The rights of refugees shouldn’t be contingent on secretive, non-reviewable ASIO assessments, the HRLC has said in a submission to the Legal and Constitutional Affairs Legislation Committee.
The Committee is currently conducting an inquiry into proposed amendments to the Migration Act which would make eligibility for a protection visa dependent on not being assessed as a security risk by ASIO.
HRLC Director of Legal Advocacy, Daniel Webb, said that the proposed reforms entrench ASIO assessments at the centre of refugee processing but contain no safeguards to make sure the security assessment process is fair. Refugees have no right to appeal ASIO’s decision or to an explanation of the reasons behind it.
“It is vital that profoundly important decisions affecting the lives and liberty of vulnerable people be made through a process that is fair, transparent and accountable. The ASIO security assessment process is anything but” said Mr Webb.
The Immigration Minister already has broad powers to refuse visas to refugees on security and character grounds. The proposed reforms go further by making not being assessed as a risk by ASIO part of the legal criteria for protection in Australia.
Under the proposed reforms, refugees given a negative assessment by ASIO would be denied protection and could be left languishing in detention indefinitely, unable to return their country of origin and unable to find a third country willing to resettle them.
The HRLC’s submission notes that while Australian citizens and permanent and special purpose visa holders have the right to appeal ASIO assessments to the Administrative Appeals Tribunal, protection visa applicants don’t.
“The stakes are higher for refugees, yet their procedural rights are fewer. Rather than addressing this fundamental inequality, the proposed reforms would entrench it. In no other context in Australian law can a person be indefinitely locked up on the basis of a decision which they can’t challenge and that’s never properly explained to them” said Mr Webb.
The HRLC’s submission made the following recommendations:
- Applicants for protection visas should be afforded the same legal right as citizens and permanent residents to seek merits review of ASIO security assessments in the Administrative Appeals Tribunal.
- There should be legislative provision for regular (i.e. at least 6 monthly) consideration of whether the deemed security threat posed by a person can be addressed in manner less harmful and restrictive than detention.
- The national security grounds on which a protection visa may be refused should be confined to the exclusion grounds under the Refugee Convention.
A copy of the HRLC’s submission can be found here.