In 2015 the Abbott government established what it said was a fast-track asylum seeker process to deal with around 30,000 individuals from Afghanistan and other countries and who were not detained in offshore facilities like Manus Island and Nauru.
It is called the Independent Assessment Authority (IAA) and its role is to deal with cases when the Immigration Department has refused to grant a protection visa to an asylum seeker.
As someone who has acted for asylum seekers from Afghanistan over a number of years, if any conclusion can be drawn about how the Immigration Department and IAA has dealt with claims from Afghan citizens it is that it is either naive or too conservative about the risks to any persons who belong to groups such as the ethnic Hazara which are the target of the Taliban.
According to the IAA’s own figures between July 1, 2015 and June 30, 2021, of the 625 cases it has dealt with involving Afghan applicants seeking protection in Australia, an astonishing 83 per cent have confirmed the departmental decision to refuse the issuing of a visa.
The IAA process relies on what is termed country information. This means reports, in the case of Afghanistan, from Australia’s Department of Foreign Affairs and Trade, other governments and some NGOs, as well as media reports.
The legislation which introduced the IAA process handicaps asylum seekers. The review process is carried out without interviews.
There is only a limited capacity for an applicant for a protection visa to submit new and up-to-date information which was not given to, or available to, the Immigration Department official who first dealt with the case. You have to explain why that information was not handed over at that initial stage.
In the circumstances of Afghanistan in the past six years, this legislative hurdle preventing the taking into account of alternative information about those groups persecuted by Taliban, has prejudiced the chances of being accepted as a refugee.
A couple of examples provides a flavour of the mindset of the IAA process reviewers. In one case an individual of Hazara ethnicity and Shia religion feared harm from the Taliban because as a long-distance truck driver he had been regularly stopped, searched and even shot at by the Taliban.
His brother had been seriously injured in a terrorist attack. The IAA reviewer in essence said that the Taliban wasn’t deliberately targeting this man, and that if he returned to Afghanistan, so long as he kept his head down, he would not be targeted by them.
Reports from experts like Professor William Maley of the ANU, a leading scholar on the security situation in Afghanistan, were not taken into account by the reviewer.
In another case the IAA reviewer was of the view that a man who had previously driven transport for the Afghan government did not require protection because while there was violence by the Taliban in Kabul it was generally aimed at government officials and high-profile individuals.
In a third case the IAA reviewer concluded the risk of harm to Hazara Shia in Afghanistan was “confined to the credible but remote risk from infrequent high casualty attacks”. It is hard to know what “credible and remote” means.
The difficulty with the IAA process is that despite the country information indicating that Afghanistan has been a very dangerous place for many years, when the reviewer looks at the profile of the individual seeking asylum, there is a tendency to disbelieve aspects of the narrative and assume the person hasn’t got the sort of profile which will place them at risk of what is termed a “real chance” of persecution if they are forced back to Afghanistan.
This emphasis on the individual case means that the IAA review process often misses, or ignores, the big picture.
In 2018, writing on the Lowy Institute website, Professor Maley and Deakin University’s Dr Niamatullah Ibrahimi observed that the “vast majority of asylum seekers from Afghanistan who have sought protection in Australia in the last two decades have been of Hazara background, and many have come from the very districts now under attack”.
They rightly observed, “[s]o far, there has been an inclination among decision-makers who process asylum claims to treat areas such as Jaghori as safe. This view, always somewhat naive, is now completely unsustainable.”
Maley and Niamatullah argued for a complete moratorium on asylum seekers who have had their protection claims rejected being threatened with return to Afghanistan.
With millions likely to flee from Afghanistan now that the Taliban are back in control there is an urgent need for Australia to unwind its unfair laws and processes, such as the IAA, which are designed to make it as difficult as possible for asylum seekers to succeed in seeking our protection.
The expertise and independence of decision-making must be improved so that those who arrive in this country from Afghanistan from now are given every opportunity to make their case for asylum.
Greg Barns SC
Originally published in The Age on 18 August 2021.