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Thursday, 30 June 1994
Page: 2461


Senator ROBERT RAY (Minister for Defence) —I table the government's response to the report of the Joint Standing Committee on Migration Regulations in Australia entitled Australia's Refugee and Humanitarian System. I seek leave to have the response incorporated in Hansard and to move a motion.

  Leave granted.

  The document read as follows—

"AUSTRALIA'S REFUGEE AND HUMANITARIAN SYSTEM:

ACHIEVING A BALANCE BETWEEN REFUGE AND CONTROL"

Recommendation 1

To assist in future decision making regarding Australia's refugee determination system, the Department of Immigration, Local Government and Ethnic Affairs monitor and keep up to date with overseas experiences and developments in relation to refugee law and processing arrangements.

Response

The Asylum Section was established within the Department in 1991 to perform inter alia this precise function. Any experiences and developments overseas which may be of interest or utility in Australia are observed closely and, where appropriate, their applicability is considered in the Australian context. On the whole, however, developments have so far parallelled those in Australia. For instance, most developed countries receiving asylum seekers have chiefly responded to increased numerical pressures by increasing processing resources and attempting to set tighter time limits on processing.

Recommendation 2

There be a thorough investigation into the consequences of the decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412, and that this investigation of processing primary decisions and the review of refugee claims be undertaken after a reasonable number of claims have been processed or a reasonable period of time has elapsed.

Response

Accepted in part. Detailed statistics are maintained on rates of rejection and approval of cases. The vast majority of refugee decisions has occurred after the Chan case. Various factors, which may change through time, affect refugee approval and rejection rates: for example the nationality composition of the caseload, compared to the nature and details of country information and the types of claims made. Each application is assessed on its own merits and it is not possible to quantify the impact which one factor, such as the Chan case, has on approval and rejection rates.

Recommendation 3

The Department of Immigration, Local Government and Ethnic Affairs monitor the workings of regulation 177 and regulation 178 safeguards and keep statistics and details on:

.the number of deportees granted refugee status;

.the number of deportees lodging refugee status applications only when asked, pursuant to regulation 178(c), if they have lodged refugee applications; and

.the time such applicants take to lodge their refugee application, the outcome of such application, and if the refugee application is unsuccessful, the delay and additional expenses incurred in their deportations.

Such details should be submitted to this Committee at the end of 12 months so that the Committee can consider afresh the terms of the safeguard in Regulation 178.

Response

The reference in Recommendation 4.8 to Regulations 177 and 178 appears to be intended to be references to Regulations 178 and 179, which have now been replaced by Regulations 7.14 and 7.15. It is assumed that the reference to Regulation 178(c), which appears to be incorrect, as 178(c) does not relate to refugee status applications, is intended to be a reference to Regulation 178(b) [now 7.14(b)].

The Compliance Computer System (CCS) and the DORS computer system enable the Department to report on the number of people against whom deportation orders have been signed who are subsequently granted refugee status.

The two systems can also provide data on the number of people who lodge refugee status applications after a deportation order has been signed against them.

The mandatory deportation power under Section 59 of the Act, and the corresponding regulations (Regulation 7.14, formerly Regulation 178), have never been employed.

The CCS and DORS computer systems capture information on the number of people who lodge refugee status applications after having been located by the Department. The delay and additional expense incurred by refugee status applications being lodged after location of an illegal entrant could be calculated on a case-by-case basis. However, as most locations do not result in long term detention of the individual, additional expenses would be minimal.

Recommendation 4

The guidelines to the review body for refugee determinations (previously the Refugee Status Review Committee, and from July 1993 the Refugee Review Tribunal) be amplified to include guidelines for that body to recommend that the Minister for Immigration, Local Government and Ethnic Affairs grant permanent residence to certain exceptional refugees as described in recommendation 5.

Response

The Government decided on 1 November 1993 that permanent residence is to be made available to all future successful onshore refugee claimants, as well as people who have been granted refugee status onshore since 1990.

Recommendation 5

The refugee cases recommended to the Minister should be restricted to those refugees who satisfy all of the following, namely that they have been tortured and traumatised and appear to have a therapeutic need to be granted the security of immediate permanent residence.

Response

See response to Recommendation 4.

Recommendation 6

The Minister's residual discretion under section 115 of the Migration Act 1958 be the mechanism for granting immediate permanent residence to a few exceptional refugees, as or as soon as there are places available within the refugee program.

Response

See response to Recommendation 4.

Recommendation 7

The policy of giving short term extensions of temporary stay to particular groups in humanitarian need be continued.

Response

Agreed. The policy of giving short term extensions of stay to particular groups for whom such extensions are considered appropriate will continue.

Currently, short term extensions of stay are in place for certain people from Sri Lanka and the former Yugoslavia. The Government decided on 1 November 1993 to provide access to permanent residence for some of these people through a new onshore permanent residence category. Applicants need to meet specific age, qualification and language proficiency criteria (and subject to health and character checks), and

  (i) wherever they resided at the time, the visa on which they entered Australia was granted before 12 March 1992, and

  (ii) have, before 1 November 1993, applied for determination of refugee status or before 1 November 1993 were granted the humanitarian temporary entry concessions available to Sri Lankans and nationals of the former Yugoslavia, or have applied for and apparently meet the requirements of the Sri Lankan and Yugoslav concessions.

Recommendation 8

Short term extensions of stay not only should be given to individuals in a class or group affected by civil disorder, but also should be considered for individuals in groups whose homes or livelihoods have been affected adversely by a major natural disaster.

Response

Consideration, on a group basis, of short term extensions of stay for individuals whose homes or livelihoods have been affected adversely by a major natural disaster has not been seen as appropriate. The impact of most natural disasters in terms of the immediate danger or threat to livelihood is usually short term and extensions of stay beyond the duration of visitor entry permits are required. There is scope within existing regulations, nevertheless, for individuals who have compelling reasons to extend their stay in Australia to apply for an extension. Such applications are considered on a case-by-case basis.

Recommendation 9

For the purposes of granting short term extensions of temporary stay, the geographical area which is affected by the civil disorder or natural disaster, and from which the particular groups in humanitarian need originate, can be either a nation state or parts of a nation state.

Response

In the case of existing Temporary Entry Permit concessions (for certain people from Sri Lanka and the former Yugoslavia) it has been both inappropriate and impractical to specify in Regulations only parts of a nation state affected by civil disorder. Extensions of temporary stay have therefore been available to nationals of a nation state regardless of their location. There is in principle no disagreement with this recommendation, however, and this approach could be adopted if it were desirable and feasible in a particular situation.

Recommendation 10

In cases where an extension or repeated extension of stay in excess of one year have been given, before any further permit extension is granted, the applicants ought to be expected to show not only that they are citizens of the country affected by the civil strife or natural disaster, but additionally that their homes, livelihood or families are in areas affected by the conflict or disaster, or that they would be required to return to the area affected by the disorder of disaster if returned home.

Response

See response to Recommendation 9.

Recommendation 11

To facilitate future decision making about Australia's combined on-shore refugee and humanitarian arrangements, the Department of Immigration, Local Government and Ethnic Affairs monitor the case profiles within the present refugee backlog so as to determine the proportion of cases which are more appropriately humanitarian claims rather than refugee claims.

Response

Accepted in principle. The Department of Immigration and Ethnic Affairs monitors the operation of the present humanitarian arrangements closely, including the numbers of cases recommended for humanitarian consideration and the Minister's decision on such cases. It would be difficult to provide estimates of which claims of applicants in the backlog could be classified as humanitarian rather than refugee related. It is difficult to make an assessment of the claims of an applicant to humanitarian stay rather than refugee status prior to deciding the case.

Recommendation 12

A senior member be appointed to the Refugee Review Tribunal with responsibility for allocating work to Tribunal members, to ensure the development and enhancement of country expertise among Tribunal members.

Response

Accepted. A senior member of the Refugee Review Tribunal, known as the Principal Member, with responsibility for overall management of the Tribunal, including allocation of cases and training of members has been appointed.

Recommendation 13

As a mechanism for ensuring consistency in decision making among Tribunal members, the senior member of the Refugee Review Tribunal be empowered to constitute three member panels of the Tribunal to consider at first instance cases which are complex in nature or which illustrate "model" case types. The decisions of such panels would not be binding on Tribunal members, but would be of persuasive authority.

Response

Accepted in principle. The need for a mechanism to encourage consistency of decision making among Tribunal members is acknowledged. The Government instead adopted the model whereby cases involving important issues of principle are referred to a Presidential panel of the AAT rather than a three person panel of the RRT. The decisions of the panel will provide persuasive authority to guide individual RRT members.

Recommendation 14

The Department of Immigration, Local Government and Ethnic Affairs establish and maintain, with the assistance of other Commonwealth Departments, particularly the Department of Foreign Affairs and Trade, a current comprehensive database, to be updated monthly, relating to every country in the existing refugee caseload.

Response

A hard-copy classified database, arranged as a series of Country Files, has existed for a number of years as a basis for DORS decision making. A replacement hard-copy database has been developed and is currently in production; this is an indexed collection of relevant, current and authoritative country information from a variety of public records and government (including DFAT) sources.

An electronic version of this new database is currently being developed. It is envisaged that this will be updated on a daily basis as additional information comes to hand. Like its hard-copy prototype, this will cover all refugee source countries, and will draw heavily on Department of Foreign Affairs and Trade (DFAT) sources and to a lesser extent on other Commonwealth authorities as well as information from other countries involved in refugee determination and from information on the public record.

Recommendation 15

The country information database maintained by the Department of Immigration, Local Government and Ethnic Affairs be available to all departmental officers and the Refugee Review Tribunal. The Tribunal should have access to all information and documentation available to the Department, including confidential security information.

Response

DIEA's present hard-copy databases of country information have been copied for the RRT, and the electronic data base now being developed will be available on-line to case workers and decision makers of the On-Shore Refugee Division and the Refugee Review Tribunal. Government-origin material in these databases is appropriately declassified to facilitate this level of distribution. Classified national security or sensitive material relating personally to individual applicants may be made available to the RRT in accordance with the appropriate provisions of the legislation governing the operations of the Tribunal.

Recommendation 16

Security information provided to the Department of Immigration, Local Government and Ethnic Affairs, along with the information sources of the Department of Foreign Affairs and Trade, be kept confidential.

Response

Most of the information provided by DFAT and other official sources is unclassified or desensitised before being entered in the country information database(s). Confidential or sensitive material which cannot be declassified must and will be fully protected.

Recommendation 17

The reasons given to refugee applicants for decisions by the Department of Immigration, Local Government and Ethnic Affairs and the Refugee Review Tribunal include the findings concerning the country situation relevant to the applicant's case.

Response

Accepted. This is the present practice which has been maintained since the establishment of the Refugee Review Tribunal.

Recommendation 18

In situations where an applicant is taken to be excluded from Convention protection on national security or serious criminal grounds, in accordance with the provisions set out in Article 1F and Article 32 of the Convention Relating to the Status of Refugees, the Minister for Immigration, Local Government and Ethnic Affairs be empowered to provide a conclusive certificate to this effect.

Response

Accepted in part. It is accepted that formal procedures are needed to apply the exclusion and non-benefit clauses of the Refugee Convention. This issue will be addressed in the context of the Migration Reform Act changes to come into effect on 1 September 1994. It is intended that the criteria for grant and retention of a visa on refugee related grounds will reflect the Convention based grounds of cessation and revocation of refugee protection and exclusion from the scope of the Convention.

With effect 1 July 1993 the Refugee Review Tribunal has been established as the review body for refugee matters. The Minister is empowered under the provisions of the Migration Reform Act which came into effect 1 July 1993 to issue a certificate rendering a particular decision unreviewable by the Tribunal. Such a certificate would be issued where the Minister believes that it would be contrary to the public interest to change the decision on grounds of prejudice to the security, defence or international interests of Australia. This provides a broad power to limit review of decisions to exclude individuals from Convention protection.

Recommendation 19

Refugee applicants be able to access any publicly available country information used by the Department of Immigration, Local Government and Ethnic Affairs or the Refugee Review Tribunal in their case determinations.

Response

As stated in the response to Recommendation 16, the contents of the databases drawn on by DORS and RRT decision makers are unclassified or desensitised, with the intention of releasing to applicants and their legal representatives copies of those extracts taken into consideration in the Decision. The very few national security or sensitive material classified information items used in case determinations must be appropriately protected, but the general tenor of their contents may be divulged to applicants as part of procedural fairness provisions.

Recommendation 20

The Refugee Review Tribunal be empowered to recommend to the Minister for Immigration, Local Government and Ethnic Affairs that, in deserving cases which do not meet the requirements for grant of refugee status, the Minister grant stay on humanitarian grounds, in accordance with the Minister's discretionary powers under section 115 of the Migration Act 1958.

Response

The Refugee Review Tribunal's role is limited to the review of refugee determination decisions and all related Entry Permit and Visa decisions under the Act. Where applicants for review before the RRT are unsuccessful their files are subsequently referred to the Department. Officers of the Department of Immigration and Ethnic Affairs are able currently to submit cases to the Minister for possible exercise of the discretionary powers under Sections 115 and 166BE of the Migration Act.

Recommendation 21

The Department of Immigration, Local Government and Ethnic Affairs ensure that any instructions relating to the recognition, referral and processing of border refugee claimants be kept up to date, be stated in detail and highlighted prominently in all procedural advice and other relevant information provided to border immigration officials.

Response

Departmental officers at Airports are aware of their responsibilities relating to the processing of persons making refugee claims. Departmental Policy Control Instruction No PC 1789 of 19 September 1991 details their responsibilities for ensuring that claimants are accorded their entitlements as announced by the Government on 13 August 1991.

Departmental instructions relating to the processing of border claimants at Australia's international airports and seaports are being updated.

Recommendation 22

The provisions in the Migration Act 1958 relating to the detention arrangements for border claimants be rewritten in a simplified and comprehensible manner. The rewritten provisions should not make legal distinctions concerning custody of border claimants based on the mode of transport which they have used to travel to Australia or their method of arrival in Australia. The rewritten provisions also should not use a variety of terms, for example prohibited entrant, prohibited person and designated person, to describe the same or similar class of persons. Rather, the provisions should use, as far as possible, a single descriptive term for border applicants.

Response

This matter has been addressed in provisions of the Migration Reform Act 1992 which will come into force on 1 September 1994. A central theme of the amendments is simplification. Existing classes of persons under the Migration Act 1958 will be collapsed into two: lawful and unlawful non-citizens. Persons unlawfully in Australia will be subject to a uniform detention regime.

Recommendation 23

Given the new expeditious processing arrangements for border claimants, the Government retain the policy of holding border claimants for refugee status in detention until such time as their applications can be processed.

Response

The Migration Act 1958 currently provides for border claimants for refugee status to be held in custody until such time as their applications can be processed. This accords with the recommendation. The Government intends to reconsider the issue of detention policy in the light of the report of the Joint Standing Committee inquiry on Detention Matters, now under way.

In the case of children held in detention under Division 4B of the Migration Act, regulations came into effect on 11 March 1994 enabling release if it is in the best interest of the child. This is in line with Australia's obligations under the International Convention On The Rights Of The Child.

Recommendation 24

The detention facility at Port Hedland be maintained to ensure that processing targets in relation to border claimants for refugee status are met.

Response

The Port Hedland facility was opened in late 1991 to hold border claimants for refugee status, those in particular who reach northern Australia by boat, until such time as their applications can be processed. This accords with the recommendation.

Recommendation 25

Priority be given to the expeditious processing of border claimants, with adequate resources to be directed to the Department of Immigration, Local Government and Ethnic Affairs to ensure that processing targets are met.

Response

The Department is already giving priority to the processing of border claimants and introduced streamlined procedures in early 1992 to further facilitate quick decision-making. The period for the processing of primary applications for the most recent five group boat arrivals has been between 2 to 10 weeks, the average being 5 weeks. Other border claimants taken into detention are given high priority in processing, both by the Department and the Refugee Review Tribunal.

Recommendation 26

Public funding be available through the Department of Immigration, Local Government and Ethnic Affairs for the provision of legal advice and assistance to border claimants in relation to the preparation of primary applications for refugee status. Thereafter, publicly funded legal assistance to refugee claimants seeking review of a refusal decision, whether to the Refugee Review Tribunal or the Federal Court, be provided via the Legal Aid Commission, based on the merits of the particular case.

Response

Agreed in part. The Government has allocated special funding for the provision of legal advice and assistance to border claimants for refugee status in relation to the preparation and lodgement of applications at both the primary and the review processing stages. Persons who are refused refugee status at review and who wish to pursue their cases through the Federal Court can seek funds through the Legal Aid Commissions on the normal means and merits basis.

Recommendation 27

The Government end the uncertainty concerning the long term future of PRC permit holders in Australia by announcing the arrangements which will be used to differentiate between those who from June 1994 will be granted permanent residence, those who may be granted a further four year temporary entry permit, and those who will be returned to the PRC.

Response

On 1 November 1993, the Government decided that permanent residence will be made available to nationals of the PRC who were in Australia on 20 June 1989, and those members of their families who have since joined them, subject to health and character checks. For the group of PRC nationals who arrived in Australia after 20 June 1989, but were granted an entry visa before 12 March 1992, there will be access to a one-off onshore permanent residence category which will be based on specific criteria (elaborated in response to Recommendation 7). PRC nationals who do not fall into either of these groups will continue to be considered under normal policy.

Recommendation 28

As non-discriminatory criteria are an important principle in Australia's refugee determination system, from June 1994, PRC permit holders should be eligible to apply as follows:

for permanent residence, on the basis of relevant universal selection criteria; or

for continuing protection, to be established on a case by case basis against internationally acceptable criteria.

Response

See response to Recommendation 27.

Recommendation 29

To assist in determining whether there is a need for ongoing protection for PRC permit holders, an in-country assessment of human rights provisions in the PRC should be prepared for use by the Department of Immigration, Local Government and Ethnic Affairs, and assurances should be sought from the Government of the PRC that those PRC permit holders who return to the PRC will not suffer discrimination or detention on their return.

Response

See response to Recommendation 27.

Recommendation 30

Those PRC permit holders who do not meet selection criteria should be granted, on expiry of their permits, a short extension of stay, say three months, to enable them to put their affairs in order and make appropriate arrangements for departing Australia.

Response

See response to Recommendation 27.


Senator ROBERT RAY —I move:

  That the Senate take note of the document.