
The proposed changes
In this context, we welcome the A$160 million investment announced by the government today to implement a faster and fairer onshore protection system. This will increase the decision-making capacity across the whole asylum system. The funding includes:
$54 million for the initial processing of claims by Home Affairs
$58 million for the appointment of ten additional members to the Administrative Appeals Tribunal, the body that reviews claims that have been rejected
and ten additional judges to the Federal Circuit and Family Court.
Another $48 million will be provided for legal assistance to support people through the complex asylum application process – something we have long called for[7].
There is a wealth of evidence demonstrating legal assistance increases the fairness and efficiency of the asylum process. Research by the Kaldor Centre Data Lab[8] found asylum applicants with legal representation are, on average, five times more likely[9] to succeed on a merits review than applicants who represent themselves. They are also six times more likely[10] to succeed at the judicial review stage.
There is a wealth of similar research from other countries, including Canada[11], Switzerland[12] and the United States[13], showing legal representation makes the entire system more efficient.
Read more: How refugees succeed in visa reviews: new research reveals the factors that matter[14]
This is because refugee lawyers provide a very important “triage” service in the process. Their specialised understanding of the law – as well as the social and political conditions from which asylum seekers have fled – means they only take on cases they feel have merit. In this way, lawyers help reduce the number of unmeritorious claims reaching tribunals and courts.
Refugee lawyers also help asylum seekers prepare their statements coherently and systematically. They identify relevant evidence and legal principles, which assists decision-makers to focus on the key aspects of the claim.
When an asylum seeker is unrepresented, decision-makers have to spend much more time ensuring the applicant understands the process and possible outcomes. They also want to ensure the person feels they have had a fair hearing. Overall, this is an inefficient use of public resources.
Smarter use of resources
These reforms represent a significant departure from Australia’s previous attempts to increase the efficiency of Australia’s asylum processes. Over the past three decades, successive governments have instead limited the rights of people seeking asylum – including by cutting funding for legal support.
Our research[15] has made clear these efforts have almost always backfired, leading to more appeals and longer delays.
The most egregious example is the so-called “fast-track” procedure for processing the claims of certain asylum seekers who arrive by boat. Not only is the procedure unfair, but (contrary to its name) it has also been excruciatingly slow[16].
Read more: Australia's temporary visa system is unfair, expensive, impractical and inconsistent. Here's how the new government could fix it[17]
Now, to help speed up the asylum process more broadly, the government is implementing a new approach called “real-time priority processing” of protection visa applications at Home Affairs. This will involve a “last in, first out[18]” approach that prioritises new asylum applications for rapid processing.
The rationale is this will de-incentivise unmeritorious applications and abuse of the asylum system.
While this makes sense as an interim measure as the government works through its significant backlogs, we still need a wider discussion on different approaches to prioritising claims. We need to ensure government resources are being used most efficiently and in the best interests of people seeking asylum.
There are potential lessons Australia can draw on from overseas. Canada[19], for example, prioritises and fast tracks applications that have a high likelihood of success. Switzerland[20] accelerates cases with both high and low chances of success. Only complex cases requiring further investigation take longer to resolve.
To ensure fairness, Switzerland also provides universal access to government-funded legal representation. We need to spend more time examining these models to see what we can learn and adopt in Australia.
The Kaldor Centre[21] is continuing this process by hosting a conference in Sydney next month which will discuss how we can ensure fairness for people seeking protection in the decade ahead. However, the central focus of the announcement this week on increasing the quality and capacity of Australia’s asylum system is a welcome first step in the right direction.
References
- ^ announced (www.theguardian.com)
- ^ Giles (minister.homeaffairs.gov.au)
- ^ now takes around (www.refugeecouncil.org.au)
- ^ devastating impact (journals.sagepub.com)
- ^ Nixon report (theconversation.com)
- ^ Visa exploitation review urges tougher penalties and a ban on temporary migrants in sex work. Would this solve the problem? (theconversation.com)
- ^ long called for (www.theguardian.com)
- ^ Kaldor Centre Data Lab (www.kaldorcentre.unsw.edu.au)
- ^ five times more likely (www.kaldorcentre.unsw.edu.au)
- ^ six times more likely (www.unswlawjournal.unsw.edu.au)
- ^ Canada (onlinelibrary.wiley.com)
- ^ Switzerland (library.fes.de)
- ^ United States (scholarship.law.upenn.edu)
- ^ How refugees succeed in visa reviews: new research reveals the factors that matter (theconversation.com)
- ^ research (kaldorcentre.unsw.edu.au)
- ^ excruciatingly slow (kaldorcentre.unsw.edu.au)
- ^ Australia's temporary visa system is unfair, expensive, impractical and inconsistent. Here's how the new government could fix it (theconversation.com)
- ^ last in, first out (www.theguardian.com)
- ^ Canada (irb.gc.ca)
- ^ Switzerland (www.sem.admin.ch)
- ^ Kaldor Centre (www.kaldorconference.com)
