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HREOC Report No. 17

Report of an inquiry
into a complaint by the Asylum Seekers Centre concerning changes to the
Asylum Seekers Assistance Scheme

HREOC Report No. 17


TABLE OF CONTENTS

1.
Introduction

2.
Undisputed Findings of Fact

3.
The Complaint

4.
The Department's Response

5.
The Australian Red Cross

6.
The centre's response to the Department's response of 6 August 1997

7.
Further responses by the Department

8.
Statistical material

9.
Written submissions in response to the preliminary report

10.
Findings and reasons for findings

11.
Recommendations

12.
The Department's reply to the findings and recommendations

APPENDICES


1. Introduction

This is a Report
of the findings and reasons for findings made by the Human Rights and
Equal Opportunity Commission (the Commission) following an inquiry conducted
by the Commission. The inquiry related to a complaint by the Asylum Seekers
Centre (the Centre) against the Commonwealth of Australia (the Commonwealth),
Department of Immigration and Multicultural Affairs (the Department).
This complaint was made in writing pursuant to section 20(1)(b) of the
Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC
Act) and alleged that changes to the Asylum Seekers Assistance Scheme
(ASA scheme) by the Department had breached the basic human rights of
people seeking refugee protection in Australia.

Pursuant to section
11(1)(f) of the HREOC Act [1] , the Centre's complaint
was initially investigated by the former Human Rights Commissioner, Mr
Christopher Sidoti and then, after his term ended on 13 August 2000, by
me. [2]

I have formed the
view that this matter is not amenable to conciliation. In a letter dated
11 September 1997 the Centre indicated that a satisfactory resolution
of the complaint would be for the Department "to develop a scheme
that allows for emergency assistance for cases of extreme need throughout
the primary and RRT [Refugee Review Tribunal] stages of processing of
applications". [3] Commissioner Sidoti then requested
that the Department advise whether it would be prepared to participate
in conciliation. By letter dated 16 January 1998 the Department stated
that "it would not be appropriate for the Department to enter into
a conciliation process on Government policy".[4]
At all times the Department has maintained that the changes to the ASA
scheme did not breach any of the Commonwealth's human rights obligations.

2. Undisputed Findings of
Fact

The factual basis
of this complaint is not in dispute and I therefore make the following
findings of fact:

2.1 Australia's
refugee determination system

As a State Party
to the 1951 Convention relating to the Status of Refugees as amended by
the 1967 Protocol relating to the Status of Refugees (the Refugee Convention
and Protocol), Australia has recognised the right of people to seek asylum
in Australia. This right has been incorporated into domestic law by the
Migration Act 1958 (Cth) (Migration Act) and associated Regulations
which establish Australia's refugee determination system.

A person seeking
refugee protection in Australia may make an application for a Protection
Visa (PV). [5] This application is first determined by
an officer of the Department (the primary stage).[6]
If the Department declines the application for a PV, there is a right
of review by the Refugee Review Tribunal (RRT) (the review stage). If
the application is also declined on review, there are further limited
avenues of review by the Federal Court [7] and also the
right to request that the Minister of the Department substitute his decision
for that of the RRT. [8]

2.2 The ASA scheme

The ASA scheme has
been operating since July 1992. It is a policy-based program and there
is no legislation covering its administration.[9] The
ASA scheme provides financial assistance to asylum seekers who have made
a PV application and, pending the determination of this application, are
unable to meet their most basic health care and living needs, including
for food, clothing and accommodation. As a non-citizen, an asylum seeker
is generally ineligible for all other forms of State funded assistance
including social security benefits and Medicare. [10]

The ASA scheme is
funded by the Commonwealth, administered by the Australian Red Cross (ARC)
and managed by the Department. The Department has responsibility for determining
the eligibility of recipients and the scheme is operated in accordance
with an annual agreement between the Commonwealth and the ARC.

In September 1996,
when the Centre lodged their complaint with the Commission, benefits under
the ASA scheme were payable to persons awaiting a decision at the primary
or the review stage. Asylum seekers were eligible for ASA assistance at
the primary stage if their application had not been determined within
six months. However, the Department, on the submission of the ARC, granted
exemptions to this waiting period in cases where certain guidelines were
satisfied. Prior to October 1996, the Asylum Seeker Assistance (ASA)
Scheme - Guidelines
for determining requests for exemption from the
eligibility criteria provided that:

an exemption from
the six month waiting period may be granted to individual ineligible asylum
seekers in the Australian community who demonstrate that:

  • they are unable
    to meet their basic living needs as a consequence of an unforeseen change
    of circumstances which occurred after their latest arrival in Australia;
    and
  • they have utilised
    and exhausted all avenues of support which they might reasonably be
    expected to pursue in their particular circumstances. In special cases,
    the absence of a link between the asylum seeker's inability to support
    him or herself and an unforeseen event following his or her arrival
    in Australia need not bar the grant of exemption.

"Special cases"
are defined as including but not limited to:

  • a dependent child
    in undue hardship; and
  • an individual
    whose dependency constitutes an unreasonable burden on a permanent resident
    or a charitable organisation. [11]

2.3 Changes to
the ASA scheme

2.3.1 The first
changes

In August 1996 the
Minister for the Department announced that there would be changes to the
ASA scheme. These changes came into effect on 1 October 1996 and made
two significant alterations to the scheme:

(a) asylum seekers
were no longer eligible for ASA scheme assistance at the review stage.
As a consequence, refugees, whose status as such had been recognised
by the RRT, were ineligible for ASA assistance while waiting the issuing
of their PV ; and
(b) new criteria governing exemptions from the six month waiting period
were imposed. Exemptions to the six month waiting period could only
be granted to an applicant where "exceptional circumstances beyond
the control of the applicant exist[ed]". [12]
The Asylum Seeker Assistance Scheme (ASAS) Exemption Guidelines provided
that "exceptional circumstances"

existed where:

  • an applicant can
    demonstrate severe financial hardship to the extent that basic needs
    cannot be met; and
  • financial hardship
    has resulted from a change in circumstances beyond the applicant's control.

"Change in circumstances"
included, but was not limited to:

  • in the case of
    a sponsor, withdrawal of support by a sponsor for reasons such as death,
    disability, bankruptcy, unemployment, serious illness[; or]
  • where there is
    no sponsor, funds available to support the applicant for their period
    in Australia have now been exhausted ? either because the period they
    were intended to cover has expired, or because they have been spent
    on unexpected and unavoidable emergency costs (e.g. serious illness
    or accident after arrival).

2.3.2 The second
changes

The Government made
further changes to the ASA scheme that came into effect on 1 May 1998
and 1 July 1999.

The changes made
on 1 May 1998 revised the criteria for exemption from the six month waiting
period introduced by the first changes. The new criteria provided that
a person was eligible for ASA assistance where that person was:

  • in financial
    hardship, unable to meet his or her basic needs of food, accommodation
    and clothing and has no continuing and adequate support within the community;

    and either
  • in an exemption
    category. That is, is either:
  • (i) an unaccompanied
    minor;
    (ii) an unaccompanied elderly person over 65 years of age;
    (iii) unable to work because of a disability or illness and who has
    supporting documentation from a medical officer;
    (iv) a parent with a child under 18 years of age for whom they are
    responsible and who resides at the same address;
    (v) a full time carer, where the person being cared for is living
    at the same address as the carer and is unable to work because of
    care responsibilities; or
    (vi) unable to work because of the effects of torture or trauma and
    who has supporting documentary evidence .
    [13] or

  • where the financial
    hardship resulted from a change in circumstances beyond their control
    since arrival in Australia.

The changes operative
on 1 July 1999 further amended the exemption criteria. From this date
there were two additional exemption categories, namely:

  • a person with
    a high risk pregnancy; and
  • a person who
    is the spouse, de facto or sponsored fiancé of a permanent resident
    or citizen of Australia or New Zealand, whose combined income is lower
    than ASA payments available to eligible asylum seekers of the same family
    composition. [14]

From 1 July 1999,
asylum seekers who satisfied the exemption criteria were also able to
gain access to ASA assistance at the review stage. However, in the 1999/2000
financial year only $210,000 was made available to asylum seekers with
applications at the review stage. [15] In the 2000/2001
financial year, this figure rose to $500,000. [16]

3. The Complaint

The Centre lodged
a written complaint with the Commission on 2 September 1996. This initial
complaint concerned the first changes to the ASA scheme that were effective
from 1 October 1996. However, as the inquiry progressed the Centre's complaint
broadened to encompass the second changes to the scheme effective from
1 May 1998 and 1 July 1999.

The Centre alleged
that the first and second changes to the ASA scheme placed Australia in
breach of article 26 of the ICCPR and articles 3 and 24 of the CROC. The
Centre also alleged that the Department had breached other articles of
the ICCPR and the CROC, but these allegations were not substantiated.

The Centre asserted
that from its inception the ASA scheme has provided basic welfare and
health assistance to asylum seekers. In particular, the Centre claimed
that the scheme has served as a safety net for those asylum seekers who
do not have permission to work or who have been unable to find work and
do not have other means of support. The Centre alleged that, as a result
of the first and second changes, the most needy and urgent cases, including
victims of torture and trauma, lack the basic resources to survive in
Australia while waiting for their PV applications to be determined.

In a subsequent letter
of 23 May 1997, the Centre asserted that as a result of the first changes
to the ASA scheme "the situation for many asylum seekers has deteriorated
significantly". The Centre reported that it and other agencies had
experienced a marked increase in the calls for assistance from asylum
seekers with "no money, no income and no means of support".
The Centre stated that since November 1996 there had been virtually no
exceptions granted to the six month waiting period for ASA benefits and
that:

many newly arrived
asylum seekers are in very serious financial hardship, lacking money
for accommodation, food, clothing, transport and so on. This is especially
true of those who do not have relatives or friends in Australia when
they arrive. Even many of those who do have someone to stay with - whether
a relative, friend or acquaintance they have made upon arrival - have
difficulties. Frequently, their hosts become less and less willing to
look after them as the weeks and months go by. Charitable organisations,
with already stretched resources, are struggling to respond to the increased
demands from desperate asylum seekers who have no source of income.
In particular, emergency accommodation is often difficult to access
and in many cases is unsuitable for asylum seekers, especially those
suffering from torture or trauma.

This very serious
situation has been exacerbated by the fact that it has become harder
for many asylum seekers to gain permission to work … Since permission
to work is a prerequisite for obtaining a Medicare card, many asylum
seekers also lack access to health care for long periods of time. Even
many of those with Medicare cards have difficulties when they are sick,
because they lack the money to pay for pharmaceuticals.

The Centre provided
two case studies of people adversely affected by the decision to make
asylum seekers at the review stage ineligible for ASA assistance. Case
Study 1 and Case Study 2 are set out in Appendix B.

4. The Department's Response

In its response to
the complaint of 6 August 1997, the Department referred to a media release
titled Speedier processing for asylum claims [17], a
Departmental Fact Sheet [18] and a letter from the Department
to the Secretary-General of the ARC dated 30 August 1996. These documents
indicate that the first changes to the ASA Scheme were made as a response
to the "spiralling costs" of the scheme [19]
and out of the perceived need to discourage persons, who lodged claims
with very little chance of success, from using the PV system to prolong
their stay in Australia. These persons were seen to be creating delays
in processing, causing a build?up in numbers of outstanding applications
and compromising the capacity of the Department to quickly and effectively
identify and assist the refugees in the caseload. [20]

The Government determined
that "in fairness to those people who are in genuine need of Australia's
protection it is imperative that [resources be] concentrated on those
applicants who are at the beginning of the protection visa system".[21]
The Minister in the media release also asserted that while applicants
have the right to pursue their review rights, the Government does not
have an obligation to provide applicants with assistance once they have
been assessed as not being refugees (at the primary stage).[22]
It was alleged that assistance to those who seek review encourages manifestly
unfounded claims. [23]

In this response
of 6 August 1997, the Department indicated that it "had not identified
any breaches of Australia's international obligations in the changes to
the ASA scheme". The Department asserted that:

[t]he primary determination
process provides a fair, just, quick and economical determination of
protection visa claims against the refugee convention. It is through
this process that Australia gives practical recognition to its international
obligations … In recognition of the hardship that some applicants
may face, the [RRT] is according high priority to applications from
people who were previously in receipt of ASA payments and those who
can demonstrate financial hardship.

5. The Australian Red Cross

Mr Ken Hastie, the
New South Wales Manager of the ASA scheme at the ARC, provided a statutory
declaration to the Commission dated 14 October 1997. He stated that "
there are two significant changes to the scheme that remain a bone of
contention for the ARC". The first related to the change to the eligibility
criteria which prevented persons with applications at the review stage
from receiving ASA assistance. In this respect Mr Hastie noted:

As at October 1996,
Red Cross has about 400 clients in New South Wales or, with members
of families counted … about 600 people under the ASA scheme. About
230 or over 50% became ineligible as at 1 October 1996. They were people
at the RRT stage or were people who had been approved as refugees by
the RRT but who had not yet received their Protection Visas. In one
such case, a single women with three children had been found by the
RRT to be a refugee in August 1996. She did not receive her Protection
Visa until November 1996. She became ineligible for assistance on 1
October 1996 and was without assistance for six weeks. Red Cross sought
to have her assistance continued until her PV was issued but this was
not possible as she fell outside the eligibility guidelines. This was
despite the fact that she had been found to meet the United Nations
definition of a refugee and was a person to whom Australia was obliged
to provide protection. Many similar cases have come to our attention
...

The second problematic
change related to the new criteria for the granting of an exemption:

In July 1993 at
the time of the first renewal of ASA contract (since its inception in
January 1993), the then Government introduced a six month waiting period.
To offset this, and at the insistence of the Red Cross, Red Cross could
seek an exemption for exceptional circumstances of hardship, and guidelines
and criteria were developed to assess who was eligible for an exemption.
The changes imposed by DIMA in October 1996 were intended to reduce
the number of approved exemptions from approximately 25 to 30 per month
to approximately 25 to 30 per year. The exemption guidelines imposed
by DIMA were (and remain) unacceptable to Red Cross and as a consequence,
most Divisions (states) of Red Cross withdrew from the exemption process.
In the past, an applicant for an exemption had to exhibit exceptional
need or a change in circumstances. This means that a person who arrives
in Australia and is destitute is not eligible because there is no change
in their circumstances. Consequently, need is no longer the primary
determinant for exemption and access to assistance. This remains unacceptable
to
Red Cross…

The failure of
the Government to assist persons in the review stage had resulted in
massive hardship and an increased demand on all welfare agencies and
charitable organisations. In NSW, an interagency comprising over 40
organisations had been formed with a view to finding co-ordinated solutions
to problems of the most extreme hardship.

The final matter
addressed by the ARC in their submission was the Department's assertion
that ASA recipients were afforded high priority by DIMA and the RRT. Mr
Hastie asserted that since 1 October 1996 there have been no ASA recipients
before the RRT. He stated that:

DIMA has claimed
that ex ASA clients continue to receive high priority before the RRT.
This is in fact incorrect. The RRT negotiated with the ARC in October
1996 for the expedition of those cases which ARC felt exhibited 'extreme
financial hardship'. More recently, the 'NSW Asylum Seekers Interagency'
has assumed the role of identifying such cases. Ex ASA recipients who
are not identified by the Interagency as being in extreme financial
hardship are not afforded expeditious processing by the RRT. As a result
of speedier processing by DIMA and significant staff changes at the
RRT, the Tribunal is now faced with a significant backlog of cases,
none of whom are entitled to ASA.

In a further submission
of April 1998, the National Office of the ARC provided seven case studies
that it claimed highlighted the hardship caused to many asylum seekers
by the first changes to the scheme. Case Study 3 to Case Study 9 are set
in Appendix C.

In this submission,
the ARC also advised that it had recently signed a new ASA scheme agreement
with the Department to take effect from 1 May 1998 and that this agreement
included new criteria for seeking exemptions.

6. The centre's response to
the Department's response of 6 August 1997

The Centre was given
a copy of the Department's response of 6 August 1997. In a letter of 11
September 1997, the Centre challenged a number of points made by the Department
in this response. The Centre disputed the Department's claim that its
primary determination processes were fair, just, quick and economical:

In a significant
number of cases known to me, current DIMA processing procedures of onshore
protection visa applications cannot be described as "fair, "just"
or "comprehensive". This year many refugee applicants who
have very strong claims have been rejected because DIMA case officers
have not adequately examined their claims. Many of these people will
subsequently be recognised as refugees by the Refugee Review Tribunal
(RRT) …

This rejection
of many refugee applicants with strong claims coincides with DIMA's
current practice of processing the vast majority of applications "on
the papers" (i.e. without interviews). Such rejections, coupled
with removal of ASA benefits to those people whose cases are with the
RRT, is resulting in great hardship for many asylum seekers with substantial
refugee claims. This is especially true for those who are not given
permission to work and who lack access to Medicare, an increasing percentage
of asylum seekers due to changed regulations and procedures, such as
the new rules that came into effect on 1 July 1997.

The Centre also disputed
that unsuccessful applicants at the primary stage who were in receipt
of ASA assistance were given high priority at the RRT review stage. It
stated that:

It has never been
the case that all ASAS recipients who are rejected at the primary stage
of application and who appeal to the RRT are afforded expeditious processing.
They are not automatically afforded high priority … In practice,
the prioritising of financial hardship cases at the RRT relies on concerted
advocacy from agencies and only relates to extreme need. The RRT has
come to an agreement with concerned agencies to prioritise cases of
extreme financial hardship, not just any financial hardship … [t]he
prioritising of such cases of extreme financial hardship still means
a wait of many months for a RRT decision. The RRT gives top priority
to detention cases and next priority to torture/trauma cases, and even
these very urgent cases generally take two or three months.

The Centre also commented
on the fact that:

… there have
been virtually no exemptions since November 1996, and I am advised by
the Australian Red Cross that because there are no acceptable exemption
guidelines, the Australian Red Cross takes the view that there are no
exemptions to the six month waiting period. As a consequence, no exemption
submissions have been made since March 1997 and no further exemption
requests will be submitted by the Australian Red Cross until acceptable
guidelines are negotiated.

In a further letter
dated 11 March 1998 the Centre provided three case studies of asylum seekers
who were ineligible for ASA assistance but who would have been eligible
prior to 1 October 1996. These are Case Study 10, 11 and 12 in Appendix
D.

7. Further responses by the
Department

The Department was
given an opportunity to respond to the Centre's responses of 11 September
1997 and 11 March 1998. In its response dated 17 November 1998, the Department
disputed that the ARC had withdrawn from the exemption process:

[f]ollowing the
1996?97 Budget a revised exemption mechanism was negotiated with the
Red Cross and came into effect in late 1996 and was in place throughout
1997. During the negotiations the Department considered all exemption
requests submitted by the Red Cross. During 1997 several Red Cross Divisions
did not submit any exemption requests to the Department. However, at
no time did Red Cross withdraw from that component of the ASA Agreement.

In a document dated
8 September 1998, attached to this letter titled About The Asylum Seeker
Assistance (ASA) Scheme
, the Department confirmed that a new ASA Agreement
with the ARC had come into effect on 1 May 1998 including "changed
eligibility criteria, a revised exemption mechanism, a documented needs
assessment and clauses allowing the Department to recover monies".

The Department further
contended in its response that "the Department was fully aware of
all relevant international obligations when the changes to the ASA scheme
were considered and implemented". In support of this proposition
the Department attached a copy of a legal advice that was provided by
the Legal Section of the Department on 11 April 1997 in response to the
Centre's complaint. This advice stated:

The complaint raises
several articles under the Convention on the Rights of the Child and
the International Covenant on Civil and Political Rights. To the best
of my knowledge advice on these was not sought from this Section at
the time the new ASA requirements were developed …
In relation to the specific articles raised it is difficult to give
a definitive view on whether the new arrangements could potentially
result in a breach of our obligations under the Convention on the Rights
of the Child (CROC). The obligations under CROC do not require that
specific measures be taken but measures should be consistent with our
obligations. The most specific obligation is that in article 3 of CROC
which requires that in all decisions affecting children their interests
need to [be] taken into account as a primary consideration. I do not
know if this is done in relation to ASA assessments but assume it is.
With this in mind, we do not believe the ASA scheme per se is in breach
of our obligations. However, in particular fact circumstances it may
be possible to establish that a breach has occurred in the individual
circumstances. Such a determination would depend upon all the circumstances
of the case not just ASA availability and would include considerations
such as whether alternative arrangements were available and so on. The
availability of discretion to depart from the norm in exceptional circumstances
assists in providing adequate flexibility so that breaches may be avoided
and supports a conclusion that any international obligations can be
met.

8. Statistical material

At the request of
the Commission, the Department and the RRT provided a quantity of statistical
information in relation to the ASA scheme to this inquiry. The Preliminary
Report contains six Tables that summarise this statistical evidence. These
Tables are reproduced in Appendix E to this Report. All of the statistical
data used in this Report has been obtained from these Tables.

9. Written submissions in
response to the preliminary report

On 22 September 1998,
Commissiohner Sidoti provided a preliminary report to the parties that
outlined his preliminary findings of fact and law in relation to the complaint.
Pursuant to section 27 of the HREOC Act, Commissioner Sidoti invited the
parties to make submissions orally and/or in writing in response to his
Preliminary Report. The parties elected to make written submissions.

9.1 Written submissions
by the Department

In its written submission
of 18 February 2000, the Department strongly contested any suggestion
the first changes to the ASA scheme had breached the human rights of asylum
seekers. The Department contended that:

[c]hanges to the
scheme have been driven by considerations of the most appropriate ways
of meeting international obligations. Providing a means of material
support to asylum seekers goes some way towards achieving this, although
it is just one measure of many. Fundamental in protecting the interest
of refugees is the implementation and maintenance of a refugee determination
process which delivers high quality and timely decisions. The 1 October
1996 changes went to these fundamentally important issues by removing
incentives for widespread misuse of the refugee determination process
by people who were not refugees and whose actions were directly and
seriously harming the interests of refugees. Misuse of review processing
was prolonging review application times. The changes were introduced
because abuse of the refugee determination system was damaging the interests
of refugees. They were designed to strengthen and support a refugee
determination system under considerable pressure, not to punish a particular
group. [25]

The Department confirmed
that it "was fully aware of all relevant international obligations
when the changes were considered and implemented". [26]

The Department also
confirmed in their written submissions that the ARC was opposed to the
changes to the exemption process and did not participate in the exemption
process between 1 October 1996 and 1 May 1998. As a result, between December
1996 and April 1998, very few exemption requests were received by the
Department and in some months none were received. The Department's records
indicate that eleven exemptions were approved during that period.

The Department stated
that it then:

consulted with
the ARC and interim changes to the exemption criteria were agreed. These
came into formal effect in the next Agreement in May 1998. This Agreement
increased the focus on assisting particularly vulnerable asylum seekers
… The current Agreement came into effect on 1 July 1999 and received
the unanimous endorsement of the ARC National Executive. It included
new arrangements providing access to ASA support for persons in financial
hardship who had sought a review by the RRT of their primary decision.
[27]

As a result of these
changes (the second changes) the Department asserted that:

the matters which
gave rise to the inquiry have since been addressed. Changes to the Scheme
introduced amendments providing effective access to ASA support in the
first six months after lodgment of an application for needy applicants
and since July 1999, have also provided for access to ASA at review.
It is therefore considered that the complaint should be considered "settled".
[28]

The Department's
written submissions then comment generally on the complaint. These submissions
contend that:

The high quality
of the primary determination process as well as the availability of
merits and judicial review (as well as the availability of a wide variety
of sources of publicly funded, private and community support for the
small number of applicants who find themselves in real need of material
support) has provided, and continues to provide, an ample "safety
net".

The 1 October 1996
changes to the Scheme … were considered a necessary response to
rapidly increasing, and non-affordable, levels of expense associated
with a growing proportion of abusive refugee claims. There was compelling
evidence that processing delays and the availability of ASA were powerful
attractions for those seeking to abuse Australia's refugee determination
system. Many asylum seekers were seeking to utilise the refugee determination
system to gain an immigration outcome, as evidence in part by high rates
of primary refusal, review take-up and review affirm rates.

As part of the
package of changes, and in the interest of refugees among ASA recipients,
review applicants were accorded processing priority. In addition, they
had access to support from the voluntary and non-profit community sector,
which received separate Commonwealth, State or local funding at an appropriate
level. Such recourse was accessible to aliens and nationals. [29]

The Department's
written submissions then address the findings in the Preliminary Report
in respect of the CROC and the ICCPR. These submissions are summarised
below.

9.1.1 CROC

Article 24

The Department does
not accept that there was any breach of Article 24 of the CROC as:

[e]mergency health
care and other forms of support were available at state and local government
level and from community groups. Australia has strong public health
programs with services such as hospitals and other services available
to asylum seekers, including children. A national network of torture
and trauma counselling services has been available for a number of years
for all asylum seekers, including children, who require support. Evidence
has not been provided that the children of asylum seekers did not have
access to health services or that the state did not make available the
'highest attainable standard of health'. [30]

9.1.2 ICCPR

Article 26

The Department asserted
in its written submissions that there had been no breach of this article
by the first changes to the scheme as:

in the face of
clear evidence of abuse, the government's decision was both balanced
and proportionate. The measure was taken as a result of a large body
of evidence of substantial abuse of Australia's refugee determination
system and exploitation of processing delays. The Department was well
aware that a major proportion of review applicants had their primary
determination affirmed and, based on application and review trends at
the time, was concerned at the dramatic increase in expenditure that
would result and the impact that such misuse of review opportunities
was having on prolonging the uncertainty of those small numbers of review
applicants who were refugees. The Government considered the measures
entirely appropriate and proportionate to the issue being addressed.
[31]

The Department provided
the following evidence that asylum seekers were abusing the system:

  • between October
    1995 and September 1996, 82 per cent of primary decisions were affirmed
    by the RRT. This and "other evidence relating to applicants indicate
    that the number of non-bona fide cases was - and remains - far from
    'insignificant'". [32]
  • it stated that:

[a]s a result of
the changes introduced in 1996 and 1997 primary and review applications
from traditionally low refugee producing nations decreased, while those
from high refugee producing nations remained steady. The flow-on rates
to review by the RRT from low refugee producing countries decreased
substantially, but the flow on rates from genuine refugee producing
countries generally remained steady or increased. [33]

The Department also
challenged the preliminary finding that "compared to the situation
prior to October 1996 more bona fide asylum seekers with genuine cases
are being forced to consider seeking a review by the RRT to ensure their
claims are properly assessed by Australian authorities". The Department
relied on the fact that from 1 October 1995 to 30 September 1996, 623
decisions at the primary stage were set aside compared to 511 in the period
1 October 1996 to
30 September 1997.

In conclusion the
Department stated that it:

believes that the
Government's changes to the Scheme were properly balanced against public
interest considerations and in appropriate proportion to the serious
budgetary impact of misuse of the refugee determination system and the
deleterious impact on bona fide applicants flowing from that misuse.

The Department
has actively monitored the implementation of the changes and their impact
on community organisations as well as applicants. As a result the scheme
has been amended to expand the exemptions providing access to asylum
seekers within the first six months of lodgement and at review.

These measures,
in addition to the provision of quick and high quality refugee determinations,
ensures that Australia meets its international protection obligations,
and enables provision of material support to those experiencing real
hardship. [34]

9.2 Written submissions
by the Centre

By way of submission
dated 25 May 2000, the Centre acknowledged that there have been some positive
changes to the ASA scheme since the Centre's initial complaint. However,
the Centre asserted that the "overall problems with the ASAS remain".
The Centre suggested the second changes made by Government to the ASA
scheme were a realisation on the Department's part that the earlier provisions
were "unacceptable".

The Centre highlighted
the following contentions in their submission:

  • Asylum seekers
    who are successful before the RRT are still denied access to the ASA
    scheme prior to the issue of their PVs, which can take anything "up
    to six months or more".
  • The Department's
    suggestion that asylum seekers have access to support from the voluntary
    and non-profit community sector is "totally outrageous and untrue".

    The first response
    of the community sector to the October, 1996 changes, was to hold
    a meeting conducted at the Asylum Seekers Centre in November, 1996
    attended by all major agencies and many smaller ones that interact
    with asylum seekers. The clear indication from the meeting was that
    no agency had the funds to adequately support asylum seekers. This
    meeting was the beginning of the NSW Asylum Seekers Interagency
    which still meets bi-monthly and whose members still do not have
    viable solutions for those asylum seekers who are unable to access
    ASA.

  • We are aware
    that the Australian Red Cross NSW implemented an emergency assistance
    programme in late 1996 which was designed to offer limited assistance
    to those asylum seekers who were seen as being most vulnerable. The
    few who were able to access this assistance have been provided with
    $45 per person per fortnight. Not enough money to survive in the Australian
    community for a fortnight. As far as we are aware, this is the only
    money available to asylum seekers not eligible for ASA. The vast majority
    of asylum seekers with applications before the RRT were unable to
    access any form of welfare assistance.

  • While there are
    new criteria for asylum seekers to obtain an exemption to the six month
    waiting period for ASA assistance these criteria do not permit the provision
    of ASA assistance to asylum seekers on the basis of extreme hardship
    alone. The new guidelines preclude single asylum seekers, couples without
    children and the majority of pregnant women from ASA assistance.
  • The Centre highlighted
    that:

    ASAS provided
    health care (including pharmaceuticals) to those without access
    to Medicare. Having been denied access to ASAS, those without Medicare
    had no access to any form of health support. This remains the case
    today and all too often we are forced to tell pregnant women that
    they should present at the emergency labour ward of their nearest
    hospital when they go into labour. They do not have any medical
    records to take with them about the management of their pregnancy.

    Families are
    forced to decide whether to obtain necessary medication at the expense
    of other essential items (e.g. food). People are forced to forego
    necessary treatment because they can't afford the cost of a visit
    to a GP.

  • As a result of
    new procedures where fewer interviews with asylum seekers are conducted,
    a greater number of refugees are "slipping through the net"
    and needing to make application to the RRT.
  • The Department's
    assertion that refugee applications from refugee producing countries
    has remained steady during 1996 and 1997 would "support the contention
    that refugees are being forced to suffer as a consequence of the changes".

9.3 Further written
submissions by the Department

The Department provided
further written submissions dated 18 May 2001 responding to the Centre's
written submissions of 25 May 2000. In those submissions the Department
contended that:

  • It is not correct
    to suggest that applicants are excluded from the ASA scheme while their
    visas are being issued. If a person has ASA at the review stage as a
    consequence of the second changes to the scheme, that person continues
    to have ASA until a visa is issued.
  • Like ASA recipients,
    Australian nationals must satisfy eligibility criteria to gain access
    to Australia's social welfare system. Australian nationals accessing
    benefits can receive differing levels of support depending on legislative
    criteria setting out eligibility for particular payments and assessments
    of their means. Nationals can also be excluded from access to benefits
    if they fail to take specified actions, for example pursuit of employment
    opportunities … Because ASA is administratively based, the exemptions
    mechanism is broader and more flexible than is the case for the mainstream
    social benefits system. It is noteworthy that in the 10 months to 30
    April 2001, of the approximately 240 cases approved for ASA, 208 were
    approved through the exemption process.
  • Trauma and torture
    counselling services are specifically funded to provide assistance to
    asylum seekers.
  • Community organisations
    will provide services to asylum seekers even though they receive no
    clearly targeted funding from the Commonwealth. However, the Department
    did not dispute that the funding guidelines to many community sector
    organisations preclude the use of those funds for non-residents.
  • The exemption
    criteria, before and after October 1996, which allowed applicants access
    to ASA within six months of the date of their application provided an
    appropriate mechanism to meet Australia's obligations under CROC.
  • The Department
    asserted that the Centre's written submissions contain "errors
    and distortions in relation to the availability of emergency health
    care by asylum seekers".

The [Centre's]
claim that health care is still not available to children in many
instances … is incorrect. Emergency health care is available
to all persons from casualty departments at public hospitals throughout
Australia where any basic health care needs are able to be addressed
…

Those people
without Medicare who seek treatment at a public hospital are not turned
away, but may be asked to pay for the services they receive at the
discretion of the hospital concerned depending on an assessment of
their needs. Many members of the Australian community rely on hospital
casualty departments for their health care needs as no doubt do other
temporary residents who do not have Medicare access. [The Centre]
has presented no evidence that its scenario of a pregnant woman relying
on casualty and non-specialist care presenting to a hospital without
detailed medical history of the pregnancy is in any way exclusive
to asylum seekers, or indeed, non-Australian nationals. In many instances
Australians may be unable to provide medical records. Many Australian
families also need to make financial choices regarding the purchase
of medication.

Additionally
when an asylum seeker cannot meet health care costs incurred because
they do not have Medicare access, this can be taken into account in
assessing financial hardship for the purpose of providing access to
the ASA scheme and the related health care provided in that scheme.
In these circumstances, the applicant may be eligible for an ASA exemption
and receive health care assistance under ASA if they do not have Medicare
coverage.

  • Article 26 of
    the CROC is qualified by the need for the provision of social security
    to be in accordance with national law, such as the Migration Act, in
    combination with other relevant legislation.
  • The Centre's
    concern that refugees are slipping through the net is unfounded.

Recent statistical
information shows that the RRT set-aside rate for applicants in the community
is falling not increasing. Additionally, the UNHCR in its submission to
the Senate Legal and Constitutional References Committee Inquiry into
the Operation of Australia's Humanitarian and Refugee Program commented
that 'Australia has established an elaborate and sophisticated system
for the consideration of individual asylum applications'. In our view
this supports the Department's position that our primary decision-making
processes are robust and reliable.

  • Single persons,
    couples without children and the majority of pregnant women can apply
    for exemptions if they are in financial hardship and that hardship was
    caused by a change in circumstances.

In conclusion, the
Department asserted that the submission by the Centre "does not provide
any further substantive information either to contest the matters put
in the Department's response to the complaint or to usefully contribute
[to] the resolution of the … complaint."

10. Findings and reasons for
findings

The Commission is
required by section 11(1)(f)(ii) of the HREOC Act to inquire into:

  • any act or practice
  • that may be inconsistent
    with or contrary to any human right.

10.1 Was there
an act or practice?

Section 3 of the
HREOC Act defines an "act" or "practice" as including
an act or practice done by or on behalf of the Commonwealth or an authority
of the Commonwealth. These words have their ordinary meaning: that is,
the noun "act" denotes a thing done and the noun "practice"
denotes a course of repeated conduct.[35]

The Department makes
clear in its letter dated 6 August 1997 that all changes to the ASA scheme
were the result of administrative decisions taken by the Commonwealth.
Accordingly, I am satisfied for the purpose of section 3 of the HREOC
Act that the first and the second changes to the scheme were acts done
by the Commonwealth.

10.2 Were the
acts inconsistent with or contrary to any human right?

"Human rights"
are defined in section 3 of the HREOC Act as including the rights and
freedoms recognised in the ICCPR and the CROC. [36]

10.3 Were the
acts inconsistent with and/or contrary to the human rights recognised
in the CROC?

The Centre alleges
that the changes to the ASA scheme breach articles 3 and 24 of the CROC.
The CROC was adopted by the United Nations General Assembly on 20 November
1989. Australia ratified the CROC on 17 December 1991 and it came into
effect for Australia on 16 January 1991. The CROC applies to all human
beings below the age of eighteen years [37] within the
Australian jurisdiction. That is, the CROC applies to child asylum seekers,
child refugees and also children whose application for refugee status
has been refused.

10.3.1 Implementation
of the CROC by Australia

Article 4 of the
CROC obliges State Parties to implement the CROC articles enshrining economic,
social and cultural rights "to the maximum extent of their available
resources". Neither the CROC nor the Committee on the Rights of the
Child (the Committee) have articulated which specific articles are to
be regarded in this way, although it can be argued that all of the articles
considered in this Report fall within the category of economic, social
and cultural rights.

Furthermore, the
Committee has not provided any guidance as to how this part of article
4 is to be interpreted. The concept of the progressive realisation of
economic, social and cultural rights is not unique to the CROC. The International
Covenant on Economic, Social and Cultural Rights (ICESCR) contains a similar
concept in article 2.1, by providing that a State Party is to take steps
"to the maximum of its available resources with a view to achieving
progressively the full realization" of the rights recognised in the
ICESCR "by all appropriate means". In 1990, the Committee on
Economic, Social and Cultural Rights made a detailed General Comment in
relation to this article. [38] This Committee stated
that:

The concept of
progressive realization … imposes an obligation to move as expeditiously
and effectively as possible towards that goal … [T]he Committee
is of the view that a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights
is incumbent upon every State Party. Thus, for example, a State Party
in which any significant number of individuals is deprived of essential
foodstuffs, of essential primary health care, of basic shelter and housing,
or the most basic forms of education, is prima facie, failing to discharge
its obligations under the Covenant. If the Covenant were to be read
in such a way as not to establish such a minimum core obligation, it
would largely be deprived of its raison d'etre. By the same token, it
must be noted that any assessment of whether a State has discharged
its core minimum obligation must also take account of resource constraints
applying within the country concerned … In order for a State Party
to be able to attribute its failure to meet at least its minimum core
obligations to a lack of available resources, it must demonstrate that
every effort has been made to use all resources that are at its disposition
in an effort to satisfy, as a matter of priority, those minimum obligations
… [39]

The Department has
not, at any point in this inquiry, raised any argument concerning Australia's
ability to fully implement the CROC articles pertaining to economic, social
and cultural rights. For the purpose of this inquiry it is therefore assumed
that Australia possesses sufficient resources to achieve the full realisation
of all of the rights recognised in the CROC.

10.3.2 The first
changes to the ASA scheme

10.3.2.1 Article
3 of the CROC

Article 3, which
is set out in Appendix F, obliges State Parties to have the best interests
of the child as a primary consideration [40] in all
"actions concerning children". The decision to make changes
to the ASA scheme was clearly an "action" and it was one that
"concerned" children. An immediate result of the Commonwealth's
decision was that from 1 October 1996 payment of ASA benefits to 24 per
cent of existing child recipients ceased; that is, payments to 214 persons
under 18 years of age ceased.

The fact that the
changes to the scheme were not directed specifically at children does
not mean that article 3 has no application to the actions of the Commonwealth.
In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh
[41] a majority in the High Court rejected the argument
that the provisions of article 3 were intended to apply only to "actions"
that were directed at children and not those that merely have consequences
for children. [42] The majority stated that the objects
of the CROC will best be achieved by giving the word "concerning"
a wide-ranging application.

The Department has
provided an assurance that it was "fully aware of all relevant international
obligations when the changes to the ASA scheme were considered and implemented".
[43] No evidence has been provided, however, that there
was any consideration of the extent to which the first change to the ASA
scheme conformed with article 3 of the CROC. No mention of this consideration
is made in any of the policy documents, press releases, responses or submissions
provided by the Department to this inquiry. Indeed, there is evidence
to the contrary. In the legal advice of 11 April 1997, referred to in
Part 7 of this Report, the Department's Legal Section indicated that no
advice was sought from it in relation to possible compliance with the
CROC at the time the new ASA requirements were developed.

Accordingly, after
a consideration of all evidence before this inquiry and the submissions
of the parties, I am of the view that the best interests of the child
were not a primary consideration in making the first changes to the ASA
scheme. I find, therefore, that article 3 of the CROC has been breached.

10.3.2.2 Article
24(2)(d) of the CROC

Article 24(2)(d)
requires that State Parties take measures to ensure appropriate pre-natal
and post-natal health care is available for mothers. This article is set
out in Appendix F to this Report.

The Centre has asserted
that, as a result of the first changes, pregnant asylum seeker women in
financial hardship did not have access to any appropriate pre-natal health
care. It was argued that any pre-natal health care for these women was
limited to the care they received upon presentation to the emergency labour
ward of a public hospital immediately prior to or during childbirth. The
Department has rebutted this submission by asserting that this scenario
is not exclusive to asylum seekers.

I accept that the
first changes to the ASA scheme were in breach of article 24(2)(d). As
a consequence of these changes, pregnant asylum seeker and refugee women
without permission to work [44] and suffering financial
hardship were denied "appropriate pre-natal care". I do not
accept that the availability of assistance at the casualty Department
of a public hospital satisfies Australia's obligations under this article.
Australia is required, at a minimum, to provide all pregnant women with
access to ongoing management of, assistance and information in relation
to their pregnancy.[45] The fact that pregnant Australian
nationals rely on casualty and non-specialist care does not detract from
Australia's obligation under this article.

10.3.3 The second
changes to the ASA scheme

10.3.3.1 Article
3 of the CROC

It is not apparent
from the minimal information provided by the Department that the best
interests of the child were a primary consideration in the decision to
make the second changes. In its submissions of 18 February 2000, the Department
acknowledged that the second changes to the scheme were a result of monitoring
the implementation of the first changes and their impact on community
organisations. This submission makes no reference to the impact of the
second changes on children or the relationship between the ASA scheme
and Australia's obligations under CROC. The submission states that "[t]hese
measures … ensure that Australia meets its international protection
obligations [presumably under the Refugee Convention and Protocol] and
enables provision of material support to those experiencing hardship".

I find, therefore,
that the best interests of the child were not a primary consideration
in making the second changes to the ASA scheme and that article 3 of the
CROC was breached.

10.3.3.2 Article
24(2)(d) of the CROC

As a result of changes
to the eligibility criteria effective from 1 July 1999, asylum seeker
and refugee women with "high-risk" pregnancies in financial
need were given access to ASA health care services at the primary and
review stages.[46] While these changes went some way
towards fulfilling Australia's obligations under article 24(2)(d) of the
CROC, they fall short of doing so completely. Asylum seeker and refugee
women without permission to work [47] and suffering
financial hardship who do not have high-risk pregnancies continue to be
denied access to pre-natal services. Until there is unlimited access for
pregnant asylum and refugee women to ASA health care assistance (or an
equivalent), Australia will continue to be in breach of this article.

10.4 Were the
acts inconsistent with and/or contrary to the human rights recognised
in the ICCPR?

The Centre alleged
in its initial letter of complaint dated 2 September 1996 that the Commonwealth's
changes to the ASA scheme breached article 26 of the ICCPR. The Preliminary
Report found a breach of this article of the ICCPR.

The ICCPR entered
into force for Australia on 13 November 1980. The ICCPR applies to all
persons within the territory of a State Party regardless of their nationality
or status as a non-citizen. [48] Thus, as with the CROC,
the ICCPR applies to all asylum seekers, refugees and persons within Australia's
jurisdiction whose applications for refugee protection have been rejected.

10.4.1 Article
26 of the ICCPR

The right to non-discrimination,
together with equality before the law and equal protection of the law
without any discrimination, constitutes a basic and general principle
relating to the protection of human rights.[49] The
principle of non-discrimination in article 26 (set out in Appendix
F
to this Report) is reinforced by article 2 of the ICCPR which provides
that:

Each State party
… undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognised
in the present Convention, without discrimination of any kind, such
as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.[50]

The obligation imposed
by article 26 has both negative and positive aspects as a State Party
must not discriminate when it enacts laws and it must also enact special
laws to prohibit and afford effective protection against discrimination.
In doing so, this article is aimed at ensuring substantive and not merely
formal equality.
While article 26 is expressed in terms of the principle of equality and
the law, it is clear the application of this article is not limited to
discrimination arising out of the legislation of a State Party. This article
prohibits "discrimination in law or in fact in any field regulated
and protected by public authorities". [51]

The term "discrimination"
used in articles 2 and 26 is not defined in the ICCPR. The Human Rights
Committee (HRC) has stated that this term should be understood to mean
"any distinction, exclusion, restriction or preference which is based
on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status and which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise by all persons, on an equal footing,
of all rights and freedoms". [52]

It is well established
that these rights and freedoms need not arise under the ICCPR but may
also arise under other human rights instruments. [53]
For example, in Zwaan-de Vries v The Netherlands [54]
and Brooks v The Netherlands ,[55] the HRC considered
whether article 26 of the ICCPR could be invoked in respect of a right
which is specifically provided for under article 9 of the ICSECR (article
9 recognises the right to social security and is set out in Appendix
F
to this Report). The HRC found that it could be so invoked. It stated
that:

[a]lthough article
26 requires that legislation should prohibit discrimination, it does
not of itself contain any obligation with respect to the matters that
may be provided for by that legislation. Thus it does not, for example,
require any State to enact legislation to provide for social security.
However, when such legislation is adopted in the exercise of a State's
sovereign power, then such legislation must comply with article 26 of
the [ICCPR].

It is equally well
accepted that not every differentiation of treatment will constitute discrimination.
There will be no breach of article 26 if the criteria for such differentiation
are reasonable and objective and if the aim is to achieve a purpose which
is legitimate under the ICCPR. [57]

10.4.1.1 The first
changes to the ASA scheme

In the Preliminary
Report, Commissioner Sidoti found that the first changes to the ASA scheme
breached article 26 of the ICCPR. This was due to the first changes excluding
many child and adult asylum seekers from State provided financial assistance
and medical services on the basis of their "other status" [58]
; that is, their status as asylum seekers who could not satisfy the new
criteria for the ASA scheme. As at 1 October 1996, there were 693 asylum
seekers who fell into this category.

There was no dispute
between the parties that the first changes to the ASA scheme prevented
asylum seekers with applications which had been at the primary stage for
less than six months or before the RRT from being eligible for ASA assistance.
I accept the assertion by the Centre and the ARC that a consequential
effect of the removal of ASA assistance to asylum seekers at the review
stage was that refugees, whose status as such was not recognised until
the review process, remained ineligible for ASA benefits while awaiting
completion of administrative procedures antecedent to the issue of a PV.
[59] The Department submitted in its response of 18
February 2000 that the decision of the RRT is not conclusive of whether
or not Australia owes an applicant protection obligations under the Refugee
Convention and Protocol since further character checking may reveal circumstances
where applicants should be excluded under article 1F of the Refugee Convention.[60]
However, in the absence of any statistical material from the Department,
I do not accept that the number of persons likely to be excluded under
this article would be significant.

I also accept the
submission of the Centre and the ARC that the new criteria for obtaining
an exemption from the six month waiting period imposed by the first changes
to the scheme rendered it more difficult, if not impossible, for asylum
seekers suffering severe financial hardship to access ASA assistance.
Asylum seekers who arrived in Australia indigent were unable to satisfy
the exemption criteria as their financial hardship did not result from
a "change in circumstances beyond the applicant's control" after
arriving in Australia. It is not in dispute that, as a result of the ARC's
objections to the first changes to the exemption criteria, most Divisions
of the ARC withdrew from the exemption process between December 1996 and
30 April 1998. As the Department noted in their submission of 18 February
2000, this resulted in only eleven exemptions being granted during this
period.

The primary argument
of the Centre and the ARC is that the first changes to the ASA scheme
resulted in many asylum seekers, including many children, suffering severe
financial hardship. The Centre and the ARC provided examples and case
studies of families being forced to live without basic necessities such
as food, of not being able to afford basic medical care and of facing
homelessness. Two case studies provided by the ARC raised particular concerns.
In Case Study 3 a single mother, who had an application pending before
the RRT, with five children under the age of thirteen years was forced
to return to work after her ASA assistance was removed. In order to return
to work, the woman withdrew her eldest child, aged twelve years, from
school to look after the younger children including a baby. In Case Study
4 a single mother with three children lost her ASA assistance (as she
and her children had applications pending before the RRT) and was forced
to perform sexual favours in exchange for a reduction in rent. This family
was subsequently found to be refugees.

In the Preliminary
Report, Commissioner Sidoti found that the case studies supplied by the
Centre and the ARC "provide concrete evidence of asylum seekers and
their families who experienced severe hardship as a result of being ineligible
at the RRT stage of their applications". This approach has been criticised
by the Department who contend that these case studies were "at most,
anecdotal and circumstantial evidence". [61]

I am, however, satisfied
that these case studies provide evidence that asylum seekers and their
families with applications at the primary [62] and review
stages, as well as refugees awaiting the issue of their PVs, experienced
severe hardship as a result of being ineligible for ASA assistance following
the first changes. While it may be true that this evidence can be loosely
categorised as "anecdotal" (although clearly not "circumstantial")
I accord it substantial weight as I consider it to be both reliable and
credible. The case studies were supplied by two reputable and representative
bodies and provide direct evidence of matters within their professional
knowledge and expertise. These organisations operate at the "grass
roots" level and work directly with asylum seekers. They have firsthand
knowledge of how the ASA scheme operates in practice and how the changes
have impacted on particular asylum seekers. The accounts provided by them
of the operation of this scheme are consistent and compelling.

The exclusion of
child and adult asylum seekers from State provided assistance and medical
services had the effect of nullifying and impairing the enjoyment by these
asylum seekers of rights and freedoms under international human rights
instruments on an equal footing with other members of the Australian community.
For example, those asylum seekers were not able to enjoy fundamental rights
recognised in articles 9, 11 and 12 of the ICESCR and articles 21, 23
and 24 of the Refugee Convention and Protocol on an equal footing with
other members of the Australian community. At the time of the first changes,
and continuing after 1 October 1996, members of the Australian community
were generally able to enjoy these rights as they had access to Medicare
to meet their health care needs and access to social security and other
benefits when they were unable to meet their basic survival needs including
for food and accommodation.

Commissioner Sidoti
further found that the differentiation between those asylum seekers affected
by the changes and members of the Australian community was not based on
reasonable and objective criteria. The written submissions of the Department
responded specifically to this finding and are detailed in Part 9.1 of
this Report. After considering this response and all additional material
provided by the Department, I find, consistently with Commissioner Sidoti,
that the changes to the ASA scheme were not a reasonable or proportionate
means of achieving the objectives set out at Part 4 of this Report.

Two of the Department's
primary justifications for the first changes to the ASA scheme were the
"large body of evidence of substantial abuse of Australia's refugee
determination system and exploitation of processing delays" and the
need to improve processing timeframes for refugees.[63]
I will deal with each of these in turn.

(a) Abuse of the
refugee determination system

Commissioner Sidoti
made a preliminary finding that a reasonable and objective approach would
require unambiguous empirical evidence that people were abusing the refugee
determination system in significant numbers. Despite the Department's
assertions that there was "compelling evidence", "clear
evidence" and a "body of evidence" of abuse of the system,
very limited evidence touching on this issue was actually provided by
the Department to this inquiry. The evidence which was provided is as
follows:

  • statistics for
    the period October 1995 to September 1998 indicating the total number
    of successful PV applications at the primary and review stage; and
  • the assertion
    by the Department that the first changes produced a decrease in the
    number of applications from low refugee producing countries while the
    applications from high refugee producing countries remained steady or
    increased.

The Department sought
to prove that there was widespread abuse of the review determination system
by relying upon statistical material indicating that in the period October
1995 to September 1998 the rate of affirmation of primary decisions by
the RRT steadily increased. That statistical material indicates that between
October 1995 and September 1996, 82 per cent of primary decisions were
affirmed by the RRT; between October 1996 to September 1997, 88.5 per
cent of primary decisions were affirmed by the RRT; and between October
1997 to September 1998, 90.1 per cent of decisions were affirmed. [64]

I do not, however,
accept that the low rate of success at the review stage is evidence of
such abuse. In order to meet its international obligations under the Refugee
Convention and Protocol, Australia has developed a refugee determination
system that assesses asylum seekers' claims for protection and provides
procedural safeguards in the form of review by the RRT and the Federal
Court. In my view, it is entirely legitimate for asylum seekers to pursue
their applications through that system including to the review stages
and they should not be penalised for doing so.

In fact, the statistical
material establishes that after 1 October 1996 there was a greater need
for asylum seekers suffering financial hardship to seek a review of the
primary decision than for other applicants. The statistics provided by
the RRT [65] indicated that applicants either in receipt
of ASA benefits as at 1 October 1996, or identified by the ARC as experiencing
financial hardship, had their unsuccessful primary decisions overturned
at a much higher rate than other applicants. In the twenty four months
following the changes, almost three times as many applicants in hardship
were successful at the review stage compared to other applicants. This
increased to four times as many applicants experiencing hardship in the
six months to March 1998.

(b) Reduction
in processing times

The Department asserted
that the first changes to the ASA scheme were necessary to reduce processing
delays at both the primary and the review stage. The Department asserted
that asylum seekers without genuine claims caused such delays by clogging
up the system. While this argument has some superficial appeal, it is
difficult to see how it can withstand analysis. The assumption that a
reduction in access to ASA assistance will increase the number of "genuine
refugees" making PV applications must be seen as flawed. In the absence
of evidence to suggest that applicants suffering financial hardship are
more likely to make unmeritorious claims, a common sense approach would
suggest that unmeritorious PV applications are as easily made by impecunious
as solvent asylum seekers.

Furthermore, while
the statistics indicate that there was a dramatic reduction in processing
times at the primary stage, and the Department is to be commended for
this, the first changes did not effect any change in the processing times
for applications at the review stage by persons suffering financial hardship.
For all applicants before the RRT, the average time taken to finalise
applications was 346 days in 1995, 391 days in 1996, 303 days in 1997
and 287 days for 1998. [66] The processing times for
asylum seekers suffering financial hardship was on average much higher
than for other asylum seekers. In 1995 the average time taken to finalise
an application was 401 days, in 1996 it was 387 days, in 1997 it was 394
days and in 1998 it was 316 days. [67] This is contrary
to the assertion by the Department that review applicants suffering financial
hardship were "afforded processing priority".

(c) Other considerations

My conclusion that
the first changes to the ASA scheme were not a reasonable or proportionate
means of achieving a legitimate end is further supported by the statistical
material which establishes that a number of "genuine refugees"
lost their right to ASA assistance following the first changes. In Case
Study 1 a couple with a newborn baby lost their ASA assistance on 1 October
1996 as they had applications before the RRT. Six months later this family
was recognised as refugees. In Case Study 5 a family group consisting
of a husband, wife, their young child and the husband's elderly mother
and father were not able to access any ASA assistance while their applications
were before the RRT. This family had to survive without ASA assistance
until the RRT eventually overturned the decision at the primary stage
and this family were recognised as refugees.

When regard is had
to the significant financial savings that resulted from the first changes
to the ASA scheme, it is open to conclusion that this was the true motivation
for the changes. In the year following the introduction of these changes,
the amount of money paid out through the ASA scheme fell by almost 38
per cent and the amount paid through exemptions fell by 87 per cent. That
is, between October 1995 and September 1996, $14,395,430 was paid in ASA
benefits, with $1,055,069 being exemption payments, whereas between October
1996 and September 1997, $8,975,974 was paid in ASA benefits, with $136,873
paid in exemptions. [68]

The Department has
acknowledged, as set out in Part 4 of this Report, that budgetary imperatives
were a reason for the first changes to the scheme. In my view, in a developed
country such as Australia, a denial of basic sustenance, living allowances
and health care services to those within its jurisdiction suffering financial
hardship cannot be justified by budgetary imperatives. This approach is
supported by the HRC which, in cases involving allegations of discrimination
with regard to social security payments, has been very reluctant to accept
arguments that budgetary constraints provide a reasonable basis for differentiation
in treatment. [69]

For all of these
reasons, I find that the first changes to the ASA scheme breached article
26 of the ICCPR.

10.4.1.2 The second
changes to the ASA scheme

The second changes
to the ASA scheme permitted those adult asylum seekers suffering financial
hardship, who fell within an exemption category (as set out in Part 2.3.2
of this Report), to access ASA assistance when their PV applications were
less than six months old or at the review stage. The exempted categories
included unaccompanied elderly persons over 65 years of age, persons unable
to work because of physical or intellectual disability and full-time carers.

The second changes,
however, did not make ASA assistance universally available to all adult
asylum seekers suffering financial hardship where that financial hardship
did not result from a change in circumstances since arriving in Australia.
The ASA exemption guidelines still preclude single persons, couples without
children and the majority of pregnant women from ASA assistance when their
PV applications are less than six months old or at the review stage and
prior to the issuing of their PV. The Centre, in its submission of 11
September 1997, noted that it:

continues to see
refugee applicants who do not have children with them but who are nevertheless
in extreme financial hardship and whose mental and physical health visibly
deteriorates as the stresses and strains of trying to survive take their
toll. The problem is especially serious for victims of past trauma and
torture ….

In its submission
of 25 May 2000, the Centre asserts that despite the second changes these
"overall problems with the ASA [scheme] remain".

I am of the view
that until ASA assistance is available to all adult asylum seekers suffering
financial hardship, there will be a continuing breach of article 26 of
the ICCPR. This is because adult asylum seekers who are not able to meet
the ASA criteria for exemptions at the primary stage and at the review
stage are excluded from State provided financial assistance and medical
services. This exclusion has the effect of nullifying and impairing the
enjoyment by this category of asylum seeker of rights and freedoms under
international human rights instruments on an equal footing with other
members of the Australian community. In particular, those asylum seekers
are not able to enjoy the rights recognised in articles 9, 11 and 12 of
the ICESCR and articles 21, 23 and 24 of the Refugee Convention. From
the time of the second changes until the present, members of the Australian
community are generally able to enjoy these rights as they have access
to social security and other benefits to meet their basic survival needs
including for food and accommodation and access to Medicare to meet their
health care needs.

A good example of
this denial of human rights is provided by Case Study 2 and Case Study
7. [70] In both these cases the asylum seekers were
single and therefore, even after the second changes, had no access to
exemptions at the primary stage or to ASA assistance while their cases
were before the RRT. In Case Study 2 the asylum seeker was a resident
in emergency accommodation for homeless men. He had spent most of the
money he had brought with him to Australia staying in another homeless
shelter. This man was receiving counselling from the Service for the Treatment
and Rehabilitation of Torture and Trauma Survivors. As the Centre stated,
"this inappropriate form of accommodation is exacerbating stress
related problems that he has been experiencing". In Case Study 7
the asylum seeker was forced to sleep on the floor at the house of an
acquaintance who required him to leave that house each morning and return
at night. He was not provided with any food by this acquaintance and had
to meet all of his living expenses out of the $30.00 per week provided
by the ARC.

11. Recommendations

Section 29(2) of
the HREOC Act requires that, where I conclude that an act or practice
is inconsistent with or contrary to a human right, I should make findings
to that effect and such recommendations including, where appropriate,
recommendations for compensation as may be desirable to compensate and
make good, to the extent possible, the harm or damage caused.

As a consequence
of the findings in this Report, I make the following recommendations.
I recommend that:

(a) in accordance
with Australia's obligation under article 3 of the CROC, the best interests
of the child be a primary consideration in all further changes made by
the Commonwealth to the ASA scheme; and

(b) access to the
ASA scheme be immediately reinstituted for all persons suffering financial
hardship who have applications at the primary or
review stage.

12. The Department's reply
to the findings and recommendations

By letter dated 5
February 2002, I sent my Notice of findings and recommendations pursuant
to section 29(2) of the HREOC Act to the Department. I sought advice from
the Department as to any action that has been taken or is being taken
by it as a result of those findings and recommendations. I requested that
this advice be provided by 5 March 2002. On 25 February 2002, the Department
requested an extension of time in which to provide this advice. I granted
an extension to 15 April 2002. On 11 April 2002, the Department sought
a further three month extension until 15 July 2002. I acceded to an extension
only for a further two weeks as I was of the view that three months was
sufficient time for the Department to respond to my request for advice.

To date, no response
to my request for advice has been received by the Department. I am therefore
not aware of any action taken or proposed to be taken as a result of the
findings and recommendations in my Notice.


1. The
Commission's functions under the HREOC Act are set out in Appendix A.
2. On 24 July 2000 Commissioner Sidoti delegated his powers
and duties in relation to this matter to me pursuant to section 19(2)
of the HREOC Act. This delegation came into operation on 13 August 2000.
3. Letter from Frank Elvey of the Centre to the Commission
dated
11 September 1997, page 3.
4. Letter from WJ Farmer, Secretary of the Department,
to the Commission dated
18 February 2000, page 2.
5. A non-citizen in Australia lawfully on a valid visa
to whom Australia has protection obligations under the Refugee Convention
and Protocol may apply for a Protection Visa: section 36 of the Migration
Act. Such a visa enables persons recognised as refugees to reside permanently
in Australia.
6. Sections 411 and 412 of the Migration Act.
7. Sections 475 and 476 of the Migration Act.
8. The Minister will do so where it is in the public interest:
section 417 of
the Migration Act.
9. Letter from Helen Williams of the Department to the
Commission dated
6 August 1997, page 2.
10. The main exception is where a PV applicant has authority
to work in Australia. Such permission enables asylum seekers to access
Medicare benefits: section 10
of the Health Insurance Act 1973 (Cth).
11. About the Asylum Seeker Assistance (ASA) Scheme,
Attachment A to the
letter of John Bloomfield from the Department to the Commission dated

17 November 1998.
12. Asylum Seeker Assistance Scheme (ASAS) Exemption
Guidelines, Attachment B to the letter of John Bloomfield from the Department
to the Commission dated
17 November 1998.
13. Department of Immigration and Multicultural Affairs,
Asylum Seeker Assistance (ASA) Handbook 1998, Topic 8: Exemption - Application
for Exemption to the ASA Eligibility Criteria (Schedule 1 of the Agreement),
pages 21 and 22.
14. Department of Immigration and Multicultural Affairs,
Asylum Seeker Assistance (ASA) Handbook 1999, Topic 8: Exemption - Application
for Exemption to the ASA Eligibility Criteria (Schedule 1 of the Agreement),
pages 22 and 23.
15. Department of Immigration and Multicultural Affairs,
Asylum Seeker Assistance (ASA) Handbook 1999, page 6.
16. Department of Immigration and Multicultural Affairs,
Asylum Seeker Assistance (ASA) Handbook 2000, page 6. The Asylum Seeker
Assistance (ASA) Handbook for 2001 has not yet been finalised.
17. MPS 53/96.
18. Department of Immigration and Multicultural Affairs,
Fact Sheet -
Budget '96, 3. Processing asylum claims, 20 August 1996.
19. Above n 17.
20. Above n 18.
21. Above n 17.
22. Above n 17.
23. Above n 18.
24. See pages 16 - 23.
25. Letter from WJ Farmer of the Department to the Commission
dated
18 February 2000, paragraph 5.
26. Ibid, paragraph 25.
27. Above n 25, paragraphs 3 and 4.
28. Above n 25, page 2.
29. Above n 25, paragraphs 10 to 12.
30. Above n 25, paragraph 32.
31. Above n 25, paragraphs 58.
32. Above n 25, paragraph 47.
33. Above n 25, paragraph 48.
34. Above n 25, paragraphs 63 to 65.
35. Secretary,Department of Defence v HREOC and Ors (1997)
78 FCR 208.
36. "Human rights" are defined in section 3
as "the rights and freedoms recognised in the [ICCPR], declared by
the Declarations or recognised and declared by any relevant international
instrument". On 22 December 1992, the Attorney-General declared that
the CROC is a "relevant international instrument": section 47
of the HREOC Act.
37. Article 1 of the CROC.
38. United Nations Committee on Economic, Social and
Cultural Rights, "The nature of State Parties' obligations",
General Comment 3, HRI/GEN/1/Rev.2.
39. Ibid, pages 57- 58.
40. Article 3 makes it clear that the best interests
of the child need only be a rather than the primary consideration: G Van
Bueren, The International Law on the Rights of the Child, 1995, Martinus
Nijhoff Publishers, London, at page 46; Minister of State of Immigration
and Ethnic Affairs v Ah Hin Teoh, (1995) 183 CLR 273 per Mason CJ and
Deane J at page 289.
41. (1995) 183 CLR 273.
42. In particular, see the decisions of Mason CJ and
Deane J at page 289. But note the dissent of McHugh J at page 319.
43. See the letter from John Bloomfield of the Department
to the Commission dated 17 November 1998 and also above n 25.
44. Persons without permission to work have no access
to Medicare: see above n 10.
45. R Hodgkin and P Newell, Implementation Handbook for
the Convention on the Rights of the Child, 1998, Atar SA, Geneva, pages
327 to 333.
46. This remains the current position, although there
has been a slight rewording of this exemption category. Currently a pregnant
asylum seeker or refugee "whose medical or social circumstances are
such that her health or the baby's heath are at serious risk if she does
not receive assistance" is eligible for ASA assistance at the primary
stage, where her application is not six months old, and at the review
stage.
47. Persons without permission to work have no access
to Medicare: see above n 10.
48. Article 2(1) of the ICCPR.
49. United Nations Human Rights Committee, General Comment
No 18 (1989), HRI/GEN/1/Rev.4, paragraph 1.
50. M Nowak, UN Covenant on Civil and Political Rights
- CCPR Commentary, 1993, NP Engel, Kehl, pages 466 to 467.
51. Human Rights Committee, above n 49, paragraph 12.
52. Human Rights Committee above n 49, paragraph 7.
53. Nowak above n 50, pages 465 to 469.
54. Communication No. 182/1984 (adopted 9 April 1987).
55. Communication No. 172/1984 (adopted 9 April 1987).
56. Ibid at paragraph 12.4; Zwaan-de Vries above n 54
at paragraph 12.4.
57. Human Rights Committee above n 49, paragraph 13.
58. The Human Rights Committee has found that separate
individuals cannot fall within the "other status" category;
one must belong to a group of people similarly affected (Johannes Vos
v The Netherlands Communication No. 218/86). In addition, the groups of
persons must be "distinguishable" (Van Oord v The Netherlands
Communication No. 658/95). The Human Rights Committee has found nationality
(Gueye v France Communication No. 196/85 and Adam v The Czech Republic
Communication No. 586/94), the distinction between "foster"
and "natural" children (Oulajin & Kaiss v The Netherlands
Communication No. 426/90) as well as the difference between students at
public and private schools (Blom v Sweden Communication No. 191/85) to
constitute "other statuses" for the purposes of admissibility
of a complaint of a violation of the non-discrimination provisions of
the ICCPR.
59. Case Study 1 and Case Study 5 provide examples of
this.
60. Article 1F of the Refugee Convention provides that:
61. The provisions of this Convention shall not apply
to any person with respect to whom there are serious reasons for considering
that:
62. He has committed a crime against peace, a war crime,
or a crime against humanity, as defined in the international instruments
drawn up to make provision in respect of such crimes;
63. He has committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee;
64. He has been guilty of acts contrary to the purposes
and principles of the
United Nations.
65. See above n 25, paragraph 18.
66. For example, see Case Study 7, 8 and 12.
67. See Part 4 and 9.1 of this Report.
68. See Table 3 in Appendix F to this Report.
69. See Table 4 in Appendix F to this Report.
70. See Table 3 in Appendix F to this Report.

Last
updated 27 June 2002.