“We want to end the tick and flick approach of this [Labor] government that has seen nine out of 10 people found to be refugees when that doesn’t match what we are seeing in other places around the world and we want to end the process where ‘no’s turn into a 'yes’ in 80% of cases by these processes” - Opposition immigration spokesman Scott Morrison, press conference, 16 August.
Announcing the Coalition’s new asylum seeker policy alongside opposition leader Tony Abbott, Morrison said it was time to overhaul Labor’s “tick and flick approach”, which he said had led to high refugee acceptance rates compared with other countries. Morrison added that with 80% of initial refusals being overturned, it was “no wonder Australians are questioning whether this is a fair dinkum system that is operating under this government”.
So how much of that is true?
Morrison’s statement that about nine out of 10 asylum seekers being accepted as refugees in Australia is accurate if his claim is limited to asylum seekers arriving by boat. Morrison was clearly referring to boat arrivals at this press conference, even though at other times it hasn’t been made as clear.
This issue matters if you are comparing the acceptance rate with other countries. In Australia, asylum seekers have been broken into two categories since the Howard government introduced new policies targeting boat arrivals. Those categories are Irregular Maritime Arrivals (IMAs), meaning people arriving by boat, and Non-Irregular Maritime Arrivals (Non-IMAs), meaning people arriving by plane.
Since 2001, the processing of arrivals by plane has been consistent. People arriving at an Australian airport and claiming asylum are placed in detention in Australia, and have their claims heard by a migration officer in the first instance and, if rejected, by the Refugee Review Tribunal on appeal. If a claim is successful, the asylum seeker is granted a permanent protection visa.
In 2010-11, 25% of the 5494 applications from those arriving by plane were successful after their primary application, and 43.4% of 4840 applicants who had completed both a primary application and a final review process were successful. In 2011-12, the figures for people arriving by plane were 25% of 5792 successful at first instance, and 44% of 5159 successful after both primary application and review.
In contrast, people arriving by boat have been subject to a range of policies since 2001, most recently Labor’s new off-shore processing and resettlement agreement with Papua New Guinea. The success rate of applications for a protection visa of people arriving by boat has traditionally been considerably higher than the success rate of those arriving by plane.
Rates of acceptance for people arriving by boat after an initial assessment of claims were 38.3% of 5218 applicants in 2010-11 and 71.1% of 3825 applicants in 2011-12. Rates of acceptance for applicants whose primary and review processes had been completed were 93.5% of 2909 applicants in 2010-11, and 91% of 5240 applicants in 2011/12. So Morrison is about right when he says nine out of 10 people arriving by boat are eventually accepted as refugees.
In his press conference, Morrison drew a comparison between that figure and rates of acceptance “in other places around the world”. This is an inaccurate point of comparison. The figure that needs to be compared with international experience is the combined acceptance rate of asylum seekers arriving by both boat and plane in Australia, as other countries do not separate asylum seekers according to their mode of arrival.
Surprisingly, the Department of Immigration does not aggregate the figures for boat and plane arrivals. However, if the department’s figures above are combined, as I have done for this fact check, the success rate after primary application and review of all asylum seekers (boat and plane arrivals) was 62.2% of 7749 applications in 2010-11, and 67.7% of 10,399 applications in 2011-12. (Complete 2012-13 figures are not yet available.)
Great caution must be exercised in making comparisons with acceptance rates overseas. Difference in acceptance rates may have nothing to do with the systems of review of applications. Refugee-receiving countries around the world are dealing with populations from different regions. The levels of humanitarian crisis differ from country to country. And even where the types of crisis are similar, asylum seekers from some regions may fit neatly within the UN Convention’s definition of a refugee and be eligible for state protection, while others may not.
Furthermore, the rates of success of asylum seekers from the same country can vary markedly from year to year due to assessments of the country’s geo-political circumstances. Here in Australia, for example, for Afghan arrivals by plane, grants rates rose from 78% to 92% from 2010/11 to 2011/12.
However, to give some sense of comparison, the UNHCR has data for Refugee Recognition Rates and Total Recognition Rates, which includes other forms of complementary protection. In 2010, at a global level, the Refugee Recognition Rate was 30% globally and the Total Recognition Rate was 39%. In 2011, the Refugee Recognition Rate was 30% and the Total Recognition Rate was was 38%.
In 27 European Union countries in 2011, there was a 25% success rate at the first instance for people seeking asylum and a further 21% of applicants were successful on appeal. (Unlike in Australia, the figures are not available for the overall success rates after final appeals in the EU.)
In Canada, there was a 38% success rate after final appeal in 2010.
Among the main refugee-receiving industrialized countries, in 2011 Switzerland had the highest Total Recognition Rate at the first instance of 72%, while Finland’s rate was 67%.
From these claims, to the extent that comparisons can be made given the different approaches to collecting data, the application success rate in Australia is higher than the average in the EU, and higher than Canada, though it is still lower than some industrialised nations with the highest success rates.
Morrison also claimed in the press conference that 80% of rejected asylum claims are then overturned on review. Again, this figure is accurate only in relation to boat arrivals. In 2010-11, initial decisions were overturned on review 83% of the time for people arriving by boat, and in 2011-12, 82.4% of the time. Over the first three-quarters of 2012-13 (up until the end of March 2013), the rate dropped to closer to 70%.
The latest Asylum statistics — Australia report does not provide statistics on how many people who arrive by plane and have their applications for asylum rejected, but then accepted on review. However, based on the overall grant rates of 43.4% in 2010/11 and 44% and 2011/12, as discussed above, the overturn rate for these asylum seekers would have to be significantly lower than 80%.
Morrison is right to question such a high overturn rate. However, his suggestion that the overturn rate represents a “tick and flick” approach to refugee status determination misrepresents the rigorous administrative processes Australia has in place for determining asylum seeker claims to protection.
There are a range of explanations for the high overturn rate of primary applications on review. One is that the initial decision maker and the decision maker on review have a different understanding of what is required to satisfy the legal definition of a refugee. A second explanation is that the initial and final decision makers have made different assessments of applicants’ personal circumstances, and of the information related to the country from which the applicant is fleeing persecution. A third explanation is that although the decision makers have broadly the same understanding of the facts and the law, their assessments of whether the facts satisfy the legal test are different.
The high success rate on appeal does not necessarily suggest that there is something wrong with the process of review. Indeed, there are good reasons to believe that the decision of the review body is likely to be more accurate than the decision of the primary decision maker, given the legal and technical expertise of administrative appeals tribunals, and the fact that they apply the rules of evidence and protect procedural rights more consistently than initial decision makers.
In light of this, the Opposition’s plan to stop asylum seekers being able to seek a review of their case through the Refugee Review Tribunal or the Federal Court is almost certain to result in more applications for review in the High Court, which can scrutinise federal government decisions for “jurisdictional errors”. That would prove to be more costly and would be likely to lead to longer delays in the resolution of claims.
Morrison is broadly right. His reference to “nine out of 10 people” found to be refugees after arriving by boat is accurate. And he is correct that that 80% of primary decisions are being overturned on appeal.
As for whether Australia’s refugee acceptance rates are high compared with other nations, the only way to make meaningful international comparisons is by looking at all asylum seeker applications, not just those from people arriving by boat. When this is done, and to the extent that international comparisons are meaningful, Australia’s acceptance rate appears to be relatively high. This means Morrison’s comment that Australia’s acceptance rate “doesn’t match what we are seeing in other places around the world” is a reasonable assessment.
This assessment provides a thorough analysis of the complications that arise from trying to compare refugee status determination processes among countries.
There are two brief points to add to this fact check. Australia is the first country in our region that some asylum seekers reach where they are able to access refugee status determination processes. This may also explain the high volume of positive assessments of boat arrivals in comparison to other regions.
A second point is that last year’s Expert Panel on Asylum Seekers, led by retired Air Chief Marshal Angus Houston, recommended the need for a thorough review of the refugee status determination process. Its report found that there was a high final refugee approval rate for people arriving by boat to Australia, but added this was broadly consistent with UN High Commissioner for Refugee approval rates for similar caseloads.
As a result of the Expert Panel’s recommendation, a review of the refugee status determination process was ordered by the Gillard government and continued under Rudd. Whichever major party wins the election, no doubt they will continue with that review. - Sara Davies