Jeans Lawyers

REFUGEE CLAIMS SYSTEM NEEDS MAJOR REFORM

Herald Sun, Opinions, Thursday 5 April 2018

The onshore refugee status determination system in Australia is broken. 

It was implemented in the early 1990s for the caseload of applicants at that time. 

But  now, it results in thousands of migrants who arrived by boat from Sri Lanka, Iran, Iraq, Afghanistan, Palestine, Bangladesh and Pakistan being accepted as refugees, when they are economic migrants for whom we have no protection obligations. 

Between 2008 and 2013, 45,250 migrants arrived by boat and applied for protection.  Some 14,800 or 88 percent of those first processed were granted a protection visa, mostly permanent, according to figures from the Australian Parliamentary Library.

Internal Department of Home Affairs figures from November 2017 show that more than 10,000 of the 32,250 unresolved boat arrivals have been granted a temporary protection visa.

(The time periods here overlap because of financial year statistics.)

Some 15,000 remained unresolved, coming from Iran (5800), Sri Lanka (3800), stateless (2200), Afghanistan (1800), Pakistan (1100), Iraq (800) and Vietnam (400). 

Of the remaining, 1,700 are on appeal to the Immigration Assessment Authority, while 3,600 have been refused and are likely to have appealed to the federal courts.  Appeals to those courts in Melbourne face a three-year backlog.

On current trends, that means about 38,000 migrants who came by boat will eventually stay here permanently.

The purpose of the Sri Lankans coming to Australia by boat was for economic reasons.  Many were fishermen from the west coast which was unaffected by the civil war that ended in 2009.   

The people of Iran have suffered from international sanctions, their currency has collapsed and future prospects bleak. 

The Iranians have, in their thousands, sought out well-meaning but naïve Christians to help them stay in Australia.  They have attended churches and undergone fake baptisms, in an attempt to convince the churchgoers and decision-makers that as “Christians”, they will be persecuted in Iran.  Others pretend to be homosexual.  Even after exhausting all appeals, we cannot remove them because Iran does not accept forced returnees.

The Afghan applicants have been living safely in Pakistan or Kabul for decades, with their own schools, houses and businesses. 

As for the Pakistanis, Bangladeshis and Iraqis, apart from a handful of Christians and minorities, they can live safely throughout their respective countries. 

Those who claim to be “stateless” turn out to have a nationality, on closer inspection.

The current rate of acceptance of the most recent boat arrivals is 60 percent. 

A more realistic rate of acceptance is 2 percent, after giving the benefit of the doubt.  Instead of up to 38,000 visa grants, it should be around 900. 

The migrants arriving by boat are supported by advocates within the community.  None of these groups have credible first-hand experience in how the system has failed or is being manipulated.

The migrants arriving by boat have significant levels of fraud in claims, identity, employment history, residence and family composition.  In many cases, we have no idea who they are.

The high level of visa grants is a result of the failures in the system and not the strength of claims. 

First, boat arrivals have government-funded migration agents/lawyers who are sympathetic and assist them to enhance their claims.  Many applicants had no idea about many of their claims.

Second, immigration officers conducting protection visa interviews lack training.  Few know how to conduct interviews and assess credibility.  The primary stage decision-making does not withstand objective scrutiny. 

Third, lawyers worked out that by applicants making up to 20 claims, however false or implausible, the case becomes very complex.  This made the case very difficult to assess and refuse.  

Fourth, if all the numerous claims are all dealt with the tribunal member or IAA officer will not meet their annual target because they will take more time than allowed by the management. 

Fifth, some Tribunal members were biased towards the migrants, despite knowing the claims were false.  Many have recently been reappointed until 2024.

All these factors, perhaps a “perfect storm”, have combined to create high levels of visa grants for migrants arriving by boat.

Everyone agrees we should assist refugees who are in need of Australia's protection.

However, the processing of migrants who arrived by boat between 2008-2013 has exposed the failure of the refugee legal system, instead offering residence to migrants who are not refugees. 

Only a complete reform can provide a new system to deal with the next 25 years.

Simon Jeans is a specialist in immigration law in NSW and has worked for the Jesuit Refugee Service, RACS, UNHCR and Legal Aid

OFFICIALS FACE LIES AND FALSE DOCUMENTATION

The Mercury, Talking Point, Tuesday 10 October 2017

http://www.themercury.com.au/news/opinion/talking-point-officials-face-lies-and-false-documentation/news-story/439e707a8884b88c06d7db4ca126ca1a

GREG Barns demonises Immigration Department case officers and Immigration Minister Peter Dutton based on slogans and no credible evidence (Talking Point, September 25).

Mr Barns wrote: “The Immigration Department presides over and feeds daily a culture of cruelty.” He described them as the “most sinister and dangerous group of bureaucrats in Australia”. He described Minister Dutton as a “common, garden variety authoritarian”.

These allegations reflect poorly on the opinions of Mr Barns because they fly in the face of the reality facing Mr Dutton, Department of Immigration case officers and Tribunal decision-makers.

As a member of the Migration Review Tribunal and Refugee Review Tribunal between 2010 and 2015, I reviewed decisions of immigration case officers.

What I found is that case officers are routinely facing a barrage of oral and written lies, false documents, criminal activity, people giving false evidence in statutory declarations, false identities and overseas students using the system to reside and not study.

For example, the market price to bring in a fake spouse is $100,000. It is a significant problem in the Chinese, Vietnamese and Fijian Indian caseload.

In one case, I found that a man had paid money as a fake spouse to get a visa; that meant he could bring his parents here; then he sponsored his brother who pretended to be single to meet the last remaining relative criteria, but was actually married; and the real wife of the man had sponsored another man on a fake spouse visa.

The boat arrivals between 1999-2001 and 2009-2013 provide another example of the massive fraud faced by the Immigration Department.

During the first period, I worked as a lawyer in the detention centres of South Australia and Western Australia. The main group of arrivals were Afghan citizens. They had all been living safely in Pakistan.

Most had left as children by 1996 when the Taliban took control and gone to live in Quetta, Pakistan. They had their own schools, houses, businesses and were at no risk of harm in Pakistan. But they all claimed to have just fled Afghanistan from the Taliban. It was nonsense.

The Immigration Department later started an investigation by sending people to Quetta with photos of the boat arrivals, with a view to identifying them and cancelling their visas, but that became too dangerous after September 11, 2001, and the subsequent conflict.

The main group of arrivals after then prime minister Kevin Rudd opened the border were also Afghans living safely in Pakistan, fishermen from Sri Lanka, Sri Lankans living safely in India, and Iranians.

The Sri Lankan fishermen were mostly from the west coast and untouched by the civil war. They had previously gone to work in the Middle East, but after a downturn in construction there were fewer jobs. So they got a boat to Australia.

The Iranians left Iran legally, not easy with the controls of that regime, and were escaping poor economic conditions caused by international sanctions.

Hundreds have since pretended to convert to Christianity and are supported by well-meaning but naive priests and pastors. Others pretend to be a member of a minority, the Faili Kurds, while other pretend to be homosexual.

The website which reports decisions, www.austlii.edu.au, shows that almost all the refugee cases rejected by the tribunal are done so on the basis of credibility, which is a polite way of saying the applicant lied under oath.

Sometimes the lies and false documents are too hard to deal with or too time consuming.

In the High Court case of S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, two men from Bangladesh claimed to be in a homosexual relationship. Four different members of the Refugee Review Tribunal had rejected the case, mostly because they found the applicants were lying and were pretending to be homosexual.

On appeal to a federal court, each decision was remitted to the tribunal because of a legal error. The case remained dormant for more than a year, after which the then principal member conducted a two-hour hearing and allowed the appeal, effectively granting them visas. She handed down the decision in the first week of January 2015.

It is quite common for applicants to “kill off” their relatives to meet visa criteria, such as being an “orphan relative”. In one case I reviewed at the tribunal, the sponsor gave sworn evidence her parents had been killed in Kabul during a rocket attack. A witness came to the hearing and swore he was at the funeral. However, a disgruntled person in Afghanistan had provided photos of the parents, very much alive, and an investigation in Kabul proved the father ran a pharmacy.

I have found in my 27 years as an immigration lawyer that people who lied in visa applications did not retire.

They went on to lie in other systems: social security, tax, workers compensation, personal injury, motor vehicle insurance, first-home buyers’ schemes, car registration and public housing. They also made their way back to the immigration system with a fraudulent case, such as fake spouse.

The minister and Department of Immigration officers are facing an avalanche of lies, false information, false documents, criminal behaviour and potential terrorist threats.

Rather than make allegations without credible evidence, armchair critics such as Mr Barns should support the minister’s efforts to keep Australia safe.

Simon Jeans is an accredited specialist in immigration law in New South Wales. He has worked for the Jesuit Refugee Service, UNHCR and Legal Aid (NSW). He was previously a member of the Migration Review Tribunal and Refugee Review Tribunal.


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