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Joint Standing Committee on Migration
23/07/2018
Efficacy of current regulation of Australian migration agents

GRAYDON, Dr Carolyn, Principal Solicitor, Human Rights Law Program, Asylum Seeker Resource Centre

[13:38]

CHAIR: Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Dr Graydon : Thank you very much for the committee's time. It is an honour and a privilege to appear before you today, and it is a very important area that we are discussing. The Human Rights Law Program within the Asylum Seeker Resource Centre is an accredited community legal centre that specialises in refugee and asylum law, so the evidence I am giving today relates specifically to people who are seeking protection in Australia. The ASRC is a not-for-profit organisation that does not receive or accept any Commonwealth funds.

In relation to the regulation of migration agents, we see a regular volume of people who are seeking assistance in making applications for refugee status. Often they have been misadvised by either registered migration agents or non-migration agents. This often results in them making incomplete applications—as I had the benefit of hearing my colleague Mr Asher Hirsch, from the Refugee Council, explaining. It is not a forgiving system, in the sense that people have only one opportunity to put forward their case. If they have been misadvised and not articulated their claims properly—or even advised to put forward wrong claims—it is very difficult to correct that and have their claims properly assessed. That leaves us as a country not knowing whether we are fulfilling our nonrefoulement obligations under the refugee convention. If we are not in a position to have a clear picture of whether a person has protection claims pursuant to the refugee convention then we may well not be able to be satisfied that we are satisfying those obligations.

We see many people who lack trust in government processes. Many of them have histories of torture and trauma. Many of them have been abused by their governments in their home countries. So when they come to Australia it is not necessarily government messaging that they will feel immediate trust for or turn to. Like most people, they will turn to people they know around them in communities or relatives. And many times they don't speak English or have very much money either, so they are extremely vulnerable to being exploited in that situation.

We see many people who perhaps don't have the usual refugee style applications but have been fed misinformation and have come to Australia almost in a traffic like situation. They have been provided misinformation. They are working on farms or in places where they are paid very low wages and are subject to economic exploitation. They are stuck and they are in a bind. That is also a consequence of insufficient regulation around who is providing migration advice both in Australia and from overseas.

Ultimately the solution lies in providing more accessible free legal assistance. This is really a primary problem that we have. Over the years, access to free legal assistance in the migration area has diminished significantly, and that leaves these vulnerable people much more exposed to unscrupulous migration agents or non-migration agents. The largest area of complaints we see is in relation to non-registered migration agents. That is a broader problem about how information can be addressed and people can be held accountable for that misinformation. That concludes my opening remarks.

CHAIR: Thank you. We have been talking about education. You wouldn't have people applying for education visas?

Dr Graydon : We see very few people applying for any kind of education visas; it is exclusively people seeking protection.

CHAIR: Is that when they have arrived in Australia or when they are applying from overseas to come to Australia?

Dr Graydon : They are already on shore.

CHAIR: And how do they come to you?

Dr Graydon : They come through our website. Through word-of-mouth, they know they can gain ready access to free legal assistance.

CHAIR: So would they have already completed an application form as best they can, or have they used registered or unregistered migration agents?

Dr Graydon : It varies enormously. Often there are deadlines as well that influence people's decisions. Obviously people are seeking to make their applications before their substantive visas expire to prevent them from becoming unlawful and subject to immigration detention. So sometimes people are lodging holding applications or they are putting in anything—which can be very quickly rejected and then of course they have lost their opportunity to have their case properly considered at the primary stage.

CHAIR: If they give information that is incorrect or not thorough—and you said that it is not assessed at the primary stage—I assume the department is first of all making an assessment and saying they are not going to be granted refugee protection and then it ends up in the Administrative Appeals Tribunal. Is that the way it works?

Dr Graydon : Yes, that's usually correct, depending on the mode of arrival. If a person has arrived by plane, their case would be going to the Administrative Appeals Tribunal—otherwise it would be going to the Immigration Assessment Authority—assuming that they lodged their appeal within time to the AAT. I think one of the big issues is often that issues of credibility are raised at the primary stage which cannot be cured at later stages of the process. I think this is one of the real problematic areas. There is overall in the department a culture of looking for inconsistencies in people's stories, and that will also make it much more difficult for a person to later correct it, to say: 'Look, this is what happened to me. I was exploited. I've put in these claims. This is my true story.' and for that not to be held against them. I think that's another reason that holds many people back from making complaints about what's happened to them as well. They're very fearful that if they make a complaint it will have an adverse impact on their migration outcome. They are also sometimes fearful of some of these unscrupulous elements in terms of some kind of retribution that may follow from making complaints. So that whole complaint-making process, of it being directed to the department, is problematic if in fact the intention is to encourage people to come forward and make their complaints.

CHAIR: When you say 'make a complaint', are you're saying they make a complaint about their treatment, like not getting fair wages and conditions, or is it a complaint that they may be persecuted back where they go? I'm just trying to work it out.

Dr Graydon : Not the latter. We're not talking about the refugee claim in relation to persecution in the home country. I'm talking about complaining about the fact that they were exploited or provided with misinformation or provided with wrong advice in relation to their migration application.

CHAIR: I'll pass on to my colleagues. It doesn't really hold to account the unregistered migration agents and the migration agents. First of all, unregistered migration agents are not supposed to give any advice. What sort of penalties are you calling for? What sort of actions?

Dr Graydon : I think there needs to be a more proactive approach to investigating where it seems that there are patterns emerging of some kind of a racket that's going on. This can be seen from time to time. It goes in waves. It's nothing new. It's nothing unusual. But there should be a proactive position taken on investigating those matters and providing protection for the victims of these. Rather than slamming the victim through the process, see them as important witnesses, if you like, in that process.

CHAIR: So there should be some sort of encouragement so that if a victim does come forward to highlight that you may have a dodgy immigration agent they won't get prosecuted, or there should be some sort of benefit to them for raising concerns. Is that what you're saying?

Dr Graydon : Not necessarily a benefit, but that it at least won't necessarily prejudice their existing application. If in fact it's substantiated that they were exploited and they were the victim of a racket, that shouldn't be held against them in relation to their substantive claim for refugee status.

Ms VAMVAKINOU: Just to pursue that a little bit, you must come across a lot of cases where it's quite obvious that people have been given—I mean, there's unintentional wrong advice because someone doesn't know, and there's deliberate wrong advice to affect something else. If you're coming across a lot of cases, it's obviously a problem. I'm going to ask you: do you know what the percentage is? I know you probably don't, but it's clearly an emerging major issue. Does it impede the fair and appropriate processing of people's claims? It's obviously having an effect on it. How do you elicit information from someone so that they can become a witness to a potential rort? How do you do that in a way that doesn't further intimidate them? Do you have any ideas about how that might be done so that you can actually correct the process at hand?

Dr Graydon : I wouldn't like to hazard a guess at a percentage, as such. I would say that it is a substantial and serious issue. I would say as well that we still have that mix of some people who've been misadvised and others that have been deliberately misled. And in relation to how we counsel people, in that situation, we always would be counselling them that they need to correct that misinformation as quickly as possible. In terms of being able to assure them that there's going to be a fair process that's not necessarily going to impugn their entire application, that's where we struggle to provide assurance. Even though complaints are supposed to be confidential, in that sense, we see a huge range of visas being cancelled and investigations going on into sometimes quite small and consistent information that's been put forward at an earlier stage of the process.

It's an extremely sensitive issue about what a person puts in their application and then tries to change or even provides further details on in those claims later. So it is difficult to provide that confidence and assurance to people, that they will not necessarily abandon their claims for protection if they seek to make those corrections. But there's certainly no other way.

Ms VAMVAKINOU: Is that possibly because the weight or balance of perception around how we tackle those seeking protection in Australia, that public narrative, works against people thinking they can trust the authorities to come forward? It is that balance: Are you, the applicant, trying to sell us a story? And are we obliged to look after your welfare and protect you from ill-advice? Where's that balance—has is it shifted?

Dr Graydon : I think the overall narrative on people seeking asylum in Australia has certainly made it more difficult for people to confidently put forward their claims and feel they can invest their trust in the authorities who are assessing their claims. But these are not new issues, and often people seeking asylum, as I mentioned in my opening statement, have histories of abuse by their governments. It's also sometimes just a consequence of—that's the very nature; that's the reason we offer protection to people who have lacked state protection in their own countries. So it's not surprising that people come with a mistrustful view of government authorities when they first come to put forward their claims.

Mr NEUMANN: You're suggesting that we establish some robust whistleblower protections and provide free legal advice for people who want to make complaints, certainly unregistered but registered as well. You suggest an independent body be established to deal with unregistered ones. I presume you mean both unregistered as well as education agents.

Dr Graydon : I don't really have anything to offer the committee, in relation to education agents. It really doesn't come up in our work.

Mr NEUMANN: So MARA would deal with the registered agents and this new body, you're suggesting, would deal with unregistered agents, which shouldn't even exist in the first place.

Dr Graydon : I think in our recommendations we're also suggesting that with MARA's powers they also be focused on the kinds of remedies that victims in that situation are seeking, whether it is in relation to refund of the lost legal fees that may have been paid. They would be equally in need of witness protection if, in fact, they were the victim of some kind of ruse that resulted in their visa application being adversely affected.

Mr NEUMANN: What I'm looking for is a pathway, as I said to previous speakers, as to what you would recommend. There's the option of the Aged Care Complaints Commissioner, which has been in operation since early 2016. But then MARA should form something like that with registered migration agents, which, on the evidence we've had, are overwhelmingly ethical and moral and dutiful in what they do—not all of them. It's like in our profession or with lawyers and doctors. Not everyone does the right thing all the time. But do we set up a new body? I just don't know. Isn't it the political will to clamp down? Isn't that what needs to happen? If so, shouldn't the Department of Home Affairs be doing this? Isn't that the best way forward?

Dr Graydon : I agree we don't want a major splintering of lots of little bodies so that no-one's clear about who to go to for what when we're talking about quite similar issues. Whether a person is technically registered or unregistered, from the victim's perspective the harm is the same. In relation to it being a government responsibility, certainly, in terms of the messaging, warning people away from unscrupulous non-migration agents is something that should be taken up as an education issue, as you've certainly suggested already. But, in relation to the receipt and investigation of complaints, that's where the independence is important in order to have the confidence of people to make those complaints and to know that their rights will be protected.

Mr NEUMANN: Who does it now, though, if that's the case, if it's not OMARA? Say someone sees the Asylum Seeker Resource Centre. Joe Bloggs is living in St Kilda and he's this unregistered migration agent. A lady comes to see you. You know about Joe Bloggs down there at St Kilda and you say, 'Right, let's complain about him. He's unregistered.'

Dr Graydon : Yes. If he's unregistered, then the complaint goes to the Department of Home Affairs, and we have our website, which is where people can lodge their complaints, which is headed 'Border Watch—report something suspicious'. Complainants then have to select the tab titled 'Report suspicious immigration activity' and provide details of the offence from a long drop-down table of other offences—

Mr NEUMANN: In a non-user-friendly manner.

Dr Graydon : Yes, as though the person who's trying to make the complaint is somehow not the victim of suspicious activity.

Mr NEUMANN: So the complaint's more difficult to navigate than the actual application for asylum.

Dr Graydon : Yes, especially when the person is already feeling like they've being trapped into putting forward their application, and it's the very same body that's going to be determining that application. That's where there's that disconnect, and that's the issue that needs to be addressed. So who does the prosecuting ultimately or where does the actual ultimate accountability for that lie? That could well be a government function. But in terms of who receives the complaints, who investigates the complaints and who protects the victim's interest throughout the complaint process, that's where a measure of independence is needed.

Mr NEUMANN: So you've got a department that assesses and determines the status of a person seeking asylum, seeking refugee status. At the same time it receives the complaints, does the investigation and potentially does the prosecution. Is that what you're saying?

Dr Graydon : Yes, that's right.

Ms VAMVAKINOU: I'm reminded that we were taken through a similar process in Sydney last week where, on the issue of unregistered education agents, people did make complaints online and never got any response at all. They'd no idea what was going to happen, if anything. Have you got similar experiences with that online complaint system?

Dr Graydon : Yes. Where people have had the courage to go forward and make a complaint, the feedback we've received from them is that it's not very responsive and that they don't know what's happening with that or what the outcome was.

Ms VAMVAKINOU: So no-one gets a sort of thank you for this whatever—nothing; no response. You just go online and tick a box.

Dr Graydon : I couldn't testify as to whether they receive a receipt-of-complaint email. But, in terms of the substance of the complaint process and what's going on with it, I think it lacks responsiveness.

Mr NEUMANN: Why don't we give it all to OMARA and say, 'OMARA, this is your job. You've got registered migration agents, unregistered migration agents, education agents. Do your damnedest. This is your job.' Beef it up with legislative power. You're independent from the department—well, you're not really, but you know what I mean. Or you take it from the department, like the current government did with Labor's support on the Aged Care Complaints Commissioner, which I thought was a good initiative of the current government.

Dr Graydon : Yes. There are many possibilities in terms of how to have that level of independence without splintering the sector so much that it just becomes confusing—you need an adviser to tell you where you need to go to make your complaint! We don't want to create that situation.

Mr NEUMANN: That may be the way. That's what your government did on aged-care complaints when I was the shadow minister for ageing.

Dr Graydon : It's key, but I also think that the front end of things is really key as well. If there were more free specialist services able to provide advice up-front, then there would be much less of this as a problem to deal with.

CHAIR: How many complaints do you deal with where you realise the form has been basically completed wrongly? Then you have to obviously deal with that form in those areas and it goes through an appeals process. How successful are you in getting that overturned? I'm thinking: how much in taxpayers dollars is used in appeals and, obviously, in your services, too?

Dr Graydon : We see them frequently—several every week, I would say. In terms of being able to correct those mistakes from the beginning, it's very difficult. A very high percentage of people's applications would fail, even where, in fact, their real grounds were much stronger than the grounds that they were misadvised to put forward. The tragedy is that we may well have people that we owe protection obligations to slipping through the cracks and being returned to situations of persecution.

CHAIR: So we need stronger penalties at the start to stop the incorrect advice. That's something for the committee members; we'll work that out.

Mr NEUMANN: Simpler forms and stronger penalties.

Dr Graydon : Yes. In fact, that was our first and foremost recommendation—that migration law has become so complex and so difficult for members of the public to understand, let alone for applicants from non-English-speaking backgrounds. Even for specialised migration agents and lawyers, it's very dynamic and very complex, and one can't help but think that there could be clearer, more simple systems that would also reduce this potential for exploitation.

CHAIR: Thank you for your attendance here today. If the committee has any further questions, they will be put to you in writing. You will be sent a copy of the transcript of the evidence and will have an opportunity to request corrections to transcription errors. Thank you very much. We'll just have a short break.

Proceedings suspended from 14:01 to 14:13