The demise of third country offshore processing, and the government’s efforts to send refugees to Malaysia or the Pacific, does not mean the end of all offshore processing.

The government maintains a discriminatory offshore processing regime on Australian territory on Christmas Island. Located 2600 kilometres from Perth, Christmas is among the most remote pieces of Australian territory.

The Howard government excised 4600 islands off Australia’s coast from the migration zone. This was designed to deny rights to asylum seekers arriving by boat who arrive there. They are prevented from making asylum claims under the Migration Act, so that their claims are made simply on the discretion of the Minister, outside the formal legal framework.

Labor promised to repeal the excision of many of these islands but reneged once in power.

By contrast, anyone that arrives by plane and applies for asylum after they have reached Australia is almost automatically granting a bridging visa, allowing them to live in the community while their claim is processed. Here they have much easier access to lawyers and community support than in a remote detention centre.

If they are unsuccessful, they are also entitled to appeal to the Refugee Review Tribunal for a full review of the decision.

Even last year, with a higher than usual number of boat arrivals, there were more refugees that arrived by plane and applied for asylum—6316 compared to 5175 by boat.

Normally more plane arrivals are granted refugee status each year too. In 2008-09, just 206 people gained refugee status after arriving by boat, compared to 2172 arriving by plane.

Last year 2700 boat arrivals got a final grant of refugee status, compared to 2100 people who arrived by plane and applied once they got to Australia. Many more were still awaiting a decision on their claim.

But the bulk of the refugees accepted have remained those that Australia selects from refugee camps in other countries—last year of the 13,800 total refugee visas granted, 8900 went to people outside Australia.

Some of those accepted from overseas include family members of refugees already in Australia. In a vindictive effort to encourage division among refugee communities, the Howard government introduced changes in 1996 that limited the number of family members accepted. They now compete for places with boat arrivals, so that in years when more refugees arrive by boat, less family members of other refugees are granted visas.

Two-tier system

Labor has maintained the two-tier processing system that discriminates against boat arrivals.

A High Court decision last year granted rights of appeal to the courts to boat arrivals, but did not end the discrimination. Asylum seekers who arrive by boat can now appeal to the Federal Court if their asylum claim is rejected, but only on errors of process, not factual errors in their decisions.

For instance the asylum seekers who won that initial High Court case showed that some of the issues they raised were not considered by their assessors, and the assessors had failed to give them the chance to respond to adverse information.

The government can get around this by improving its “checklist” that assessors must go through to ensure due process. But all this requires is ticking the box and “considering” relevant issues, however unfairly.

There is now overwhelming evidence that decisions on boat arrivals are being subjected to political interference. Upon announcing its “visa freeze” in 2010, the Labor government made it clear that it expected more rejections because it judged “conditions were improving” in Sri Lanka and Afghanistan.

Assessors heard the message loud and clear. Rejection rates by Immigration Department assessors jumped from 26 per cent to 62.1 per cent from 2009-10 to 2010-11.

Approval rates for Iranians have sunk from 65 per cent in 2009-10 to 27 per cent 2010-11 as the number of boat arrivals leapt from 197 to 1549 following the crackdown on the democracy movement.

At the same time Iranians arriving by plane were accepted at rates of 98 and 96 per cent in the last two years.

Many rejections are being overturned when they are reviewed by independent assessors. However their independence is compromised by the fact that they are employed on contracts by the department. The desire to see their contracts renewed acts as an incentive not to overly offend the department.

But the figures are a measure of the efforts the department is making to ensure more asylum seekers get rejected.

Nothing short of a complete overhaul of the refugee determination process, and the Immigration Department itself, will be necessary to see a fair assessment process for refugees.

James Supple

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