Bad news came always in a brown envelope. Those carried negative decisions, Sister Aileen Crowe says: the application for protection was rejected.
Over two decades, Crowe, a Franciscan nun, has lost count of the number of envelopes she has opened alongside anxious asylum seeker families, lost count of the number of hours spent pacing departmental halls waiting for the all-or-nothing assessment interview, lost count of the number of appeals she’s shepherded through Australia’s labyrinthine appeals process.
Later, the brown envelopes would be replaced by an email addressed to Crowe.
She would never forward them on, but would always print them out and take them round to their intended recipients “because someone needed to be present to provide a cushion to prevent further bruising.
“These experiences of a flawed system always led to frustration, anger and pity.”
The Australian government’s system for assessing asylum claims is sclerotic and capricious, unfair and unpredictable, Crowe says. It leaves vulnerable people drifting in limbo for years while decisions are made and contested, re-made and re-contested. And it sometimes sends people back to harm when applications ultimately fail, back to the lands they fled escaping persecution.
“The vulnerable feel more unsafe and become more fearful of the all-powerful government and so the… fear is perpetuated,” Crowe writes in her book, Acts of Cruelty.
She emphasises the “luck of the draw” for asylum seekers before the controversial administrative appeals tribunal, contingent upon which tribunal member they were drawn.
“I used to call it Russian roulette,” Crowe tells the Guardian.
“And that used to terrify people, the fear of these decisions being made that would determine the rest of their lives, it had nothing to do with the evidence they presented that they faced persecution, it was just luck on who was hearing their case.
“There was no compassion, there was no care, people were just pawns really to be pushed around for political benefit. I have an acute sense of injustice, and that’s what I saw, injustice.”
An arcane and complex process
Australia’s asylum assessment process involves a number of appeals stages.
People who arrive in Australia and claim asylum initially have their application for a protection visa assessed by the Department of Home Affairs.
If that application is unsuccessful, asylum seekers who arrive by plane can seek review at the administrative appeals tribunal. The AAT reassesses the merits of the case and tribunal members can decide to issue a visa.
(Asylum seekers who arrived by boat are put into the so-called “fast-track” process. Their claims cannot be appealed to the AAT, instead they can lodge an appeal with the immigration assessment authority (IAA). Critically however, this is a much more limited review of their application, usually done “on the papers”, without an oral hearing.)
If applications are still rejected by the AAT or IAA, asylum seekers can seek judicial review at the federal circuit and the family court. The court challenge is not a review of the merits of the protection claim; the court can only deal with the narrow question of whether the tribunal made a legal error in making its decision. If the court finds there was error, it cannot issue a visa, but only remit a matter back to the AAT for reconsideration.
Asylum seekers can, at a final stage, also seek a ministerial intervention in their case.
The data from 18,000 decisions
Crowe’s two decades of experience supporting families through the immigration asylum process is borne out by new data, revealing massive inconsistencies in asylum claim decision-making, and huge disparities between individual decision-makers.
New research led by Dr Daniel Ghezelbash, the deputy director of the Kaldor Centre for International Refugee Law at the University of New South Wales, covers more than 18,000 protection visa decisions made by the AAT between 2015 and 2020, obtained under freedom of information laws.
Asylum seekers were granted a visa – effectively overturning the department’s rejection – in 14% of cases.
But there were massive disparities between individual decision-makers.
Some tribunal members granted visas in 89% of cases – that is nine times out of 10 – while other decision-makers never granted a visa.
Applicants for protection were nearly twice (1.81 times) as likely to be granted a visa if they appeared before a tribunal member appointed by a Labor government, compared with those appointed by a Coalition government.
Applicants from some countries fared better than others: Libya, Afghanistan, Ethiopia, stateless people without citizenship (such as Rohingya from Myanmar), Iraq and Iran had high rates of success.
But even within those country cohorts, the chance of success varied massively. Overall, Iranian asylum seekers received favourable decisions in 49% of cases. But, depending on the tribunal member making the decision, the success rate was between 0% and 93%.
And legal representation makes a key difference. The data show an applicant who appears with a lawyer is seven times more likely to receive a favourable protection claim decision.
Ghezelbash urges caution in drawing conclusions on specific decisions or their makers, saying some discrepancies could be explained by some tribunal members specialising in cases from particular countries, or even types of cases from particular countries.
This was echoed in the AAT’s response to the publication of the data. “It is critical to understand the context in which data should be viewed,” a spokesperson said. “Each case is decided on its unique and individual facts, which cannot be captured by statistics alone.”
But Ghezelbash argues that “while clearly statistics do not capture the nuance of every case, they can provide broad insights into the way the system is operating”.
He says using publicly available data to assess the actions of courts and tribunals “is healthy for democracy” and boosts public confidence in these institutions.
“It can also provide an evidence base for reforms that ensure the system is operating as fairly as possible.
“This is particularly important when it comes to deciding refugee claims, where the stakes are so high. A wrong decision can lead to a person being sent back to a country where they may face serious harm or even death.”
Politicisation of the system
The inconsistencies of tribunal decisions raise serious questions about the operation of Australia’s appeals boards – the AAT in particular – and highlight the issue of politicisation.
The AAT holds a broad remit, reviewing government decisions under more than 400 commonwealth acts, making rulings on citizenship, child support, social security, the NDIS, workers’ compensation, as well as migration and refugee cases (by far the largest category).
A seat on the tribunal is an attractive position, powerful and well-paid: salaries range from just under $200,000 to nearly half a million dollars a year.
But a Grattan Institute report found 22% of the AAT’s 320 tribunal members have a direct political connection to the party of the government that appointed them.
The AAT president recommends appointments, but the attorney general is also able to nominate people outside this process – and appoint them without justification.
“This provides the opportunity for ministers to nominate political friends and colleagues, without them going through a merit selection process,” the Grattan Institute report argues.
In March, the Senate standing committee on legal and constitutional affairs said the growing politicisation of the AAT had eroded trust in the body, and “brings into serious doubt whether the AAT can be fully independent, and its decisions trusted”. It argued the AAT be abolished.
“The AAT is not working, and the merits review system in Australia is being failed by a Tribunal which does not function effectively, efficiently or transparently,” the committee’s report said.
The attorney general, Mark Dreyfus, has said he wants a “return to a transparent and merit-based appointment system … for the administrative appeals tribunal”.
Dreyfus said it was imperative the tribunal held public confidence, and that members were installed “not on a whisper basis”.
In its response to the committee’s report, the AAT said it “remains committed to providing a mechanism of review that is fair, just, economical, informal, quick and proportionate to the importance and complexity of the case”.
Systemic problems within the AAT are neither new, nor previously unarticulated: in 2018, the former high court judge Ian Callinan reviewed the AAT and recommended all appointees be legally qualified, and appointed on merit. The increasing backlog of cases – currently beyond 32,000 refugee cases, with fewer than 5,000 finalised last year – and chronic underfunding are also perennial issues.
Crowe argues there is a core problem: Australia’s asylum system is dehumanising. People are reduced to objects, she says, by the bureaucratic process, and its language of applicants and delegates, processes and systems.
“The end result of ‘the process’ or this system is a group of traumatised people – more traumatised even than when they first arrived,” she writes.
“‘The Applicant’ is a person like you and me, a neighbour, a person in the checkout queue at the supermarket, the driver at the traffic lights. An ‘Applicant’ is not an object without a name, devoid of deep feelings, or without agency.”
