This article is more than 1 year old

This article is more than 1 year old

Legal experts have raised concerns over the “inferior” fast-track refugee assessment process which saw members of the Tamil family from Biloela refused protection.

Sri Lankans Priya, Nades and their two daughters, Kopika and Tharunicaa, are currently in the Christmas Island detention centre, awaiting Friday’s court hearing on an injunction against the federal government’s attempts to deport them.

In public comments on the case it has been repeatedly noted that the family have been found not to be refugees, and that Australian courts have held that. However, according to legal academics, this is a misrepresentation of the legal process.

Priya and Nades arrived separately in 2012 and 2013, and were assessed separately.

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Nades had already been refused protection and so was not eligible to apply for a safe haven entry visa (Shev), which gives temporary protection for three or five years, along with Priya in 2016. Their daughter Kopika was included in the claim.

Priya’s claim was also rejected, and the rejection was upheld by the automatic review body – the Immigration Assessment Authority (IAA) – as well in appeals to the federal circuit court and the federal court, and in May the high court refused to hear their asylum case.

The IAA accepted Priya’s account of her family’s history of discrimination and harm in Sri Lanka before they fled to India in 2001, but didn’t accept that Nades had links to the Liberation Tigers of Tamil Eelam which would be of concern to Sri Lankan authorities. It noted he had returned three times between 2004 and 2010, and was able to pass through airport security each time.

Priya’s lawyers argued that in order to fully understand her case the department had to further assess Nades’s claims beyond 2011 when they said Sri Lankan authorities showed increased “interest” in him, but the IAA and courts disagreed.

Research by academics and the UTS faculty of law, found the IAA refused to find a person to be a refugee in about 87% of cases.

Comparatively, the Refugee Review Tribunal, which heard appeals against departmental rejections until 2015, upheld those refusals in about 65-70% of cases.

“The IAA is a separate and inferior decision-making process and the high rates of rejection are concerning, as they show more of a willingness to affirm the initial decision of the department, rather than allow for robust review,” the UTS lecturer Sarah Dehm said.

Non-fast-track cases now go through the Administrative Appeals Tribunal, which would invite someone in for a new interview when questions about credibility could be reassessed, and no country information introduced, Dehm said.

Thousands of unsuccessful asylum seekers appeal their cases through the courts, but those appeals rarely re-examine protection claims or hear new evidence. Many instead argue on the grounds of procedural fairness or judicial review.

Legal academics have pointed to the earlier stages of Priya and Kopika’s assessments, in particular their fast-track status and alleged interpretation issues, and raised concerns of fairness.

Fast-track status

“Fast track assessment and removal” was introduced in 2014, originally applying to boat arrivals between August 2012 and January 2014, and granting only temporary protection.

The IAA was established to hear fast-track cases, and is largely prohibited from considering new evidence.

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“Despite the ‘fast track’ name, it took nearly three years before people in this cohort were allowed to apply for protection,” wrote Jane McAdam and Fiona Chong, in their 2019 book Refugee Rights and Policy Wrongs.

McAdam and Chong said the process actually increased the risk of refoulement.

Peter Billing, a University of Queensland law lecturer, described it as an “arguably flawed” process, “offering an unconventional and limited form of review that prioritises speed over fairness”.

The departmental interview

Priya, sitting in the Anglicare office in Biloela, was eight months pregnant when she was interviewed by the department over the phone in February 2017.

The previous day she had been in hospital with a migraine. Connections in the three-way call (Priya, her migration agent and the department) dropped out.

According to the federal circuit court judgment, three days after her appeal to the IAA was refused in mid-2017, a case worker requested a transcript from the IAA, suggesting “inaccurate information” had been related by the interpreter during the interview “which formed the foundation of the refusal”.

It submitted an extract of the interview transcript:

[Delegate]: Right, okay, and when did your family decide to go to India? [Priya]: February – we came to India in 2001, February 16. [Delegate]: Right, okay. Nick, are you there? I have a feeling that your representative has dropped out. Do you want me to try and contact him again? [Priya]: Okay. [Delegate]: Okay, just hold – I’m just going to ask him if I need to connect with him if it drops out again. I don’t know (indistinct) why it would have dropped out. (Temporary sound interruption) [Migration Agent]: So it dropped out just at the point where you were saying, “What do you mean, torture?” Then I didn’t hear any more after that. [Delegate]: Right, well, we can repeat the whole interview if you like. [Migration Agent]: Rather not. [Delegate]: Right, okay, so I believe she said that they were being questioned and beaten up about her brother. That was the response. I’ll just check again. So when you said that you were tortured, what did you mean? [Priya]: Yes, so they beat us, they speak to us in bad language and treat us in bad way.

The government’s lawyers argued Priya hadn’t dropped out of the call and the interviewer could hear her. While the migration agent did drop out, they also refused to “take up the opportunity” to conduct the interview again.

Priya’s lawyers also argued she didn’t fully understand the interpreter and didn’t know if he fully understood her.

“At the time of my interview with Department of Immigration and Border Control workers, I was eight months pregnant, with medical issues which were impacting on my personal wellbeing,” Priya wrote to a caseworker some time after.

“I was also suffering from migraine and had taken the required medication in aid of this. Because of my state I don’t believe that information was fully understood.”

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The federal court found it was clear the interviewer had heard everything, including bits which weren’t recorded.

Priya was more than 160 days late in lodging an appeal to the federal circuit court, but in asking for an extension her lawyers noted Priya had given birth to Tharunicaa shortly before the IAA gave its decision. She wasn’t able to get legal advice or put in the application, they said, also arguing that Biloela was “remote” and with limited access to lawyers.

The federal court judge took into account the recent birth, but rejected their other arguments.

“A lot hangs on that one interview with the departmental official, and whether he found her story credible or plausible,” Dehm said. “They really have one shot to put forward their case for asylum.”

The family’s case now hinges on the federal court’s ruling on whether Tharunicaa’s asylum claim can be assessed.