Migration (Fast Track Applicant Class – Temporary Protection and Safe Haven Enterprise Visas) Instrument 2019 - Disallowance

11 November 2019

Centre Alliance supports this disallowance for the simple reason that this instrument will otherwise strip temporary protection visa holders and safe haven enterprise visa applicants of due process simply to ease the workload of the Department of Home Affairs and the Administrative Appeals Tribunal. If this latest fast-track instrument is allowed to stand, it will redirect appeal cases away from the AAT, which is struggling to manage its workload, and put them before the Immigration Assessment Authority, which effectively only reviews cases using information shared by the department. A fast-track appeal is pretty much a tick-and-flick review process. The IAA does a quick paper review that does not allow for additional or new information except in exceptional cases, and it has no obligation whatsoever to hear directly from the visa applicant. It would mean all temporary protection visa and safe haven enterprise visa applicants, as well as holders of these visas who seek to renew their TPVs or SHEVs, will no longer have access to the full and independent merits review process. This creates a real risk that refugees in need will be wrongly denied protection. It means they can be returned to persecution or other serious harm. This is highlighted by research from the University of Technology Sydney that shows that the Immigration Assessment Authority, unlike other review tribunals, upholds the vast majority of decisions. As I said, it's very much a tick-and-flick exercise. The UTS research found the IAA has upheld 87 per cent of decisions since 2015. After undertaking its limited reviews, the Immigration Assessment Authority came to the same finding as the department in almost nine out of 10 cases, effectively being a rubber-stamp organisation. This compares to appeals made under the former Refugee Review Tribunal process, in which about 65 per cent of decisions were upheld. In its report, Lives on hold, the Human Rights Commission paints an even starker picture. It said that, between June 2009 and June 2013, merits reviewers upheld decisions for only 20 per cent of asylum seekers who arrived by boat.

Last month I read a very good piece on The Conversation titled, 'There's no airport border "crisis", only management failure of the Home Affairs department'. This piece detailed the staffing and management problems in the department and how poor decision-making at the primary level was causing backlogs in the AAT. The article made the case that government favouritism in stacking the AAT with political allies lacking the proper expertise had led to more errors by the AAT, more appeals to the courts and delays in finalising cases. The chaos within the department and inappropriate AAT appointments are not problems that should be shifted to clients. It's a mess the government needs to clean up without impacting the people who have a right to have their cases properly heard.

The fast-track process was set up for a limited purpose, which was to help the department clear a backlog of maritime arrival cases, and legislation was required to make this process happen. In late 2014 former senator Nick Xenophon agreed to support the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which introduced fast-tracking processing, but he did so on the basis that it would only apply to the intended cohort of asylum seekers who arrived between August 2012 and January 2014. He made that expressly clear at the time. But we've all seen how this government likes to take advantage of every inch it is given. Since then, the government has used delegated legislation such as the instrument we are now debating to steadily expand the fast-track process to more and more categories of visa holders. Many, by no means all, of the current cohort of TPV and SHEV holders belong to the original legacy case load who had their claims assessed under the fast-track process. Their claims were obviously found to have merit at the time. They will likely continue to be found to have merit. In cases where the department challenges or rejects their claim, they and any other TPV or SHEV applicant should very much be permitted a proper and independent review process.

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