The High-Stakes Mistakes Of “Enhanced Screening”
By Nick OlleNovember 25, 2013
While Australia’s immigration minister has expanded its controversial refugee triage system, the wrongful near-deportation of one asylum-seeking Vietnamese family highlights the serious problems with “enhanced screening”.
About 40 kilometres out of Darwin, in a meeting room shared by the adjacent Blaydin and Wickham Point immigration detention facilities, I’m talking with a group of Vietnamese asylum seekers.
Thanks to the patient interpreting by the only fluent English-speaker among them, they tell me their stories: why they left their country; how, where and when they arrived; what they have and haven’t been told by immigration officials; their hopes and their fears.
One of these people is Ha, a 28-year-old single mother from Đắk Lắk province in Vietnam’s central highlands. She tells me, in Vietnamese and broken English, that she is here with her brother and her two children. The family arrived in Australia by boat on April 22, 2013.
Ha (whose name we publish with permission) says her family was persecuted in her homeland – a single-party communist state – as retribution for her grandparents having absconded from the Vietnamese army.
Our focus here, though, is neither the detail nor the merit of Ha’s family’s claim for asylum, but rather the process by which it has been assessed.
As we’ll see, Ha’s story highlights the risks inherent in the “enhanced screening” process used by the Department of Immigration and Border Protection (DIBP) to fast-track decisions for some asylum seekers who arrive by boat.
On the basis of a single interview conducted by two immigration officials, asylum seekers are either “screened in” as having a prima facie case to claim refugee status or “screened out” and scheduled for deportation.
Australia’s controversial “enhanced screening process” – previously known to be applied to only Sri Lankan asylum seekers – was broadened under the new immigration minister, Scott Morrison, to include Vietnamese, as revealed by The Global Mail in October.
It isn’t immediately obvious to me in the meeting room, but Ha is happy. As I say goodbye and prepare to leave, she catches my eye and, without lowering her gaze, presses a folded handwritten note into my palm (see photo).
In part it reads: “…immigration and Australia government had forced us go back Vietnam, but have got your help... Therefore Australia Government had accepted us stay in Australia, it’s a great happiness with us, I don’t know what to do and I don’t know what to say, just know thank you so much. If there is no your help, we don’t know, how will be us now?”
Ha's comfort in her changed status, as outlined in the letter, owes nothing to The Global Mail, but rather to the fact that her family has recently been screened in by DIBP, which is especially pleasing for them as they had previously been screened out, and came within a whisker of being deported back to Vietnam.
I knew before visiting Ha that her family had been rounded up on September 23 and sent to the Northern Immigration Detention Centre (NIDC), from which they were to be deported.
As a source explains it: “Ha and her brother were taken to an interview room at about 2pm and did not return. Then when Ha’s two children returned from school at about 4pm they were taken straight to join Ha. From there they were all removed from Wickham Point.”
“My understanding is that on September 23 they were given 72 hours notice of forced deportation, so they would have been scheduled to fly to Vietnam on September 26.”
After advocates received information from asylum seekers at the Wickham Point detention centre, the Refugee and Immigration Legal Centre (RILC) was able to intervene on the family’s behalf. The Centre had previously decided that Ha’s family had a legitimate case for protection in Australia and put this to the immigration department. Within a day, Ha and her family were back in Wickham Point – now screened in.
Enhanced screening, introduced by the previous Labor government under Julia Gillard in October 2012, was intended to apply only to Sri Lankan asylum seekers, however Labor supports the Coalition’s move to apply it also to Vietnamese asylum seekers.
So, what can we learn from the immigration department’s handling of Ha’s claim for asylum?
Well, let’s break it down.
- The enhanced screening process found that the family did not present a legitimate case for refugee protection in Australia.
- Ha was not informed of the reasons for this negative decision.
- Her family was listed for deportation and this process had begun.
- The immigration department reversed its decision, thus acknowledging that Ha’s family does in fact have a prima facie case for refugee protection.
Whatever the department’s reason for overturning its decision to deport Ha and her family, the episode shows that the fast-track enhanced screening process is not functioning properly. And the stakes could scarcely be higher here – get it wrong and you could be sending people to persecution or even death.
Ha’s case is not unique.
The Global Mail is aware of another instance in which a Vietnamese asylum seeker was set for deportation but won a reprieve with an eleventh hour “screening in”. According to former federal president of the Vietnamese Community in Australia, Trung Doan, this asylum seeker presented a written question to a department of immigration official that read “Am I screened in or out?”.
The official responded: “It’s not a relevant question, you will be deported.”
Nevertheless, like Ha and her family, this man was screened back in following the intervention of RILC and is still in Australia.
We’ve also heard numerous reports of clerical and other errors. Such is the frequency of mix-ups that one source bluntly says, “I’m not confident that the information people are being given on their screening status is accurate.”
Indeed, on these grounds some legal experts call into question the legality of the process itself under international law. Savitri Taylor, Associate Professor at La Trobe University’s law School wrote in an article in The Conversation published earlier this month, that signatories to the UN Refugee Convention (like Australia) must “act on the presumption that a person seeking its protection is entitled to such protection unless and until a contrary determination has been made pursuant to a reliable process”.
In June 2013, the Australian Human Rights Commission (AHRC) released a paper urging the (Gillard) government to discontinue the so-called enhanced screening process. The AHRC cited its failure to offer detainees legal representation or other normal safeguards, such as a written record of the reasons for the decision, and the fact that the screening interviews, “may be brief and not sufficiently detailed or probing to ensure that all relevant protection claims are raised”. The United Nations High Commissioner for Refugees (UNHCR) has also labelled the enhanced screening process “unfair and unreliable”.
Immigration minister Scott Morrison did not return calls made by The Global Mail to his office but his stance on enhanced screening – including its expansion to include Vietnamese asylum seekers – is backed up by his opposite number, Labor’s Richard Marles.
The shadow immigration minister told The Global Mail in an email: “The enhanced screening process is not about assessing whether a person is a refugee. The process helps to determine whether a person has a prima facie case for claiming they are a refugee. There are no reasons given for the decision as it is not a decision about whether they are a refugee or not, only whether they have sufficient grounds to claim refugee status or asylum in the first place.”
The Greens’ immigration spokeswoman Sarah Hanson-Young strongly opposes enhanced screening. She told The Global Mail, “Screening interviews can mean the difference between life and death for refugees. The fact that they are being carried out behind closed doors, with no accountability or record of what takes place, before people are swiftly returned home is simply not good enough.”
CEO and principal solicitor of the Perth-based organisation CASE For Refugees, Shayla Strapps, says any process that can result in asylum seekers being ruled out as potential refugees ought to be thorough.
“We are concerned that the process affords a lack of procedural fairness,” she says. “It would be interesting to have it before a court.”
So far, enhanced screening has not been challenged in court.
In December, 2012 the government overturned a decision to deport 57 Tamil asylum seekers to Sri Lanka. The decision followed an application to the High Court to examine whether they had been afforded procedural fairness.
As journalist and activist Wendy Bacon wrote at the time, “Rather than go ahead with the hearing, the government ‘screened’ them back into the refugee process.”
CASE For Refugees’ Strapps says that screened out asylum seekers are “generally screened back in” when lawyers write to the immigration department on their behalf.
Sydney lawyer Philip Pham says that it is difficult for many people who are subject to the enhanced screening process to access legal assistance.
“I actually have about 10 people on Christmas Island crying out for my help but it is impossible to do it all,” he explains.
“I would like to call them my clients, but up until now I’ve been unable to get them to sign any authority authorising me to act on their behalf. [Immigration detention services provider] Serco is not a big help, I can’t call them [the asylum seekers] and they can only call me from time to time.”
Unfortunately for asylum seekers like Ha, being screened in does not equate to – as she wrote in her letter – “Australia Government had accepted us stay in Australia”. It is merely the first hurdle on the path to refugee status. And now that the federal government has scrapped access to the Immigration Advice and Application Assistance Scheme (IAAAS) for asylum seekers who arrived by boat, this burden falls heavily onto the pro-bono legal sector.
“People choosing to violate how Australia chooses to run our refugee and humanitarian programme should not expect the support and assistance that is provided to those who seek to come the right way and should certainly not receive additional support,” according to a media release announcing the withdrawal of IAAAS services for “illegal boat arrivals”.
As Strapps puts it: “Once people are screened in, it leads to further difficulties”.
She explains that it “lifts the Section 46A [of the Migration Act 1958] bar” and allows people to apply for protection visas.
“We are now left in position where advocates try to help people fill out [protection visa] forms. They are difficult to prepare so some of them may not be done as well as they could be [with legal assistance]. It is going to get difficult quickly.”