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Legal and Constitutional Affairs Legislation Committee - Outcome 2

Estimates & Committees
Sarah Hanson-Young 28 Mar 2011

Outcome 2:

Senator HANSON-YOUNG-My first question is to seek an update to a question that I ask in this forum every estimates-that is, what is the number of people who currently either are in detention or have applications for protection who have already been assessed by the UNHCR in some type of offshore or third country facility?

Mr Metcalfe-Sorry, Senator. I will just get you to repeat the question. I am still trying to work out which program number or output we are in. The last few words made me think it was probably in 2.1, which is where we are.

Senator HANSON-YOUNG-It is in 2.1. That is my understanding and that is that advice I have been given. So it is in relation to how many people are currently awaiting the outcome of their application process for a protection visa who have already been assessed by the UNHCR somewhere else.

Mr Fleming-It is really not possible for us to have comprehensive statistics on that, because we do not always know whether the person has been mandated. For example, the clients themselves are sometimes not clear whether they have only been registered with UNHCR versus being mandated successfully and, in some of the transit countries, there is no refugee status determination that goes on. So it can come out at various points in the process. A lot of the time, by the time anybody raises UNHCR-mandated status, we are going to grant them protection anyway, so it becomes irrelevant.

Senator HANSON-YOUNG-But it is not irrelevant to my question. I have asked this question several times during this committee and you are the first person who has said that that information is not necessarily important. I have always been told that, as part of the application and assessment process, that is one of the things that you ask so, therefore, you would have that information. What I am asking is: how many people who are currently on the books having their applications processed do we know have either been mandated or simply registered? I take the point that there are two different stages.

Mr Fleming-My point is that we do not have comprehensive material on it. My intention was not to say that whether or not they have been mandated is unimportant. It is just that, if we are independently recognising them as refugees and granting them protection, we then do not need to go and follow up to find out whether they had in fact been mandated. We do have a process with UNHCR whereby we check with them and their records and often no answer has come back by the time we grant a protection visa.

Senator HANSON-YOUNG-Why is it that the department does not keep a log of that type of information? It would seem logical for us to be able to assess how successful our support and programs are for bodies like the UNHCR or the IOM in places like Indonesia to ascertain how many people are going through those processes versus how many people arrive in Australia through another means who have already been through that process only to be assessed all over again. In the context of the number of people currently held in detention and the time it is taking to process people's claims at the moment, surely that would be one thing you would be taking into consideration, if you want to streamline your processes better. It staggers me that you do not have that information or that you do not even have the ability to come up with that information.

Mr Fleming-Certainly in each individual case it is possible for the client to raise that they have been mandated and it may well be that, in the exchange of information we do with UNHCR, we find out that people are mandated, so there are cases where we find that out but we do not hold up finalising a case until we have an answer of whether they are mandated or not, which comes back to my point that we do not have comprehensive data.

Senator HANSON-YOUNG-I am not asking about how many individual cases are being held up because you are waiting for confirmation; I am asking how many people currently in the process have already been assessed by the UNHCR. You are saying you do not have that information.

Mr Fleming-That is correct.

Senator HANSON-YOUNG-Why doesn't the department collect that information?

Mr Fleming-We do not necessarily know. We have it on individual files where we have an answer, but there is-

Mr Metcalfe-I think what Mr Fleming is saying to you is that we would know it in individual cases, the question is whether the number of people currently in detention who have been mandated or registered by the UNHCR is aggregated into a report. We can check to see whether we have such a report, but I think that Mr Fleming is saying is that report may not necessarily be accurate because it depends on the person self identifying as having gone through that process-and many people do say they were registered with UNHCR in Malaysia, Indonesia, Pakistan or whatever. I think we will need to take it on notice and check whether we can produce it in aggregate form. I think we would place the caveat on it that any statistics are going to be somewhat unreliable because we may not have positive verification as to whether that has occurred.

Senator HANSON-YOUNG-I accept that. I also accept that, if you are doing some cross-referencing with UNHCR then you do at least know which information is more reliable than others. I think I have made my point that you collect the information in individual cases but you do not put this together. That is what you are telling me.

Mr Metcalfe-No, I did not quite say that. I said I am going to check whether that is the case. You would appreciate that we produce tens of thousands of reports on lots of different themes. Sometimes we just do not have knowledge of all the reports we produce and which ones are able to be made available. But we will check on that and come back to you.

Senator HANSON-YOUNG-Do you think it would be a helpful piece of information to have, in light of how these different programs interact?

Mr Metcalfe-It is a good point you raise. There is the aspect of what it means for the individual,

particularly the point Mr Fleming was making about whether it is a useful check on our processes. Normally, if we become aware that a person is mandated as a refugee, we are certainly at pains to ensure that the processes are as quick as they possibly can be. I think the broader point you are making is: are we seeing people arrive in Australia by irregular means who have already availed themselves of international protection, either having registered with UNHCR in some other country or, in fact, having been found to be a refugee. This is also an important point because it goes to the issue of whether people believe it is in their interests to pay people smugglers to travel in an irregular fashion, rather than having resettlement places made available to them and coming through a more regular type of means to Australia or one of the other resettlement countries.

Senator HANSON-YOUNG-I imagine it is information that would be very helpful, to paint a broader picture of those types of things. If you could take that on notice, please, and get back to us that would be very helpful.

Mr Metcalfe-Yes.

Senator HANSON-YOUNG-The second line of questioning I have is around the length of time and this might be something you need to take on notice because there are a variety of different time frames I want. On average, what is the length of time that people who are currently held in detention have been there?

Mr Metcalfe-I think we will have to take that on notice, and there will be widely varying experiences depending upon the person. There is a subset of people who are identified relatively quickly as being refugees, following our initial assessment of them, who do not have any security or health issues and are released quite quickly. A large number of people were subject to the processing suspension last year, which significantly added to the amount of time before they became available to us. And there are people who might still be awaiting some form of process and those people who have been found not to be refugees and who are pursuing review options. One statistic on the average length of detention could probably be provided but it would probably not help us very much in terms of individual experiences.

Senator HANSON-YOUNG-The policy position of 90 days is clearly not being adhered to.

Mr Metcalfe-For quite a lot of applicants it is not, particularly those who are-

Senator HANSON-YOUNG-Would that be for the majority of applicants?

Mr Metcalfe-I will correct myself on notice. I would say that we are probably now moving towards the majority, largely because of the processing suspension that has now worked its way through, and the High Court case has meant that we have to go back and start again with some applicants as well. So the combination of those factors would mean that for many people the process is extending beyond 90 days. There are other areas beyond the control of the department, such as security checking, for some people as well. Having said that, we remain determined to improve our processes and continue to recruit staff and other people, to try to ensure that we are processing applications properly but as quickly as possible.

Senator HANSON-YOUNG-Could I give you some time frames and have you could get back to me on notice? I would prefer this information today, if you are able to do that. I know you guys put out little tables anyway, so you have a lot of this information. What I want to know is how many people currently held in detention have been there longer than 90 days, how many have been there for six months, how many have been there for 12 months, how many have been there for 18 months and how many have been there for longer than two years?

Mr Metcalfe-That falls within program 4.3 and we may well be able to come to that when we get to that program.

Senator HANSON-YOUNG-I apologise if I missed this direct question from Senator Cash about ASIO assessments which you may already have answered-concerning people who have been successful to the point at which you recognise their need for protection and are simply waiting for the ASIO security clearance, how many are being detained?

Mr Metcalfe-Again, that takes us to 4.3. All aspects of the management status processing and detention of people who have arrived by boat fit under 4.3.

Senator HANSON-YOUNG-Maybe someone up the back has heard.

Mr Metcalfe-We will make sure they are expecting the question.

Senator HANSON-YOUNG-Could somebody give me an update as to where the complementary protection bill is and whether government is still committed to deliver it.

Mr Fleming-Yes, that is my understanding. The minister mentioned publicly last year that they were looking to re-introduce complementary protection legislation and that is in train.

Senator HANSON-YOUNG-So the department has prepared the draft legislation and it is ready to be introduced?

Mr Metcalfe-The introduction is a matter for the government. We can check with the minister as to whether he wants us to add anything but it is now a question for the government to proceed.

Senator HANSON-YOUNG-So the department has done the work it needs to do?

Mr Metcalfe-The matter has been to committee and some recommendations were made. I think all those issues are with the government.

Senator HANSON-YOUNG-Picking up on something you said to Senator Cash in relation to agreements with countries whereby somebody has been found not to be in need of protection and we return them, what is the reason we did not think-you might want to check Hansard if I have quoted you wrongly-an agreement was necessary with Sri Lanka?

Mr Metcalfe-Because essentially we have processes which appear to be quite appropriate for us and for Sri Lanka without the need for an agreement. The majority of countries readily take their own citizens home.

People are removed from Australia to the United Kingdom, to the United States, to Sri Lanka and to China.

Some countries for their own purposes believe it is best to put that in the form of an agreement. Sometimes that may have associated aspects of broader migration cooperation as part of that agreement. In the case of Sri Lanka, the high commission in Canberra and the government in Colombo are able to interact with us in a way that does not require a formal agreement to be in place. Essentially it is about them recognising that the persons are in fact citizens of their country and from an Australian point of view that there is no reason why it would not be safe to return that person.

Senator HANSON-YOUNG-What was the reasoning as to why we need an agreement with Afghanistan?

Mr Metcalfe-Afghanistan indicated its preference, in accepting the return of its nationals, that that be placed in the form of a memorandum of understanding and given the fact that there have been very significant flows of refugees both in and out of Afghanistan-people leaving and returning over the years-Afghanistan has quite a significant ministry associated with these issues and that is their preference as to how they will undertake the work.

Senator HANSON-YOUNG-When the agreement was signed and released, there was a lot of talk and a lot of emphasis from the minister put on the fact that we needed the agreement to protect the safety of those we would be returning. That was very much the emphasis put on by the minister. I am happy for people to disagree with that, but that was the emphasis put on why Australia thought the agreement was a good idea, why the minister believed it was. Accepting that that was the key reason for the agreement from Australia's perspective, surely in a country like Sri Lanka, with those types of protections of people who have said they believe they would be persecuted if they were sent home, we would want the same guarantee that those people would not be facing harm or persecution upon their return.

Mr Metcalfe-The agreement with Afghanistan does not suggest that people would be persecuted by the government of Afghanistan.

Senator HANSON-YOUNG-No, the whole point was that they would be protected.

Mr Metcalfe-Precisely. As I have said, each country has particular circumstances. In the situation of Afghanistan the view of the Afghan government has been that it prefers to have formal MOUs in place and has them in place for a number of countries. Other countries operate differently. Our satisfaction has to be there regardless of whether there is an MOU or not. We are very pleased that UNHCR is a party to the MOU with Afghanistan because the return of refugees and conditions within different parts of the country is, obviously, a key consideration. We are very pleased UNHCR is involved. We are pleased we have an MOU that governs our migration relationship with Afghanistan. None of that changes the fundamental fact that we would not return a person or have a person leave Australia if it were unsafe to do so according to the best possible advice and opinion that we have.

Senator HANSON-YOUNG-In relation to Sri Lanka you do not believe that that needs to be in an agreement with the government?

Mr Metcalfe-We believe that we are able to satisfy that without the need for an agreement or guarantees.

Senator HANSON-YOUNG-That is all my questions about outcome 2. I have plenty for outcome 4.




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