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 Policy Brief 9 - Assessing Protection Claims at Airports: Developing procedures to meet international and domestic obligations 

 

  

Executive summary 

The policy for assessing claims for refugee and complementary protection at Australian airports needs to be reformed to ensure that those in need of protection are identified and not returned to harm. The current procedures, called ‘entry screening’, set out a streamlined process for assessing refugee and complementary protection claims with no access to review. This Policy Brief argues that they prioritise visa cancellations, mandatory detention and removal over protection needs.iii

This Policy Brief finds that Australia’s entry screening process and treatment of travellers who seek protection at Australian airports raise significant questions regarding fairness, transparency, efficiency and compatibility with the international and domestic legal frameworks of humanitarian protection.   

This Policy Brief critically analyses the legal and operational framework for handling protection claims made by people at Australian airports in light of Australia’s international protection obligations. It also examines the domestic legal framework which is claimed to provide the basis for airport screening procedures and through which Australia’s protection obligations are supposed to be given effect. This Policy Brief finds serious issues concerning transparency, legality and accountability, which require better Parliamentary intervention and oversight. 

Key findings and recommendations 

This Policy Brief recommends that the procedures for screening for asylum claims at Australian airports should be guided by international refugee and human rights law protection principles, and the legislative and international law frameworks established to give effect to those principles, as follows:  

  1. Consistent with the principles of non-penalisation, non-refoulement and the right to seek and enjoy asylum, visas should not be cancelled solely because a protection claim is raised in Australia. Protection claims should always be evaluated and no one should be put at risk of harm in their country of origin or a third country that poses a direct risk of harm, or lacks the capacity or legal framework to process the protection claim and ensure access to international protection. 

  2. Asylum screening procedures at airports should be established through legislation and should include the following safeguards:  
    • Applicants should be given a complete personal interview by a competent official from the Humanitarian Program section of the Department of Home Affairs. 
    • The screening should consider only whether an asylum application presents a prima facie protection claim in order for applicants to be referred to the full asylum procedure. Only applicants whose claims are determined to bear no rational relationship to the refugee definition or other grounds of protection, or are clearly fraudulent, should be excluded from referral. 
    • Applicants who are not referred for the full asylum procedure should be entitled to have the decision reviewed by a decision-maker independent from the Department of Home Affairs before they are removed from Australia. 
    • Applicants should have access to legal advice, competent interpreters and officials from UNHCR during both the preliminary decision and review stages. 
    • Applicants should not be removed from Australia until their protection claims have been finally determined, including any available judicial review. 

Based on these principles, this Policy Brief makes a number of specific recommendations for refugee and complementary protection claims arising at Australian airports. These are: 

  1. Entry screening procedures should conform with the rules of procedural fairness as required by common law and reflected in rule of law principles of international law. In addition to the safeguards outlined above, at a minimum, applicants should be given notice of the nature of the decision being made and provided with sufficient time and facilities to prepare their case. There must be disclosure of the substance of the information on which the decision is being made, and an opportunity to respond to relevant adverse information. 

  2. Detention should only be used as a last resort and be based on an individual assessment. If detention is required, it should be for the shortest time necessary, proportionate and subject to regular independent review. 

  3. Requests to access legal counsel or immigration forms should be fulfilled, and applicants should be provided with reasonable facilities to lodge a protection application, including online access. 

  4. Section 256 of the Migration Act should be amended to require officers responsible for detention to inform detainees of their right to legal counsel and other facilities. 

  5. Applicants should not have their visa cancelled when they seek asylum while in immigration clearance, failing which such cancellations should be reviewable. 

  6. Applicants who apply for protection while in immigration clearance should have access to permanent protection visas. 

  7. Carrier sanctions should not be imposed on airlines that carry passengers who ultimately receive protection in Australia. 

  8. The Department of Home Affairs should assess its data collection practices with reference to the refugee and complementary protection legal frameworks in order to identify shortcomings in data collection policies and/or processes. This should include recording reasons for visa cancellations, both within and outside Australia, as well as recording outcomes of all Duty Delegate screening decisions. 

  9. The Department of Home Affairs should ensure that record-keeping systems account for on-the-ground realities of officials who are required to enter data. This should include establishing a method for recording all protection claims made at or before immigration clearance, whether or not referred to the Duty Delegate, recording all referrals to the Duty Delegate and recording all removals of travellers ‘screened out’ after making a protection claim. 

  10. The Department of Home Affairs should regularly publish anonymised, disaggregated data on Duty Delegate screening decisions, protection claims made at or before immigration clearance, removals of travellers ‘screened out’ after making a protection claim, and reasons for visa cancellations. 

 

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.