The injustices and cock-ups in the mandatory detention system

Yesterday’s Law Report provides useful context for last week’s High Court decision that overturned the unjust process put in place by the ALP and the Liberals for dealing with asylum seekers who arrive by boat.

(Please excuse the following large slabs of quoted material; believe me, the details are both interesting and outrageous.)

First, who’s actually been making these life and death decisions:

This process, under this offshore processing regime, involved the engagement of reviewers, so-called independent reviewers by the government under contract with a company called Wizard People. So essentially Wizard People provided the services of reviewers to the government to make decisions on review from refusals by departmental officers to essentially review afresh whether or not a person, an asylum seeker claiming to be in need of protection from persecution, should be recognised as a refugee.

Yes, that’s a private company you’ve never heard of reviewing departmental decisions in relation to one of Australia’s most serious international obligations.

Wizard People: incompetently processing asylum seekers on your behalf

And how they’ve been acting unjustly, as explained by one of the asylum seekers’ lawyers:

…essentially the High Court unanimously ruled that the decisions on our clients’ cases were unfair and unlawful, because the government was not applying ordinary Australian laws to decisions on these life or death matters. In particular, the court identified errors of, for example, procedural fairness, that is, a denial of natural justice, whereby critical sources of information, that is, country information reports which were relied upon heavily to refuse our clients, were never provided to our clients for comment prior to them being used or relied upon in decisions to refuse them. So that was one of the errors that’s a denial of procedural fairness.

Another denial of procedural fairness which was identified was the failure by a reviewer to consider a claim for refugee protection which, in and of itself, could constitute grounds for refugee protection. This claim involved a claim by our client that he would be persecuted because of his membership of a social group, namely Tamil business owners, or Tamils who are perceived to be wealthy.

Submissions were made by our organisation, by our client’s legal representative about this matter. There was specific evidence put in statutory declaration form about these claims and yet there is no evidence whatsoever that the decision maker, even considered let alone grappled with this claim. This claim was put and there was also country information provided to the decision maker, which supported a conclusion that he could be targeted by reason of membership of this social group.

There have been even worse injustices:

One of the examples that I can think of here is the situation where a date on a critical letter, a letter involving our client’s claims of fear of persecution at the hands of the Taliban, the date on the letter itself was wrongly converted. There are different calendars in Afghanistan and the wrong calendar conversion was used, which resulted in our client, who had alleged that the letter was dated in the year 2000, having a conversion which resulted in the letter being found to be dated later than that. The problem was simply one of using the wrong calendar for conversion, and yet the person was refused on the basis of having provided a document which lacked credibility. If the concerns about credibility and the discrepancy in conversion dates had been put to this person for comment, the matter ought to have been resolved, and it ought to have been clear that it was simply a mistake in the conversion of dates. Instead what resulted from the failure to put this information, to put these concerns to the client, was that they were refused without any opportunity to respond, in circumstances where their credibility was impugned and was destructive of the overall claims for refugee status.

And outright cockups, as described by another lawyer:

I’ve seen some decisions that have been sent to me, and in one case there was a national from Iraq who claimed to have a police report indicating that their house had been attacked and burned down, and the Merits Reviewer basically found against this person, and one of the issues was, well they said, ‘Oh, the police report was handwritten, it wasn’t typed.’ But it’s classic in Iraq that due to the problems with electricity, most police reports are handwritten. In fact you would have been more suspicious if it had have been typed. And that hadn’t been put to him. If that had been put to him, information could have been presented to say, ‘Well this is why this type of document is genuine.’

In another case that was reported in the media, there was an owner of a video store who was targeted because he was selling American-type videos, and the tribunal member reached the rather remarkable conclusion that ‘Oh well, it’s all his own fault basically. If he hadn’t been selling these videos, he wouldn’t have been in this problem in the first place,’ which is just incredible logic in terms of refugees. That’s basically saying, ‘Well there aren’t any refugees in the world because it’s all their own fault.’ There’s clear High Court authority that says you can’t use that type of reasoning. That’s another example of this.

Another one I saw was an Iranian who was accused of adultery, and in Iran adultery is punished by stoning, and the member said, ‘Oh well, in Iran this is just what happens in Iran and there’s no discrimination against people, everyone’s stoned.’ But this type of logic just wouldn’t get up in the RRT, and in normal proceedings, and it’s clear that there’s a certain sloppiness in some of the decision-making, which I think is probably due to pressures on the Independent Merits Reviewers to get through these cases quickly.

And the ultimate cause of all this? Mandatory detention itself:

The real problem is detention. If people weren’t in mandatory detention, there wouldn’t be such pressure to move through the cases quickly. And I think that that’s the essential problem. So that once you have a system where you have to detain people, then you’re under pressure to move through the cases quickly. And the common terminology used in the Migration Act is that decisions have to be fair, just, economic and quick. And I think there’s inherent tensions between those words. You can’t necessarily do something quickly and at the same time provide justice; justice doesn’t always move quickly. And I think I’ve seen this happen in cases. I know that working in the detention centres you’re are under incredible pressures to move through the cases quickly, and shortcuts are going to be taken, not only by advisers but by the decision makers. And I think this is the problem. The problem is the detention system itself.

Could it be any clearer? The whole stupid system, founded in xenophobic panic, needs to be restored to the way it was before we started locking up people without charge. And promptly.

UPDATE: There was a typo in the second paragraph. Thanks to an eagle-eyed and very committed reader for pointing it out.