Everyone should have the same right to appeal ASIO assessments

Proposed amendments to the ASIO Act introduced into Federal Parliament today would ensure that refugees indefinitely detained on the basis of ASIO security assessments would have the same right to appeal those assessments as everyone else.

The HRLC strongly supports the proposed changes, introduced by Andrew Wilkie MP, and a number of other groups including security chiefs, libertarians and the UN Human Rights Committee have also previously called for reform.

The HRLC’s Director of Legal Advocacy, Daniel Webb, said that while Australian citizens and permanent residents can appeal ASIO decisions and have the right to a summary of the reasons for their negative assessment, refugees are currently denied both of those basic rights.

 “There’s no other context in Australian law where a person can be indefinitely detained on the basis of a secretive decision that’s never explained to them and which they can’t appeal,” said Mr Webb.

While the appointment of an Independent Reviewer, retired Judge Margaret Stone, to review refugees’ ASIO security assessments has provided some limited scrutiny and oversight, outcomes from the Stone review are not binding or enforceable. Further, it is a non-legislative process and refugees continue to be denied the legal right to information about the basis on which their negative assessment was made.

Mr Webb said the Stone review process was therefore inferior to the legally binding right of appeal open to non-refugees.

“We can appeal parking tickets and public transport fines in this country. Surely entire families who’ve been locked up for years should have the basic legal right to appeal the decision keeping them in detention.”

There are currently 44 people indefinitely detained after being given adverse security assessments.  The HRLC and leading law firm King & Wood Mallesons previously assisted a Sri Lankan man and his family who were detained for four years on the basis of an ASIO assessment that was subsequently reversed.

The man, a chicken farmer from the north of Sri Lanka, arrived in Australia in July 2009 after he and his family escaped the conflict in which both his father and brother were killed. They were quickly found to be refugees in need of protection, yet the family – including the man, his wife and their three young children – languished in detention for four years due to an adverse ASIO assessment.

Suddenly, on the eve of a High Court case testing the lawfulness of their treatment, ASIO revoked its negative assessment after a recommendation from the Stone review and the family was released.

“An entire family spent four years locked up on the basis of an ASIO decision that was subsequently reversed. If they had the same legal right to appeal ASIO assessments as everyone else in this country, perhaps they would have been released four years sooner and three young children wouldn’t have spent their childhoods in immigration detention,” said Mr Webb.

Security chiefs, libertarians and the UN have all called for reform

In 2007, the Inspector-General of Intelligence and Security, Ian Carnell, called for refugees to be given the same right to appeal ASIO assessments to the Administrative Appeals Tribunal (AAT) as everyone else.

In his 2006-2007 annual report, Mr Carnell wrote, “My predecessor had recommended that the legislation be changed to provide for AAT review for refugee applicants… This was not taken up at the time but I think it would be worthwhile revisiting the proposal. The number would be very small (hence cost should not be a barrier) and there would be greater public assurance that a sensitive group of cases have been carefully examined.”

Chris Berg, Policy Director at the Institute of Public Affairs, has described indefinitely detaining refugees on the basis of secretive and non-reviewable decisions as “fundamentally and egregiously illiberal”.

“The issue here is not simply about justice for the 50-odd refugees stuck in this administrative black hole. By not implementing a right for refugees (or their security-cleared advocates, or a tribunal) to question the merits of individual cases, we have, by accident, established a system where we literally lock people away forever just because somebody at ASIO ‘reckons’. It’s hard to imagine anything more illiberal,” says Berg.

In August 2013, the UN Human Rights Committee delivered a decision in which it found Australia had committed 143 serious violations of international law by indefinitely detaining 46 refugees on the basis of secretive and non-reviewable ASIO assessments. The UN asked Australia to report back within 180 days on steps taken to ensure such injustices never happen again.

One year on, Australia still hasn’t responded to the UN judgement.

Mr Webb said the Government could no longer ignore the clear need for reform and urged it to support the new Bill.

“Security chiefs, libertarians, the UN and human rights lawyers have all highlighted the urgent need for the law to be changed,” said Mr Webb.

“This Bill doesn’t require that anyone be released from detention. Nor does it limit the important role ASIO plays in protecting national security. It simply ensures all people have the same basic right to appeal ASIO security assessments and to a summary of the basis on which it was made,” said Mr Webb.

“It is a simple but urgently needed reform.”

 For further information or comments contact:

Daniel Webb, Director of Legal Advocacy, on 0437 278 961 or daniel.webb@hrlc.org.au