There is much debate about whether Australia should grant visas to asylum seekers who arrive by boat (the so-called “boat people”) without documentation.
Border security is now a major political issue.
Who is a refugee?
Asylum seekers apply for refugee status. A refugee is a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…"
Article 1, The 1951 Convention Relating to the Status of Refugees
How does an asylum seeker get here?
Asylum seekers can:
· arrive without authority by boat , or
· they can arrive on ordinary visas and then apply for refugee status, or
· they can be allowed to enter Australia having already been accepted as part of our authorised refugee intake.
Some people think that it is easier for boat people to avoid the security checks that apply to people who apply for asylum after entering Australia or from overseas. This is not true.
When boat people arrive at Christmas Island they go through the same security screening process as all other asylum seekers. A boat person, just like any other asylum seeker, is not allowed to come to or stay in Australia until these checks have been completed. Until the checks are resolved the boat people are held in immigration detention.
Sometimes the security checking process is more difficult because the applicant has come to Australia without passports or other identity documents. However many of the asylum seekers who apply for refugee status from overseas also do not have passports or other identity documents.
There might be a good reasons why an asylum seeker does not have identity documents. Sometimes:
1. the places where the asylum seeker comes from do not have functioning governments or an effective legal system, so it is impossible for the asylum seeker to obtain identity documents.
2. the asylum seekers might have left their country without seeking identity papers because they have a legitimate fear of the government in their home country.
Clearly Australia should not to let in people who are not who they say they are, or who pose a threat to the peace. However it does not follow that an applicant for refugee status is necessarily trying to cheat the system just because they do not have identity documents.
How does the Department of Immigration check identity, and the applicant’s claims?
These checks are rigorous and often take many months to finalise. They include an ASIO check.
The process of checking identity is often caught up in the process of verifying and assessing the claims to asylum.
If the applicant has a lawyer of other representative (such as a migration agent), the representative provides details of the claims, which the representative then documents.
As part of that process the applicant must give detailed information about their family, their associations, their activities and history, and about the reasons why they fear persecution.
The Department of Immigration then looks closely at those claims and conducts an interview with the applicant. The applicant’s representative is entitled to attend.
Australian immigration officers usually have access to detailed information about the geography and the political, religious and social conditions which prevail in the country of origin of an asylum seeker. Applicants are asked detailed questions to test whether they know the things which you would expect them to know if their claims are true. Sometimes there will be photographs or other direct information which can be used in this questioning process.
Australian embassy staff in the applicant’s country can be used to check the information. The US, UK, European and other countries also share information and intelligence.
During the interview the Departmental officer will look closely at any inconsistencies in the claims being advanced. They will question the applicant closely if the applicant does not know something you would expect them to know.
The Department’s decision
After the interview process is completed, the Department makes a decision.
If the applicant was in Australia when the application was made, the Department can grant a Protection Visa.
A Protection Visa will be refused if the Department:
· does not accept that the applicant is who they claim to be; or
· does not accept the applicant’s credibility and hence does not believe the applicant is telling the truth e.g. there are too many inconsistencies in the applicant’s story, or their claim to fear persecution is not genuine; or
· thinks that even if the applicant is telling the truth and does fear persecution, the reason for their fear is not recognised by the Refugee Convention as a reason to grant refugee status, e.g. if a person fears for their safety because the country is lawless, this does not in itself satisfy the definition unless they can also show persecution e.g. on the basis of their religion.
If an application is refused the applicant can apply to the Refugee Review Tribunal, which will look again at the claims - the fresh examination may be very detailed - and may make a fresh decision. If that process is flawed legally, an application to the Federal Court might be available.
Under Australian law an applicant who is being processed on Christmas island is deemed never to have entered Australia. In that case the decisions available to the Department are that:
· the applicant be allowed to apply for a protection visa; or
· the applicant is not entitled to make that application. This decision can be reviewed under what is termed “Independent Merits Assessment” but if this assessment is unfavourable, generally that will be the end of the line and the applicant will be returned to their country of origin.
Craddock Murray Neumann Lawyers have many years of experience assisting in all immigration matters. Phone us on 8268 4000 for assistance.