After much controversy, the Senate passed the Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 late last week. One aspect of the law – the “fast track assessment” procedure – constitutes a radical shift in the manner in which a large number of asylum seekers’ claims for protection will be processed.

Research has demonstrated that long periods waiting for the processing of claims can lead to mental illness. A lack of work rights combined with ongoing uncertainty is also associated with deepening mental deterioration.

Asylum seekers in the current backlog have been waiting in limbo for almost two years to have their protection claims assessed, so the opportunity to have their claims heard will be welcome for many. However, the new assessment procedure carries real risks of privileging efficiency at the expense of fairness.

What is the procedure?

Fast-track assessments will apply to approximately 30,000 asylum seekers who arrived in Australia by boat between August 2012 and December 2013. The procedure will allow asylum seekers to make an application for protection to the Department of Immigration and Border Protection (DIBP).

Timeframes for the provision and assessment of claims will be short. Applications that are refused will be referred to a newly created Independent Assessment Authority (IAA). IAA reviews will be conducted “on the papers”; only in “exceptional circumstances” will the IAA accept or request new information or interview the applicant.

Some cases will be excluded from an independent merits review altogether. This includes cases where DIBP assesses the claims to be “manifestly unfounded”, where the asylum seeker relied upon a “bogus document” or had access to effective protection in another country.

Why was it introduced?

During Senate committee hearings, DIBP stated that without the new assessment procedure, it could take up to seven years to process the backlog.

DIBP said changes were needed to “deter abuse of the review system through the late presentation of claims that could reasonably have been presented earlier”, and to:

… deliver the consistent message that it is extremely important to provide sufficient evidence and information to establish protection claims up front.

International comparisons

Several countries use accelerated procedures to deal with asylum claims considered to be “manifestly unfounded” or where the asylum seeker is from one of a list of countries that are generally considered to be safe.

However, Australia has decided to use this procedure for a group that historically the statistics show have been found to be refugees. Departmental statistics indicate that over the four years prior to 2013, an average of about 70% of asylum seekers arriving by boat were determined (at first instance) to be refugees.

Also, 93% of those who had their applications reconsidered following independent review were later accepted as refugees.

Research on the use of expedited procedures in the US found that it led to an increase in the number of appeals to superior courts. This consequently increased costs and decreased efficiency. Similar findings have been made in relation to the UK’s Detained Fast Track (DFT) procedure.

The lack of appropriate time to seek and obtain legal assistance recently led the British High Court to find the DFT system unlawful because of an “unacceptable risk of unfairness”. After an investigation into the system, the UK parliament’s Joint Committee on Human Rights found that:

It is self-evident that some asylum seekers – most obviously torture victims and those who have been sexually abused – are unlikely to reveal the full extent of experiences to the authorities in such a short time period, and that this problem will be exacerbated where they are not able to access legal advice and representation and the support of organisations able to help them come to terms with their experiences.

Government policy in Australia is that no government-funded legal advice will be available to the majority of the legacy caseload. Funded legal assistance to prepare claims will be available only to those considered the “most vulnerable”.

An integrated mental health and legal response

Suicide is known to be the leading cause of premature death for asylum seekers in Australia. The forthcoming process will predictably be stressful, specifically in terms of mental distress, despair and deterioration.

People working closely with asylum seekers will encounter stories of personal sadness and uncertainty. Self-harm and suicidal behaviour among asylum seekers are likely to be associated with previous trauma, having an uncertain future, fear of return, and feelings of being under intense pressure and scrutiny.

Combining mental health needs and legal support is an increasing feature of a co-ordinated and much-needed response to assist asylum seekers in the community. The denial of legal assistance will not meet the desired objective for asylum seekers to fully articulate their claims at the earliest stage of the process.

For this reason, it is critical that the government fund adequate legal and mental health support during the refugee status determination process. Individual mental health assistance can be provided in conjunction with, during and after legal consultation.

Asylum seekers with an existing mental health condition who receive negative outcomes during the application process are particularly vulnerable. All asylum seekers should have mental health support available when decisions are handed down or shortly afterwards.

Australia is obligated to adopt a fair and effective system for determining who is in need of protection. The problem is whether it is possible for accelerated procedures to be both fair and efficient.

Mary Anne Kenny has received funding from the Australian Research Council. She receives sitting fees from the Department of Immigration and Border Protection.

Nicholas Procter has received grant funding from the NHMRC, ARC, Department of Health and Department of Immigration and Border Protection. He receives sitting fees from the Department of Immigration and Border Protection.