HREOC Report No. 17
Report of an inquiry into a complaint by the Asylum Seekers Centre concerning changes to the Asylum Seekers Assistance Scheme
HREOC Report No. 17
TABLE OF CONTENTS
2. Undisputed Findings of Fact
6. The centre's response to the Department's response of 6 August 1997
7. Further responses by the Department
9. Written submissions in response to the preliminary report
10. Findings and reasons for findings
12. The Department's reply to the findings and recommendations
1. Introduction
This is a Report of the findings and reasons for findings made by the Human Rights and Equal Opportunity Commission (the Commission) following an inquiry conducted by the Commission. The inquiry related to a complaint by the Asylum Seekers Centre (the Centre) against the Commonwealth of Australia (the Commonwealth), Department of Immigration and Multicultural Affairs (the Department). This complaint was made in writing pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) and alleged that changes to the Asylum Seekers Assistance Scheme (ASA scheme) by the Department had breached the basic human rights of people seeking refugee protection in Australia.
Pursuant to section 11(1)(f) of the HREOC Act [1] , the Centre's complaint was initially investigated by the former Human Rights Commissioner, Mr Christopher Sidoti and then, after his term ended on 13 August 2000, by me. [2]
I have formed the view that this matter is not amenable to conciliation. In a letter dated 11 September 1997 the Centre indicated that a satisfactory resolution of the complaint would be for the Department "to develop a scheme that allows for emergency assistance for cases of extreme need throughout the primary and RRT [Refugee Review Tribunal] stages of processing of applications". [3] Commissioner Sidoti then requested that the Department advise whether it would be prepared to participate in conciliation. By letter dated 16 January 1998 the Department stated that "it would not be appropriate for the Department to enter into a conciliation process on Government policy".[4] At all times the Department has maintained that the changes to the ASA scheme did not breach any of the Commonwealth's human rights obligations.
2. Undisputed Findings of Fact
The factual basis of this complaint is not in dispute and I therefore make the following findings of fact:
2.1 Australia's refugee determination system
As a State Party to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugee Convention and Protocol), Australia has recognised the right of people to seek asylum in Australia. This right has been incorporated into domestic law by the Migration Act 1958 (Cth) (Migration Act) and associated Regulations which establish Australia's refugee determination system.
A person seeking refugee protection in Australia may make an application for a Protection Visa (PV). [5] This application is first determined by an officer of the Department (the primary stage).[6] If the Department declines the application for a PV, there is a right of review by the Refugee Review Tribunal (RRT) (the review stage). If the application is also declined on review, there are further limited avenues of review by the Federal Court [7] and also the right to request that the Minister of the Department substitute his decision for that of the RRT. [8]
2.2 The ASA scheme
The ASA scheme has been operating since July 1992. It is a policy-based program and there is no legislation covering its administration.[9] The ASA scheme provides financial assistance to asylum seekers who have made a PV application and, pending the determination of this application, are unable to meet their most basic health care and living needs, including for food, clothing and accommodation. As a non-citizen, an asylum seeker is generally ineligible for all other forms of State funded assistance including social security benefits and Medicare. [10]
The ASA scheme is funded by the Commonwealth, administered by the Australian Red Cross (ARC) and managed by the Department. The Department has responsibility for determining the eligibility of recipients and the scheme is operated in accordance with an annual agreement between the Commonwealth and the ARC.
In September 1996, when the Centre lodged their complaint with the Commission, benefits under the ASA scheme were payable to persons awaiting a decision at the primary or the review stage. Asylum seekers were eligible for ASA assistance at the primary stage if their application had not been determined within six months. However, the Department, on the submission of the ARC, granted exemptions to this waiting period in cases where certain guidelines were satisfied. Prior to October 1996, the Asylum Seeker Assistance (ASA) Scheme - Guidelines for determining requests for exemption from the eligibility criteria provided that:
an exemption from the six month waiting period may be granted to individual ineligible asylum seekers in the Australian community who demonstrate that:
- they are unable to meet their basic living needs as a consequence of an unforeseen change of circumstances which occurred after their latest arrival in Australia; and
- they have utilised and exhausted all avenues of support which they might reasonably be expected to pursue in their particular circumstances. In special cases, the absence of a link between the asylum seeker's inability to support him or herself and an unforeseen event following his or her arrival in Australia need not bar the grant of exemption.
"Special cases" are defined as including but not limited to:
- a dependent child in undue hardship; and
- an individual whose dependency constitutes an unreasonable burden on a permanent resident or a charitable organisation. [11]
2.3 Changes to the ASA scheme
2.3.1 The first changes
In August 1996 the Minister for the Department announced that there would be changes to the ASA scheme. These changes came into effect on 1 October 1996 and made two significant alterations to the scheme:
(a) asylum seekers were no longer eligible for ASA scheme assistance at the review stage. As a consequence, refugees, whose status as such had been recognised by the RRT, were ineligible for ASA assistance while waiting the issuing of their PV ; and
(b) new criteria governing exemptions from the six month waiting period were imposed. Exemptions to the six month waiting period could only be granted to an applicant where "exceptional circumstances beyond the control of the applicant exist[ed]". [12] The Asylum Seeker Assistance Scheme (ASAS) Exemption Guidelines provided that "exceptional circumstances"
existed where:
- an applicant can demonstrate severe financial hardship to the extent that basic needs cannot be met; and
- financial hardship has resulted from a change in circumstances beyond the applicant's control.
"Change in circumstances" included, but was not limited to:
- in the case of a sponsor, withdrawal of support by a sponsor for reasons such as death, disability, bankruptcy, unemployment, serious illness[; or]
- where there is no sponsor, funds available to support the applicant for their period in Australia have now been exhausted ? either because the period they were intended to cover has expired, or because they have been spent on unexpected and unavoidable emergency costs (e.g. serious illness or accident after arrival).
2.3.2 The second changes
The Government made further changes to the ASA scheme that came into effect on 1 May 1998 and 1 July 1999.
The changes made on 1 May 1998 revised the criteria for exemption from the six month waiting period introduced by the first changes. The new criteria provided that a person was eligible for ASA assistance where that person was:
(i) an unaccompanied minor;
(ii) an unaccompanied elderly person over 65 years of age;
(iii) unable to work because of a disability or illness and who has supporting documentation from a medical officer;
(iv) a parent with a child under 18 years of age for whom they are responsible and who resides at the same address;
(v) a full time carer, where the person being cared for is living at the same address as the carer and is unable to work because of care responsibilities; or
(vi) unable to work because of the effects of torture or trauma and who has supporting documentary evidence .
[13] or
- in financial hardship, unable to meet his or her basic needs of food, accommodation and clothing and has no continuing and adequate support within the community;
and either - in an exemption category. That is, is either:
- where the financial hardship resulted from a change in circumstances beyond their control since arrival in Australia.
The changes operative on 1 July 1999 further amended the exemption criteria. From this date there were two additional exemption categories, namely:
- a person with a high risk pregnancy; and
- a person who is the spouse, de facto or sponsored fiancé of a permanent resident or citizen of Australia or New Zealand, whose combined income is lower than ASA payments available to eligible asylum seekers of the same family composition. [14]
From 1 July 1999, asylum seekers who satisfied the exemption criteria were also able to gain access to ASA assistance at the review stage. However, in the 1999/2000 financial year only $210,000 was made available to asylum seekers with applications at the review stage. [15] In the 2000/2001 financial year, this figure rose to $500,000. [16]
3. The Complaint
The Centre lodged a written complaint with the Commission on 2 September 1996. This initial complaint concerned the first changes to the ASA scheme that were effective from 1 October 1996. However, as the inquiry progressed the Centre's complaint broadened to encompass the second changes to the scheme effective from 1 May 1998 and 1 July 1999.
The Centre alleged that the first and second changes to the ASA scheme placed Australia in breach of article 26 of the ICCPR and articles 3 and 24 of the CROC. The Centre also alleged that the Department had breached other articles of the ICCPR and the CROC, but these allegations were not substantiated.
The Centre asserted that from its inception the ASA scheme has provided basic welfare and health assistance to asylum seekers. In particular, the Centre claimed that the scheme has served as a safety net for those asylum seekers who do not have permission to work or who have been unable to find work and do not have other means of support. The Centre alleged that, as a result of the first and second changes, the most needy and urgent cases, including victims of torture and trauma, lack the basic resources to survive in Australia while waiting for their PV applications to be determined.
In a subsequent letter of 23 May 1997, the Centre asserted that as a result of the first changes to the ASA scheme "the situation for many asylum seekers has deteriorated significantly". The Centre reported that it and other agencies had experienced a marked increase in the calls for assistance from asylum seekers with "no money, no income and no means of support". The Centre stated that since November 1996 there had been virtually no exceptions granted to the six month waiting period for ASA benefits and that:
many newly arrived asylum seekers are in very serious financial hardship, lacking money for accommodation, food, clothing, transport and so on. This is especially true of those who do not have relatives or friends in Australia when they arrive. Even many of those who do have someone to stay with - whether a relative, friend or acquaintance they have made upon arrival - have difficulties. Frequently, their hosts become less and less willing to look after them as the weeks and months go by. Charitable organisations, with already stretched resources, are struggling to respond to the increased demands from desperate asylum seekers who have no source of income. In particular, emergency accommodation is often difficult to access and in many cases is unsuitable for asylum seekers, especially those suffering from torture or trauma.
This very serious situation has been exacerbated by the fact that it has become harder for many asylum seekers to gain permission to work … Since permission to work is a prerequisite for obtaining a Medicare card, many asylum seekers also lack access to health care for long periods of time. Even many of those with Medicare cards have difficulties when they are sick, because they lack the money to pay for pharmaceuticals.
The Centre provided two case studies of people adversely affected by the decision to make asylum seekers at the review stage ineligible for ASA assistance. Case Study 1 and Case Study 2 are set out in Appendix B.
4. The Department's Response
In its response to the complaint of 6 August 1997, the Department referred to a media release titled Speedier processing for asylum claims [17], a Departmental Fact Sheet [18] and a letter from the Department to the Secretary-General of the ARC dated 30 August 1996. These documents indicate that the first changes to the ASA Scheme were made as a response to the "spiralling costs" of the scheme [19] and out of the perceived need to discourage persons, who lodged claims with very little chance of success, from using the PV system to prolong their stay in Australia. These persons were seen to be creating delays in processing, causing a build?up in numbers of outstanding applications and compromising the capacity of the Department to quickly and effectively identify and assist the refugees in the caseload. [20]
The Government determined that "in fairness to those people who are in genuine need of Australia's protection it is imperative that [resources be] concentrated on those applicants who are at the beginning of the protection visa system".[21] The Minister in the media release also asserted that while applicants have the right to pursue their review rights, the Government does not have an obligation to provide applicants with assistance once they have been assessed as not being refugees (at the primary stage).[22] It was alleged that assistance to those who seek review encourages manifestly unfounded claims. [23]
In this response of 6 August 1997, the Department indicated that it "had not identified any breaches of Australia's international obligations in the changes to the ASA scheme". The Department asserted that:
[t]he primary determination process provides a fair, just, quick and economical determination of protection visa claims against the refugee convention. It is through this process that Australia gives practical recognition to its international obligations … In recognition of the hardship that some applicants may face, the [RRT] is according high priority to applications from people who were previously in receipt of ASA payments and those who can demonstrate financial hardship.
5. The Australian Red Cross
Mr Ken Hastie, the New South Wales Manager of the ASA scheme at the ARC, provided a statutory declaration to the Commission dated 14 October 1997. He stated that " there are two significant changes to the scheme that remain a bone of contention for the ARC". The first related to the change to the eligibility criteria which prevented persons with applications at the review stage from receiving ASA assistance. In this respect Mr Hastie noted:
As at October 1996, Red Cross has about 400 clients in New South Wales or, with members of families counted … about 600 people under the ASA scheme. About 230 or over 50% became ineligible as at 1 October 1996. They were people at the RRT stage or were people who had been approved as refugees by the RRT but who had not yet received their Protection Visas. In one such case, a single women with three children had been found by the RRT to be a refugee in August 1996. She did not receive her Protection Visa until November 1996. She became ineligible for assistance on 1 October 1996 and was without assistance for six weeks. Red Cross sought to have her assistance continued until her PV was issued but this was not possible as she fell outside the eligibility guidelines. This was despite the fact that she had been found to meet the United Nations definition of a refugee and was a person to whom Australia was obliged to provide protection. Many similar cases have come to our attention ...
The second problematic change related to the new criteria for the granting of an exemption:
In July 1993 at the time of the first renewal of ASA contract (since its inception in January 1993), the then Government introduced a six month waiting period. To offset this, and at the insistence of the Red Cross, Red Cross could seek an exemption for exceptional circumstances of hardship, and guidelines and criteria were developed to assess who was eligible for an exemption.
The changes imposed by DIMA in October 1996 were intended to reduce the number of approved exemptions from approximately 25 to 30 per month to approximately 25 to 30 per year. The exemption guidelines imposed by DIMA were (and remain) unacceptable to Red Cross and as a consequence, most Divisions (states) of Red Cross withdrew from the exemption process. In the past, an applicant for an exemption had to exhibit exceptional need or a change in circumstances. This means that a person who arrives in Australia and is destitute is not eligible because there is no change in their circumstances. Consequently, need is no longer the primary determinant for exemption and access to assistance. This remains unacceptable to
Red Cross…The failure of the Government to assist persons in the review stage had resulted in massive hardship and an increased demand on all welfare agencies and charitable organisations. In NSW, an interagency comprising over 40 organisations had been formed with a view to finding co-ordinated solutions to problems of the most extreme hardship.
The final matter addressed by the ARC in their submission was the Department's assertion that ASA recipients were afforded high priority by DIMA and the RRT. Mr Hastie asserted that since 1 October 1996 there have been no ASA recipients before the RRT. He stated that:
DIMA has claimed that ex ASA clients continue to receive high priority before the RRT. This is in fact incorrect. The RRT negotiated with the ARC in October 1996 for the expedition of those cases which ARC felt exhibited 'extreme financial hardship'. More recently, the 'NSW Asylum Seekers Interagency' has assumed the role of identifying such cases. Ex ASA recipients who are not identified by the Interagency as being in extreme financial hardship are not afforded expeditious processing by the RRT. As a result of speedier processing by DIMA and significant staff changes at the RRT, the Tribunal is now faced with a significant backlog of cases, none of whom are entitled to ASA.
In a further submission of April 1998, the National Office of the ARC provided seven case studies that it claimed highlighted the hardship caused to many asylum seekers by the first changes to the scheme. Case Study 3 to Case Study 9 are set in Appendix C.
In this submission, the ARC also advised that it had recently signed a new ASA scheme agreement with the Department to take effect from 1 May 1998 and that this agreement included new criteria for seeking exemptions.
6. The centre's response to the Department's response of 6 August 1997
The Centre was given a copy of the Department's response of 6 August 1997. In a letter of 11 September 1997, the Centre challenged a number of points made by the Department in this response. The Centre disputed the Department's claim that its primary determination processes were fair, just, quick and economical:
In a significant number of cases known to me, current DIMA processing procedures of onshore protection visa applications cannot be described as "fair, "just" or "comprehensive". This year many refugee applicants who have very strong claims have been rejected because DIMA case officers have not adequately examined their claims. Many of these people will subsequently be recognised as refugees by the Refugee Review Tribunal (RRT) …
This rejection of many refugee applicants with strong claims coincides with DIMA's current practice of processing the vast majority of applications "on the papers" (i.e. without interviews). Such rejections, coupled with removal of ASA benefits to those people whose cases are with the RRT, is resulting in great hardship for many asylum seekers with substantial refugee claims. This is especially true for those who are not given permission to work and who lack access to Medicare, an increasing percentage of asylum seekers due to changed regulations and procedures, such as the new rules that came into effect on 1 July 1997.
The Centre also disputed that unsuccessful applicants at the primary stage who were in receipt of ASA assistance were given high priority at the RRT review stage. It stated that:
It has never been the case that all ASAS recipients who are rejected at the primary stage of application and who appeal to the RRT are afforded expeditious processing. They are not automatically afforded high priority … In practice, the prioritising of financial hardship cases at the RRT relies on concerted advocacy from agencies and only relates to extreme need. The RRT has come to an agreement with concerned agencies to prioritise cases of extreme financial hardship, not just any financial hardship … [t]he prioritising of such cases of extreme financial hardship still means a wait of many months for a RRT decision. The RRT gives top priority to detention cases and next priority to torture/trauma cases, and even these very urgent cases generally take two or three months.
The Centre also commented on the fact that:
… there have been virtually no exemptions since November 1996, and I am advised by the Australian Red Cross that because there are no acceptable exemption guidelines, the Australian Red Cross takes the view that there are no exemptions to the six month waiting period. As a consequence, no exemption submissions have been made since March 1997 and no further exemption requests will be submitted by the Australian Red Cross until acceptable guidelines are negotiated.
In a further letter dated 11 March 1998 the Centre provided three case studies of asylum seekers who were ineligible for ASA assistance but who would have been eligible prior to 1 October 1996. These are Case Study 10, 11 and 12 in Appendix D.
7. Further responses by the Department
The Department was given an opportunity to respond to the Centre's responses of 11 September 1997 and 11 March 1998. In its response dated 17 November 1998, the Department disputed that the ARC had withdrawn from the exemption process:
[f]ollowing the 1996?97 Budget a revised exemption mechanism was negotiated with the Red Cross and came into effect in late 1996 and was in place throughout 1997. During the negotiations the Department considered all exemption requests submitted by the Red Cross. During 1997 several Red Cross Divisions did not submit any exemption requests to the Department. However, at no time did Red Cross withdraw from that component of the ASA Agreement.
In a document dated 8 September 1998, attached to this letter titled About The Asylum Seeker Assistance (ASA) Scheme, the Department confirmed that a new ASA Agreement with the ARC had come into effect on 1 May 1998 including "changed eligibility criteria, a revised exemption mechanism, a documented needs assessment and clauses allowing the Department to recover monies".
The Department further contended in its response that "the Department was fully aware of all relevant international obligations when the changes to the ASA scheme were considered and implemented". In support of this proposition the Department attached a copy of a legal advice that was provided by the Legal Section of the Department on 11 April 1997 in response to the Centre's complaint. This advice stated:
The complaint raises several articles under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. To the best of my knowledge advice on these was not sought from this Section at the time the new ASA requirements were developed …
In relation to the specific articles raised it is difficult to give a definitive view on whether the new arrangements could potentially result in a breach of our obligations under the Convention on the Rights of the Child (CROC). The obligations under CROC do not require that specific measures be taken but measures should be consistent with our obligations. The most specific obligation is that in article 3 of CROC which requires that in all decisions affecting children their interests need to [be] taken into account as a primary consideration. I do not know if this is done in relation to ASA assessments but assume it is. With this in mind, we do not believe the ASA scheme per se is in breach of our obligations. However, in particular fact circumstances it may be possible to establish that a breach has occurred in the individual circumstances. Such a determination would depend upon all the circumstances of the case not just ASA availability and would include considerations such as whether alternative arrangements were available and so on. The availability of discretion to depart from the norm in exceptional circumstances assists in providing adequate flexibility so that breaches may be avoided and supports a conclusion that any international obligations can be met.
8. Statistical material
At the request of the Commission, the Department and the RRT provided a quantity of statistical information in relation to the ASA scheme to this inquiry. The Preliminary Report contains six Tables that summarise this statistical evidence. These Tables are reproduced in Appendix E to this Report. All of the statistical data used in this Report has been obtained from these Tables.
9. Written submissions in response to the preliminary report
On 22 September 1998, Commissiohner Sidoti provided a preliminary report to the parties that outlined his preliminary findings of fact and law in relation to the complaint. Pursuant to section 27 of the HREOC Act, Commissioner Sidoti invited the parties to make submissions orally and/or in writing in response to his Preliminary Report. The parties elected to make written submissions.
9.1 Written submissions by the Department
In its written submission of 18 February 2000, the Department strongly contested any suggestion the first changes to the ASA scheme had breached the human rights of asylum seekers. The Department contended that:
[c]hanges to the scheme have been driven by considerations of the most appropriate ways of meeting international obligations. Providing a means of material support to asylum seekers goes some way towards achieving this, although it is just one measure of many. Fundamental in protecting the interest of refugees is the implementation and maintenance of a refugee determination process which delivers high quality and timely decisions. The 1 October 1996 changes went to these fundamentally important issues by removing incentives for widespread misuse of the refugee determination process by people who were not refugees and whose actions were directly and seriously harming the interests of refugees. Misuse of review processing was prolonging review application times. The changes were introduced because abuse of the refugee determination system was damaging the interests of refugees. They were designed to strengthen and support a refugee determination system under considerable pressure, not to punish a particular group. [25]
The Department confirmed that it "was fully aware of all relevant international obligations when the changes were considered and implemented". [26]
The Department also confirmed in their written submissions that the ARC was opposed to the changes to the exemption process and did not participate in the exemption process between 1 October 1996 and 1 May 1998. As a result, between December 1996 and April 1998, very few exemption requests were received by the Department and in some months none were received. The Department's records indicate that eleven exemptions were approved during that period.
The Department stated that it then:
consulted with the ARC and interim changes to the exemption criteria were agreed. These came into formal effect in the next Agreement in May 1998. This Agreement increased the focus on assisting particularly vulnerable asylum seekers … The current Agreement came into effect on 1 July 1999 and received the unanimous endorsement of the ARC National Executive. It included new arrangements providing access to ASA support for persons in financial hardship who had sought a review by the RRT of their primary decision. [27]
As a result of these changes (the second changes) the Department asserted that:
the matters which gave rise to the inquiry have since been addressed. Changes to the Scheme introduced amendments providing effective access to ASA support in the first six months after lodgement of an application for needy applicants and since July 1999, have also provided for access to ASA at review. It is therefore considered that the complaint should be considered "settled". [28]
The Department's written submissions then comment generally on the complaint. These submissions contend that:
The high quality of the primary determination process as well as the availability of merits and judicial review (as well as the availability of a wide variety of sources of publicly funded, private and community support for the small number of applicants who find themselves in real need of material support) has provided, and continues to provide, an ample "safety net".
The 1 October 1996 changes to the Scheme … were considered a necessary response to rapidly increasing, and non-affordable, levels of expense associated with a growing proportion of abusive refugee claims. There was compelling evidence that processing delays and the availability of ASA were powerful attractions for those seeking to abuse Australia's refugee determination system. Many asylum seekers were seeking to utilise the refugee determination system to gain an immigration outcome, as evidence in part by high rates of primary refusal, review take-up and review affirm rates.
As part of the package of changes, and in the interest of refugees among ASA recipients, review applicants were accorded processing priority. In addition, they had access to support from the voluntary and non-profit community sector, which received separate Commonwealth, State or local funding at an appropriate level. Such recourse was accessible to aliens and nationals. [29]
The Department's written submissions then address the findings in the Preliminary Report in respect of the CROC and the ICCPR. These submissions are summarised below.
9.1.1 CROC
Article 24
The Department does not accept that there was any breach of Article 24 of the CROC as:
[e]mergency health care and other forms of support were available at state and local government level and from community groups. Australia has strong public health programs with services such as hospitals and other services available to asylum seekers, including children. A national network of torture and trauma counselling services has been available for a number of years for all asylum seekers, including children, who require support. Evidence has not been provided that the children of asylum seekers did not have access to health services or that the state did not make available the 'highest attainable standard of health'. [30]
9.1.2 ICCPR
Article 26
The Department asserted in its written submissions that there had been no breach of this article by the first changes to the scheme as:
in the face of clear evidence of abuse, the government's decision was both balanced and proportionate. The measure was taken as a result of a large body of evidence of substantial abuse of Australia's refugee determination system and exploitation of processing delays. The Department was well aware that a major proportion of review applicants had their primary determination affirmed and, based on application and review trends at the time, was concerned at the dramatic increase in expenditure that would result and the impact that such misuse of review opportunities was having on prolonging the uncertainty of those small numbers of review applicants who were refugees. The Government considered the measures entirely appropriate and proportionate to the issue being addressed. [31]
The Department provided the following evidence that asylum seekers were abusing the system:
- between October 1995 and September 1996, 82 per cent of primary decisions were affirmed by the RRT. This and "other evidence relating to applicants indicate that the number of non-bona fide cases was - and remains - far from 'insignificant'". [32]
- it stated that:
[a]s a result of the changes introduced in 1996 and 1997 primary and review applications from traditionally low refugee producing nations decreased, while those from high refugee producing nations remained steady. The flow-on rates to review by the RRT from low refugee producing countries decreased substantially, but the flow on rates from genuine refugee producing countries generally remained steady or increased. [33]
The Department also challenged the preliminary finding that "compared to the situation prior to October 1996 more bona fide asylum seekers with genuine cases are being forced to consider seeking a review by the RRT to ensure their claims are properly assessed by Australian authorities". The Department relied on the fact that from 1 October 1995 to 30 September 1996, 623 decisions at the primary stage were set aside compared to 511 in the period 1 October 1996 to
30 September 1997.
In conclusion the Department stated that it:
believes that the Government's changes to the Scheme were properly balanced against public interest considerations and in appropriate proportion to the serious budgetary impact of misuse of the refugee determination system and the deleterious impact on bona fide applicants flowing from that misuse.
The Department has actively monitored the implementation of the changes and their impact on community organisations as well as applicants. As a result the scheme has been amended to expand the exemptions providing access to asylum seekers within the first six months of lodgement and at review.
These measures, in addition to the provision of quick and high quality refugee determinations, ensures that Australia meets its international protection obligations, and enables provision of material support to those experiencing real hardship. [34]
9.2 Written submissions by the Centre
By way of submission dated 25 May 2000, the Centre acknowledged that there have been some positive changes to the ASA scheme since the Centre's initial complaint. However, the Centre asserted that the "overall problems with the ASAS remain". The Centre suggested the second changes made by Government to the ASA scheme were a realisation on the Department's part that the earlier provisions were "unacceptable".
The Centre highlighted the following contentions in their submission:
We are aware that the Australian Red Cross NSW implemented an emergency assistance programme in late 1996 which was designed to offer limited assistance to those asylum seekers who were seen as being most vulnerable. The few who were able to access this assistance have been provided with $45 per person per fortnight. Not enough money to survive in the Australian community for a fortnight. As far as we are aware, this is the only money available to asylum seekers not eligible for ASA. The vast majority of asylum seekers with applications before the RRT were unable to access any form of welfare assistance.
- Asylum seekers who are successful before the RRT are still denied access to the ASA scheme prior to the issue of their PVs, which can take anything "up to six months or more".
- The Department's suggestion that asylum seekers have access to support from the voluntary and non-profit community sector is "totally outrageous and untrue".
The first response of the community sector to the October, 1996 changes, was to hold a meeting conducted at the Asylum Seekers Centre in November, 1996 attended by all major agencies and many smaller ones that interact with asylum seekers. The clear indication from the meeting was that no agency had the funds to adequately support asylum seekers. This meeting was the beginning of the NSW Asylum Seekers Interagency which still meets bi-monthly and whose members still do not have viable solutions for those asylum seekers who are unable to access ASA.
- While there are new criteria for asylum seekers to obtain an exemption to the six month waiting period for ASA assistance these criteria do not permit the provision of ASA assistance to asylum seekers on the basis of extreme hardship alone. The new guidelines preclude single asylum seekers, couples without children and the majority of pregnant women from ASA assistance.
- The Centre highlighted that:
ASAS provided health care (including pharmaceuticals) to those without access to Medicare. Having been denied access to ASAS, those without Medicare had no access to any form of health support. This remains the case today and all too often we are forced to tell pregnant women that they should present at the emergency labour ward of their nearest hospital when they go into labour. They do not have any medical records to take with them about the management of their pregnancy.
Families are forced to decide whether to obtain necessary medication at the expense of other essential items (e.g. food). People are forced to forego necessary treatment because they can't afford the cost of a visit to a GP.
- As a result of new procedures where fewer interviews with asylum seekers are conducted, a greater number of refugees are "slipping through the net" and needing to make application to the RRT.
- The Department's assertion that refugee applications from refugee producing countries has remained steady during 1996 and 1997 would "support the contention that refugees are being forced to suffer as a consequence of the changes".
9.3 Further written submissions by the Department
The Department provided further written submissions dated 18 May 2001 responding to the Centre's written submissions of 25 May 2000. In those submissions the Department contended that:
- It is not correct to suggest that applicants are excluded from the ASA scheme while their visas are being issued. If a person has ASA at the review stage as a consequence of the second changes to the scheme, that person continues to have ASA until a visa is issued.
- Like ASA recipients, Australian nationals must satisfy eligibility criteria to gain access to Australia's social welfare system. Australian nationals accessing benefits can receive differing levels of support depending on legislative criteria setting out eligibility for particular payments and assessments of their means. Nationals can also be excluded from access to benefits if they fail to take specified actions, for example pursuit of employment opportunities … Because ASA is administratively based, the exemptions mechanism is broader and more flexible than is the case for the mainstream social benefits system. It is noteworthy that in the 10 months to 30 April 2001, of the approximately 240 cases approved for ASA, 208 were approved through the exemption process.
- Trauma and torture counselling services are specifically funded to provide assistance to asylum seekers.
- Community organisations will provide services to asylum seekers even though they receive no clearly targeted funding from the Commonwealth. However, the Department did not dispute that the funding guidelines to many community sector organisations preclude the use of those funds for non-residents.
- The exemption criteria, before and after October 1996, which allowed applicants access to ASA within six months of the date of their application provided an appropriate mechanism to meet Australia's obligations under CROC.
- The Department asserted that the Centre's written submissions contain "errors and distortions in relation to the availability of emergency health care by asylum seekers".
The [Centre's] claim that health care is still not available to children in many instances … is incorrect. Emergency health care is available to all persons from casualty departments at public hospitals throughout Australia where any basic health care needs are able to be addressed …
Those people without Medicare who seek treatment at a public hospital are not turned away, but may be asked to pay for the services they receive at the discretion of the hospital concerned depending on an assessment of their needs. Many members of the Australian community rely on hospital casualty departments for their health care needs as no doubt do other temporary residents who do not have Medicare access. [The Centre] has presented no evidence that its scenario of a pregnant woman relying on casualty and non-specialist care presenting to a hospital without detailed medical history of the pregnancy is in any way exclusive to asylum seekers, or indeed, non-Australian nationals. In many instances Australians may be unable to provide medical records. Many Australian families also need to make financial choices regarding the purchase of medication.
Additionally when an asylum seeker cannot meet health care costs incurred because they do not have Medicare access, this can be taken into account in assessing financial hardship for the purpose of providing access to the ASA scheme and the related health care provided in that scheme. In these circumstances, the applicant may be eligible for an ASA exemption and receive health care assistance under ASA if they do not have Medicare coverage.
- Article 26 of the CROC is qualified by the need for the provision of social security to be in accordance with national law, such as the Migration Act, in combination with other relevant legislation.
- The Centre's concern that refugees are slipping through the net is unfounded.
Recent statistical information shows that the RRT set-aside rate for applicants in the community is falling not increasing. Additionally, the UNHCR in its submission to the Senate Legal and Constitutional References Committee Inquiry into the Operation of Australia's Humanitarian and Refugee Program commented that 'Australia has established an elaborate and sophisticated system for the consideration of individual asylum applications'. In our view this supports the Department's position that our primary decision-making processes are robust and reliable.
- Single persons, couples without children and the majority of pregnant women can apply for exemptions if they are in financial hardship and that hardship was caused by a change in circumstances.
In conclusion, the Department asserted that the submission by the Centre "does not provide any further substantive information either to contest the matters put in the Department's response to the complaint or to usefully contribute [to] the resolution of the … complaint."
10. Findings and reasons for findings
The Commission is required by section 11(1)(f)(ii) of the HREOC Act to inquire into:
- any act or practice
- that may be inconsistent with or contrary to any human right.
10.1 Was there an act or practice?
Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct.[35]
The Department makes clear in its letter dated 6 August 1997 that all changes to the ASA scheme were the result of administrative decisions taken by the Commonwealth. Accordingly, I am satisfied for the purpose of section 3 of the HREOC Act that the first and the second changes to the scheme were acts done by the Commonwealth.
10.2 Were the acts inconsistent with or contrary to any human right?
"Human rights" are defined in section 3 of the HREOC Act as including the rights and freedoms recognised in the ICCPR and the CROC. [36]
10.3 Were the acts inconsistent with and/or contrary to the human rights recognised in the CROC?
The Centre alleges that the changes to the ASA scheme breach articles 3 and 24 of the CROC. The CROC was adopted by the United Nations General Assembly on 20 November 1989. Australia ratified the CROC on 17 December 1991 and it came into effect for Australia on 16 January 1991. The CROC applies to all human beings below the age of eighteen years [37] within the Australian jurisdiction. That is, the CROC applies to child asylum seekers, child refugees and also children whose application for refugee status has been refused.
10.3.1 Implementation of the CROC by Australia
Article 4 of the CROC obliges State Parties to implement the CROC articles enshrining economic, social and cultural rights "to the maximum extent of their available resources". Neither the CROC nor the Committee on the Rights of the Child (the Committee) have articulated which specific articles are to be regarded in this way, although it can be argued that all of the articles considered in this Report fall within the category of economic, social and cultural rights.
Furthermore, the Committee has not provided any guidance as to how this part of article 4 is to be interpreted. The concept of the progressive realisation of economic, social and cultural rights is not unique to the CROC. The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains a similar concept in article 2.1, by providing that a State Party is to take steps "to the maximum of its available resources with a view to achieving progressively the full realization" of the rights recognised in the ICESCR "by all appropriate means". In 1990, the Committee on Economic, Social and Cultural Rights made a detailed General Comment in relation to this article. [38] This Committee stated that:
The concept of progressive realization … imposes an obligation to move as expeditiously and effectively as possible towards that goal … [T]he Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State Party. Thus, for example, a State Party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would largely be deprived of its raison d'etre. By the same token, it must be noted that any assessment of whether a State has discharged its core minimum obligation must also take account of resource constraints applying within the country concerned … In order for a State Party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources, it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations … [39]
The Department has not, at any point in this inquiry, raised any argument concerning Australia's ability to fully implement the CROC articles pertaining to economic, social and cultural rights. For the purpose of this inquiry it is therefore assumed that Australia possesses sufficient resources to achieve the full realisation of all of the rights recognised in the CROC.
10.3.2 The first changes to the ASA scheme
10.3.2.1 Article 3 of the CROC
Article 3, which is set out in Appendix F, obliges State Parties to have the best interests of the child as a primary consideration [40] in all "actions concerning children". The decision to make changes to the ASA scheme was clearly an "action" and it was one that "concerned" children. An immediate result of the Commonwealth's decision was that from 1 October 1996 payment of ASA benefits to 24 per cent of existing child recipients ceased; that is, payments to 214 persons under 18 years of age ceased.
The fact that the changes to the scheme were not directed specifically at children does not mean that article 3 has no application to the actions of the Commonwealth. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [41] a majority in the High Court rejected the argument that the provisions of article 3 were intended to apply only to "actions" that were directed at children and not those that merely have consequences for children. [42] The majority stated that the objects of the CROC will best be achieved by giving the word "concerning" a wide-ranging application.
The Department has provided an assurance that it was "fully aware of all relevant international obligations when the changes to the ASA scheme were considered and implemented". [43] No evidence has been provided, however, that there was any consideration of the extent to which the first change to the ASA scheme conformed with article 3 of the CROC. No mention of this consideration is made in any of the policy documents, press releases, responses or submissions provided by the Department to this inquiry. Indeed, there is evidence to the contrary. In the legal advice of 11 April 1997, referred to in Part 7 of this Report, the Department's Legal Section indicated that no advice was sought from it in relation to possible compliance with the CROC at the time the new ASA requirements were developed.
Accordingly, after a consideration of all evidence before this inquiry and the submissions of the parties, I am of the view that the best interests of the child were not a primary consideration in making the first changes to the ASA scheme. I find, therefore, that article 3 of the CROC has been breached.
10.3.2.2 Article 24(2)(d) of the CROC
Article 24(2)(d) requires that State Parties take measures to ensure appropriate pre-natal and post-natal health care is available for mothers. This article is set out in Appendix F to this Report.
The Centre has asserted that, as a result of the first changes, pregnant asylum seeker women in financial hardship did not have access to any appropriate pre-natal health care. It was argued that any pre-natal health care for these women was limited to the care they received upon presentation to the emergency labour ward of a public hospital immediately prior to or during childbirth. The Department has rebutted this submission by asserting that this scenario is not exclusive to asylum seekers.
I accept that the first changes to the ASA scheme were in breach of article 24(2)(d). As a consequence of these changes, pregnant asylum seeker and refugee women without permission to work [44] and suffering financial hardship were denied "appropriate pre-natal care". I do not accept that the availability of assistance at the casualty Department of a public hospital satisfies Australia's obligations under this article. Australia is required, at a minimum, to provide all pregnant women with access to ongoing management of, assistance and information in relation to their pregnancy.[45] The fact that pregnant Australian nationals rely on casualty and non-specialist care does not detract from Australia's obligation under this article.
10.3.3 The second changes to the ASA scheme
10.3.3.1 Article 3 of the CROC
It is not apparent from the minimal information provided by the Department that the best interests of the child were a primary consideration in the decision to make the second changes. In its submissions of 18 February 2000, the Department acknowledged that the second changes to the scheme were a result of monitoring the implementation of the first changes and their impact on community organisations. This submission makes no reference to the impact of the second changes on children or the relationship between the ASA scheme and Australia's obligations under CROC. The submission states that "[t]hese measures … ensure that Australia meets its international protection obligations [presumably under the Refugee Convention and Protocol] and enables provision of material support to those experiencing hardship".
I find, therefore, that the best interests of the child were not a primary consideration in making the second changes to the ASA scheme and that article 3 of the CROC was breached.
10.3.3.2 Article 24(2)(d) of the CROC
As a result of changes to the eligibility criteria effective from 1 July 1999, asylum seeker and refugee women with "high-risk" pregnancies in financial need were given access to ASA health care services at the primary and review stages.[46] While these changes went some way towards fulfilling Australia's obligations under article 24(2)(d) of the CROC, they fall short of doing so completely. Asylum seeker and refugee women without permission to work [47] and suffering financial hardship who do not have high-risk pregnancies continue to be denied access to pre-natal services. Until there is unlimited access for pregnant asylum and refugee women to ASA health care assistance (or an equivalent), Australia will continue to be in breach of this article.
10.4 Were the acts inconsistent with and/or contrary to the human rights recognised in the ICCPR?
The Centre alleged in its initial letter of complaint dated 2 September 1996 that the Commonwealth's changes to the ASA scheme breached article 26 of the ICCPR. The Preliminary Report found a breach of this article of the ICCPR.
The ICCPR entered into force for Australia on 13 November 1980. The ICCPR applies to all persons within the territory of a State Party regardless of their nationality or status as a non-citizen. [48] Thus, as with the CROC, the ICCPR applies to all asylum seekers, refugees and persons within Australia's jurisdiction whose applications for refugee protection have been rejected.
10.4.1 Article 26 of the ICCPR
The right to non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights.[49] The principle of non-discrimination in article 26 (set out in Appendix F to this Report) is reinforced by article 2 of the ICCPR which provides that:
Each State party … undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Convention, without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[50]
The obligation imposed by article 26 has both negative and positive aspects as a State Party must not discriminate when it enacts laws and it must also enact special laws to prohibit and afford effective protection against discrimination. In doing so, this article is aimed at ensuring substantive and not merely formal equality.
While article 26 is expressed in terms of the principle of equality and the law, it is clear the application of this article is not limited to discrimination arising out of the legislation of a State Party. This article prohibits "discrimination in law or in fact in any field regulated and protected by public authorities". [51]
The term "discrimination" used in articles 2 and 26 is not defined in the ICCPR. The Human Rights Committee (HRC) has stated that this term should be understood to mean "any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms". [52]
It is well established that these rights and freedoms need not arise under the ICCPR but may also arise under other human rights instruments. [53] For example, in Zwaan-de Vries v The Netherlands [54] and Brooks v The Netherlands ,[55] the HRC considered whether article 26 of the ICCPR could be invoked in respect of a right which is specifically provided for under article 9 of the ICSECR (article 9 recognises the right to social security and is set out in Appendix F to this Report). The HRC found that it could be so invoked. It stated that:
[a]lthough article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by that legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with article 26 of the [ICCPR].
It is equally well accepted that not every differentiation of treatment will constitute discrimination. There will be no breach of article 26 if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR. [57]
10.4.1.1 The first changes to the ASA scheme
In the Preliminary Report, Commissioner Sidoti found that the first changes to the ASA scheme breached article 26 of the ICCPR. This was due to the first changes excluding many child and adult asylum seekers from State provided financial assistance and medical services on the basis of their "other status" [58] ; that is, their status as asylum seekers who could not satisfy the new criteria for the ASA scheme. As at 1 October 1996, there were 693 asylum seekers who fell into this category.
There was no dispute between the parties that the first changes to the ASA scheme prevented asylum seekers with applications which had been at the primary stage for less than six months or before the RRT from being eligible for ASA assistance. I accept the assertion by the Centre and the ARC that a consequential effect of the removal of ASA assistance to asylum seekers at the review stage was that refugees, whose status as such was not recognised until the review process, remained ineligible for ASA benefits while awaiting completion of administrative procedures antecedent to the issue of a PV. [59] The Department submitted in its response of 18 February 2000 that the decision of the RRT is not conclusive of whether or not Australia owes an applicant protection obligations under the Refugee Convention and Protocol since further character checking may reveal circumstances where applicants should be excluded under article 1F of the Refugee Convention.[60] However, in the absence of any statistical material from the Department, I do not accept that the number of persons likely to be excluded under this article would be significant.
I also accept the submission of the Centre and the ARC that the new criteria for obtaining an exemption from the six month waiting period imposed by the first changes to the scheme rendered it more difficult, if not impossible, for asylum seekers suffering severe financial hardship to access ASA assistance. Asylum seekers who arrived in Australia indigent were unable to satisfy the exemption criteria as their financial hardship did not result from a "change in circumstances beyond the applicant's control" after arriving in Australia. It is not in dispute that, as a result of the ARC's objections to the first changes to the exemption criteria, most Divisions of the ARC withdrew from the exemption process between December 1996 and 30 April 1998. As the Department noted in their submission of 18 February 2000, this resulted in only eleven exemptions being granted during this period.
The primary argument of the Centre and the ARC is that the first changes to the ASA scheme resulted in many asylum seekers, including many children, suffering severe financial hardship. The Centre and the ARC provided examples and case studies of families being forced to live without basic necessities such as food, of not being able to afford basic medical care and of facing homelessness. Two case studies provided by the ARC raised particular concerns. In Case Study 3 a single mother, who had an application pending before the RRT, with five children under the age of thirteen years was forced to return to work after her ASA assistance was removed. In order to return to work, the woman withdrew her eldest child, aged twelve years, from school to look after the younger children including a baby. In Case Study 4 a single mother with three children lost her ASA assistance (as she and her children had applications pending before the RRT) and was forced to perform sexual favours in exchange for a reduction in rent. This family was subsequently found to be refugees.
In the Preliminary Report, Commissioner Sidoti found that the case studies supplied by the Centre and the ARC "provide concrete evidence of asylum seekers and their families who experienced severe hardship as a result of being ineligible at the RRT stage of their applications". This approach has been criticised by the Department who contend that these case studies were "at most, anecdotal and circumstantial evidence". [61]
I am, however, satisfied that these case studies provide evidence that asylum seekers and their families with applications at the primary [62] and review stages, as well as refugees awaiting the issue of their PVs, experienced severe hardship as a result of being ineligible for ASA assistance following the first changes. While it may be true that this evidence can be loosely categorised as "anecdotal" (although clearly not "circumstantial") I accord it substantial weight as I consider it to be both reliable and credible. The case studies were supplied by two reputable and representative bodies and provide direct evidence of matters within their professional knowledge and expertise. These organisations operate at the "grass roots" level and work directly with asylum seekers. They have firsthand knowledge of how the ASA scheme operates in practice and how the changes have impacted on particular asylum seekers. The accounts provided by them of the operation of this scheme are consistent and compelling.
The exclusion of child and adult asylum seekers from State provided assistance and medical services had the effect of nullifying and impairing the enjoyment by these asylum seekers of rights and freedoms under international human rights instruments on an equal footing with other members of the Australian community. For example, those asylum seekers were not able to enjoy fundamental rights recognised in articles 9, 11 and 12 of the ICESCR and articles 21, 23 and 24 of the Refugee Convention and Protocol on an equal footing with other members of the Australian community. At the time of the first changes, and continuing after 1 October 1996, members of the Australian community were generally able to enjoy these rights as they had access to Medicare to meet their health care needs and access to social security and other benefits when they were unable to meet their basic survival needs including for food and accommodation.
Commissioner Sidoti further found that the differentiation between those asylum seekers affected by the changes and members of the Australian community was not based on reasonable and objective criteria. The written submissions of the Department responded specifically to this finding and are detailed in Part 9.1 of this Report. After considering this response and all additional material provided by the Department, I find, consistently with Commissioner Sidoti, that the changes to the ASA scheme were not a reasonable or proportionate means of achieving the objectives set out at Part 4 of this Report.
Two of the Department's primary justifications for the first changes to the ASA scheme were the "large body of evidence of substantial abuse of Australia's refugee determination system and exploitation of processing delays" and the need to improve processing timeframes for refugees.[63] I will deal with each of these in turn.
(a) Abuse of the refugee determination system
Commissioner Sidoti made a preliminary finding that a reasonable and objective approach would require unambiguous empirical evidence that people were abusing the refugee determination system in significant numbers. Despite the Department's assertions that there was "compelling evidence", "clear evidence" and a "body of evidence" of abuse of the system, very limited evidence touching on this issue was actually provided by the Department to this inquiry. The evidence which was provided is as follows:
- statistics for the period October 1995 to September 1998 indicating the total number of successful PV applications at the primary and review stage; and
- the assertion by the Department that the first changes produced a decrease in the number of applications from low refugee producing countries while the applications from high refugee producing countries remained steady or increased.
The Department sought to prove that there was widespread abuse of the review determination system by relying upon statistical material indicating that in the period October 1995 to September 1998 the rate of affirmation of primary decisions by the RRT steadily increased. That statistical material indicates that between October 1995 and September 1996, 82 per cent of primary decisions were affirmed by the RRT; between October 1996 to September 1997, 88.5 per cent of primary decisions were affirmed by the RRT; and between October 1997 to September 1998, 90.1 per cent of decisions were affirmed. [64]
I do not, however, accept that the low rate of success at the review stage is evidence of such abuse. In order to meet its international obligations under the Refugee Convention and Protocol, Australia has developed a refugee determination system that assesses asylum seekers' claims for protection and provides procedural safeguards in the form of review by the RRT and the Federal Court. In my view, it is entirely legitimate for asylum seekers to pursue their applications through that system including to the review stages and they should not be penalised for doing so.
In fact, the statistical material establishes that after 1 October 1996 there was a greater need for asylum seekers suffering financial hardship to seek a review of the primary decision than for other applicants. The statistics provided by the RRT [65] indicated that applicants either in receipt of ASA benefits as at 1 October 1996, or identified by the ARC as experiencing financial hardship, had their unsuccessful primary decisions overturned at a much higher rate than other applicants. In the twenty four months following the changes, almost three times as many applicants in hardship were successful at the review stage compared to other applicants. This increased to four times as many applicants experiencing hardship in the six months to March 1998.
(b) Reduction in processing times
The Department asserted that the first changes to the ASA scheme were necessary to reduce processing delays at both the primary and the review stage. The Department asserted that asylum seekers without genuine claims caused such delays by clogging up the system. While this argument has some superficial appeal, it is difficult to see how it can withstand analysis. The assumption that a reduction in access to ASA assistance will increase the number of "genuine refugees" making PV applications must be seen as flawed. In the absence of evidence to suggest that applicants suffering financial hardship are more likely to make unmeritorious claims, a common sense approach would suggest that unmeritorious PV applications are as easily made by impecunious as solvent asylum seekers.
Furthermore, while the statistics indicate that there was a dramatic reduction in processing times at the primary stage, and the Department is to be commended for this, the first changes did not effect any change in the processing times for applications at the review stage by persons suffering financial hardship. For all applicants before the RRT, the average time taken to finalise applications was 346 days in 1995, 391 days in 1996, 303 days in 1997 and 287 days for 1998. [66] The processing times for asylum seekers suffering financial hardship was on average much higher than for other asylum seekers. In 1995 the average time taken to finalise an application was 401 days, in 1996 it was 387 days, in 1997 it was 394 days and in 1998 it was 316 days. [67] This is contrary to the assertion by the Department that review applicants suffering financial hardship were "afforded processing priority".
(c) Other considerations
My conclusion that the first changes to the ASA scheme were not a reasonable or proportionate means of achieving a legitimate end is further supported by the statistical material which establishes that a number of "genuine refugees" lost their right to ASA assistance following the first changes. In Case Study 1 a couple with a newborn baby lost their ASA assistance on 1 October 1996 as they had applications before the RRT. Six months later this family was recognised as refugees. In Case Study 5 a family group consisting of a husband, wife, their young child and the husband's elderly mother and father were not able to access any ASA assistance while their applications were before the RRT. This family had to survive without ASA assistance until the RRT eventually overturned the decision at the primary stage and this family were recognised as refugees.
When regard is had to the significant financial savings that resulted from the first changes to the ASA scheme, it is open to conclusion that this was the true motivation for the changes. In the year following the introduction of these changes, the amount of money paid out through the ASA scheme fell by almost 38 per cent and the amount paid through exemptions fell by 87 per cent. That is, between October 1995 and September 1996, $14,395,430 was paid in ASA benefits, with $1,055,069 being exemption payments, whereas between October 1996 and September 1997, $8,975,974 was paid in ASA benefits, with $136,873 paid in exemptions. [68]
The Department has acknowledged, as set out in Part 4 of this Report, that budgetary imperatives were a reason for the first changes to the scheme. In my view, in a developed country such as Australia, a denial of basic sustenance, living allowances and health care services to those within its jurisdiction suffering financial hardship cannot be justified by budgetary imperatives. This approach is supported by the HRC which, in cases involving allegations of discrimination with regard to social security payments, has been very reluctant to accept arguments that budgetary constraints provide a reasonable basis for differentiation in treatment. [69]
For all of these reasons, I find that the first changes to the ASA scheme breached article 26 of the ICCPR.
10.4.1.2 The second changes to the ASA scheme
The second changes to the ASA scheme permitted those adult asylum seekers suffering financial hardship, who fell within an exemption category (as set out in Part 2.3.2 of this Report), to access ASA assistance when their PV applications were less than six months old or at the review stage. The exempted categories included unaccompanied elderly persons over 65 years of age, persons unable to work because of physical or intellectual disability and full-time carers.
The second changes, however, did not make ASA assistance universally available to all adult asylum seekers suffering financial hardship where that financial hardship did not result from a change in circumstances since arriving in Australia. The ASA exemption guidelines still preclude single persons, couples without children and the majority of pregnant women from ASA assistance when their PV applications are less than six months old or at the review stage and prior to the issuing of their PV. The Centre, in its submission of 11 September 1997, noted that it:
continues to see refugee applicants who do not have children with them but who are nevertheless in extreme financial hardship and whose mental and physical health visibly deteriorates as the stresses and strains of trying to survive take their toll. The problem is especially serious for victims of past trauma and torture ….
In its submission of 25 May 2000, the Centre asserts that despite the second changes these "overall problems with the ASA [scheme] remain".
I am of the view that until ASA assistance is available to all adult asylum seekers suffering financial hardship, there will be a continuing breach of article 26 of the ICCPR. This is because adult asylum seekers who are not able to meet the ASA criteria for exemptions at the primary stage and at the review stage are excluded from State provided financial assistance and medical services. This exclusion has the effect of nullifying and impairing the enjoyment by this category of asylum seeker of rights and freedoms under international human rights instruments on an equal footing with other members of the Australian community. In particular, those asylum seekers are not able to enjoy the rights recognised in articles 9, 11 and 12 of the ICESCR and articles 21, 23 and 24 of the Refugee Convention. From the time of the second changes until the present, members of the Australian community are generally able to enjoy these rights as they have access to social security and other benefits to meet their basic survival needs including for food and accommodation and access to Medicare to meet their health care needs.
A good example of this denial of human rights is provided by Case Study 2 and Case Study 7. [70] In both these cases the asylum seekers were single and therefore, even after the second changes, had no access to exemptions at the primary stage or to ASA assistance while their cases were before the RRT. In Case Study 2 the asylum seeker was a resident in emergency accommodation for homeless men. He had spent most of the money he had brought with him to Australia staying in another homeless shelter. This man was receiving counselling from the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. As the Centre stated, "this inappropriate form of accommodation is exacerbating stress related problems that he has been experiencing". In Case Study 7 the asylum seeker was forced to sleep on the floor at the house of an acquaintance who required him to leave that house each morning and return at night. He was not provided with any food by this acquaintance and had to meet all of his living expenses out of the $30.00 per week provided by the ARC.
11. Recommendations
Section 29(2) of the HREOC Act requires that, where I conclude that an act or practice is inconsistent with or contrary to a human right, I should make findings to that effect and such recommendations including, where appropriate, recommendations for compensation as may be desirable to compensate and make good, to the extent possible, the harm or damage caused.
As a consequence of the findings in this Report, I make the following recommendations. I recommend that:
(a) in accordance with Australia's obligation under article 3 of the CROC, the best interests of the child be a primary consideration in all further changes made by the Commonwealth to the ASA scheme; and
(b) access to the ASA scheme be immediately reinstituted for all persons suffering financial hardship who have applications at the primary or
review stage.
12. The Department's reply to the findings and recommendations
By letter dated 5 February 2002, I sent my Notice of findings and recommendations pursuant to section 29(2) of the HREOC Act to the Department. I sought advice from the Department as to any action that has been taken or is being taken by it as a result of those findings and recommendations. I requested that this advice be provided by 5 March 2002. On 25 February 2002, the Department requested an extension of time in which to provide this advice. I granted an extension to 15 April 2002. On 11 April 2002, the Department sought a further three month extension until 15 July 2002. I acceded to an extension only for a further two weeks as I was of the view that three months was sufficient time for the Department to respond to my request for advice.
To date, no response to my request for advice has been received by the Department. I am therefore not aware of any action taken or proposed to be taken as a result of the findings and recommendations in my Notice.
1. The Commission's functions under the HREOC Act are set out in Appendix A.
2. On 24 July 2000 Commissioner Sidoti delegated his powers and duties in relation to this matter to me pursuant to section 19(2) of the HREOC Act. This delegation came into operation on 13 August 2000.
3. Letter from Frank Elvey of the Centre to the Commission dated
11 September 1997, page 3.
4. Letter from WJ Farmer, Secretary of the Department, to the Commission dated
18 February 2000, page 2.
5. A non-citizen in Australia lawfully on a valid visa to whom Australia has protection obligations under the Refugee Convention and Protocol may apply for a Protection Visa: section 36 of the Migration Act. Such a visa enables persons recognised as refugees to reside permanently in Australia.
6. Sections 411 and 412 of the Migration Act.
7. Sections 475 and 476 of the Migration Act.
8. The Minister will do so where it is in the public interest: section 417 of
the Migration Act.
9. Letter from Helen Williams of the Department to the Commission dated
6 August 1997, page 2.
10. The main exception is where a PV applicant has authority to work in Australia. Such permission enables asylum seekers to access Medicare benefits: section 10
of the Health Insurance Act 1973 (Cth).
11. About the Asylum Seeker Assistance (ASA) Scheme, Attachment A to the
letter of John Bloomfield from the Department to the Commission dated
17 November 1998.
12. Asylum Seeker Assistance Scheme (ASAS) Exemption Guidelines, Attachment B to the letter of John Bloomfield from the Department to the Commission dated
17 November 1998.
13. Department of Immigration and Multicultural Affairs, Asylum Seeker Assistance (ASA) Handbook 1998, Topic 8: Exemption - Application for Exemption to the ASA Eligibility Criteria (Schedule 1 of the Agreement), pages 21 and 22.
14. Department of Immigration and Multicultural Affairs, Asylum Seeker Assistance (ASA) Handbook 1999, Topic 8: Exemption - Application for Exemption to the ASA Eligibility Criteria (Schedule 1 of the Agreement), pages 22 and 23.
15. Department of Immigration and Multicultural Affairs, Asylum Seeker Assistance (ASA) Handbook 1999, page 6.
16. Department of Immigration and Multicultural Affairs, Asylum Seeker Assistance (ASA) Handbook 2000, page 6. The Asylum Seeker Assistance (ASA) Handbook for 2001 has not yet been finalised.
17. MPS 53/96.
18. Department of Immigration and Multicultural Affairs, Fact Sheet -
Budget '96, 3. Processing asylum claims, 20 August 1996.
19. Above n 17.
20. Above n 18.
21. Above n 17.
22. Above n 17.
23. Above n 18.
24. See pages 16 - 23.
25. Letter from WJ Farmer of the Department to the Commission dated
18 February 2000, paragraph 5.
26. Ibid, paragraph 25.
27. Above n 25, paragraphs 3 and 4.
28. Above n 25, page 2.
29. Above n 25, paragraphs 10 to 12.
30. Above n 25, paragraph 32.
31. Above n 25, paragraphs 58.
32. Above n 25, paragraph 47.
33. Above n 25, paragraph 48.
34. Above n 25, paragraphs 63 to 65.
35. Secretary,Department of Defence v HREOC and Ors (1997) 78 FCR 208.
36. "Human rights" are defined in section 3 as "the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised and declared by any relevant international instrument". On 22 December 1992, the Attorney-General declared that the CROC is a "relevant international instrument": section 47 of the HREOC Act.
37. Article 1 of the CROC.
38. United Nations Committee on Economic, Social and Cultural Rights, "The nature of State Parties' obligations", General Comment 3, HRI/GEN/1/Rev.2.
39. Ibid, pages 57- 58.
40. Article 3 makes it clear that the best interests of the child need only be a rather than the primary consideration: G Van Bueren, The International Law on the Rights of the Child, 1995, Martinus Nijhoff Publishers, London, at page 46; Minister of State of Immigration and Ethnic Affairs v Ah Hin Teoh, (1995) 183 CLR 273 per Mason CJ and Deane J at page 289.
41. (1995) 183 CLR 273.
42. In particular, see the decisions of Mason CJ and Deane J at page 289. But note the dissent of McHugh J at page 319.
43. See the letter from John Bloomfield of the Department to the Commission dated 17 November 1998 and also above n 25.
44. Persons without permission to work have no access to Medicare: see above n 10.
45. R Hodgkin and P Newell, Implementation Handbook for the Convention on the Rights of the Child, 1998, Atar SA, Geneva, pages 327 to 333.
46. This remains the current position, although there has been a slight rewording of this exemption category. Currently a pregnant asylum seeker or refugee "whose medical or social circumstances are such that her health or the baby's heath are at serious risk if she does not receive assistance" is eligible for ASA assistance at the primary stage, where her application is not six months old, and at the review stage.
47. Persons without permission to work have no access to Medicare: see above n 10.
48. Article 2(1) of the ICCPR.
49. United Nations Human Rights Committee, General Comment No 18 (1989), HRI/GEN/1/Rev.4, paragraph 1.
50. M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary, 1993, NP Engel, Kehl, pages 466 to 467.
51. Human Rights Committee, above n 49, paragraph 12.
52. Human Rights Committee above n 49, paragraph 7.
53. Nowak above n 50, pages 465 to 469.
54. Communication No. 182/1984 (adopted 9 April 1987).
55. Communication No. 172/1984 (adopted 9 April 1987).
56. Ibid at paragraph 12.4; Zwaan-de Vries above n 54 at paragraph 12.4.
57. Human Rights Committee above n 49, paragraph 13.
58. The Human Rights Committee has found that separate individuals cannot fall within the "other status" category; one must belong to a group of people similarly affected (Johannes Vos v The Netherlands Communication No. 218/86). In addition, the groups of persons must be "distinguishable" (Van Oord v The Netherlands Communication No. 658/95). The Human Rights Committee has found nationality (Gueye v France Communication No. 196/85 and Adam v The Czech Republic Communication No. 586/94), the distinction between "foster" and "natural" children (Oulajin & Kaiss v The Netherlands Communication No. 426/90) as well as the difference between students at public and private schools (Blom v Sweden Communication No. 191/85) to constitute "other statuses" for the purposes of admissibility of a complaint of a violation of the non-discrimination provisions of the ICCPR.
59. Case Study 1 and Case Study 5 provide examples of this.
60. Article 1F of the Refugee Convention provides that:
61. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
62. He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
63. He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
64. He has been guilty of acts contrary to the purposes and principles of the
United Nations.
65. See above n 25, paragraph 18.
66. For example, see Case Study 7, 8 and 12.
67. See Part 4 and 9.1 of this Report.
68. See Table 3 in Appendix F to this Report.
69. See Table 4 in Appendix F to this Report.
70. See Table 3 in Appendix F to this Report.
Last updated 27 June 2002.