Legal and Constitutional Affairs Legislation Committee
Estimates Hearings May 28th 2013
Department of Immigration and Citizenship
- Mr Martin Bowles PSM, Secretary
- Mr Matt Cahill, Acting Deputy Secretary, Immigration Status Resolution Group
- Ms Alison Larkins, First Assistant Secretary, Refugee, Humanitarian and International Policy Division
Senator RHIANNON: Does the immigration department notify involuntary returnees of the possibility of making a complaint to the Australian High Commission of mistreatment by Sri Lankan officials on return to Sri Lanka?
Mr Bowles: Sorry, Senator, could you repeat that?
Senator RHIANNON: It is about people being returned to Sri Lanka. Does the department notify involuntary returnees of the possibility of making a complaint to the Australian High Commission of mistreatment—obviously if it occurs—by Sri Lankan officials when they return to Sri Lanka?
Mr Bowles: I am really not sure what that means. Maybe I will just explain what happens. If people come here and we screen them, there are a whole range of things that we go through. It is quite a rigorous process that we go through when we talk to these people. If they make no claims against Australia, they are—
Senator RHIANNON: No, if you choose to return these people to Sri Lanka, what information do you give them when they go there with regard to possible mistreatment that they might suffer?
Mr Bowles: Again, if these people have made no claims and therefore have not engaged Australia's obligations, we screen them out and then we send them back to Sri Lanka. If there are no claims around mistreatment, and they were in fact here for other purposes—a large number of these people obviously are—I am not sure why we would even be talking about mistreatment.
Senator RHIANNON: But are you not making an assumption there that people that you return—if they have not made a complaint about mistreatment—are not going to be mistreated?
Mr Bowles: We rely on country information around what is actually happening. If someone does engage our obligations, we take that very seriously. I am really at a loss to understand the question.
Senator RHIANNON: So does that mean that there are no procedures in place for returnees from Australia to make a complaint?
Mr Bowles: Back in Sri Lanka?
Senator RHIANNON: Sri Lanka, yes, this is all to do with Sri Lanka.
Mr Bowles: Yes.
Senator RHIANNON: So there are no procedures?
Mr Bowles: There is nothing to stop them making a complaint if they wish, but I make the point that these people have gone through a process where they have not raised those claims. Therefore, they go back; because their country information says it is safe for them to go back.
Senator RHIANNON: So, with regard to—sticking with the procedures—so you are saying they can make a complaint. So what is the procedure for them to make a complaint?
Mr Bowles: I will ask Ms Larkins to answer that.
Ms Larkins: Senator, we sometimes do have cases. I am aware of three cases; one from 2009 and two from 2002, where we were made aware of allegations of mistreatment on return. So people do raise issues with us, and when those issues are raised, the high commissioner in Sri Lanka investigates those claims. We have not found any of the three claims that have been made to be substantiated.
Senator RHIANNON: And how is the investigation undertaken?
Ms Larkins: That is probably more a question for DFAT than for us.
Mr Bowles: They are undertaken by the local high commissioner in Sri Lanka. To highlight the point Ms Larkin made, the complaints that she was referring to were 2009—
Ms Larkins: 2012, sorry.
Senator RHIANNON: Thank you.
Ms Larkins: In some cases, the post does talk to the individual. So, in one of those cases, the post talked to the individual, who said they has suffered no harm upon return.
Senator RHIANNON: Did they talk to the individuals in all cases?
Ms Larkins: I think that is one of the options. I am not sure in all cases.
Senator RHIANNON: Could you take that on notice, to determine if the individuals were spoken to?
Ms Larkins: Yes.
Senator RHIANNON: Thank you. Has the department implemented a more proactive monitoring of returnees, given that there are more reports about torture of people on return?
Mr Bowles: Senator, we have no reports of torture of the people we have returned. There is broad speculation in the media from time to time, but to my knowledge nobody has raised those issues.
Ms Larkins: And basically, it is not general international practice for countries who return people to their country of origin to monitor individuals, and there are international law issues there. Respect for state sovereignty is a basic principle, and we are a party to the Vienna convention, and that imposes a duty on our consular officers not to interfere in the internal affairs of a state, and monitoring could be seen as infringing—
Senator RHIANNON: So is what we conclude from that that you would monitor and investigate if a complaint is made, but if no complaint is made to you, to the department, or to the high commission, nothing is proceeded with?
Ms Larkins: But we take any reporting of harm seriously, and we do take action to follow up.
Senator RHIANNON: But Mr Bowles just said that you are not responding to general reports that are not specific to you, so I am just trying to clarify—
Mr Bowles: That is correct.
Senator RHIANNON: What is a process that would kick-start you doing something?
Mr Bowles: If we had someone who complained, we would obviously investigate.
Senator RHIANNON: Complained to you? Complained to who?
Dr Southern: Or complained to a third party who came to us.
Mr Bowles: Yes. If we found out, we would do it, no matter what way—whether it was the individual or some other third party.
Senator RHIANNON: So if a third party—like a report in the media, or if a human rights group does a report?
Mr Bowles: No, it depends on whether it is a specific individual or there are these broad sweeping statements.
Senator RHIANNON: I think we are getting closer. You are saying, if an individual specifies the harassment, the violence that they have experienced, you would investigate it, even if it does not come direct to you, if it is about an individual making that statement.
Mr Bowles: Yes. I think we have just said we have done that on three occasions.
Senator RHIANNON: On those three occasions were the complaints made to the high commissioner? Were they complaints to a human rights group? How do you identify the complaints?
Ms Larkins: I do not have that information.
Senator RHIANNON: Could you take that on notice?
Ms Larkins: Yes.
Senator RHIANNON: Are any officials from the department stationed in Sri Lanka in order to work with Sri Lankan authorities to gather information about people intercepted by Sri Lankan authorities whilst attempting to leave Sri Lanka?
Mr Bowles: I am not going to go into what might happen in an operational sense, because it would involve a range of agencies that reside in a post. I can tell you that I have officers in Sri Lanka who do engage with counterparts on a range of different issues. There are other agencies, and you would need to question them to find out if they have similar views or activities.
Senator RHIANNON: How many officers do you have in Sri Lanka?
Mr Bowles: I could take that on notice.
Senator RHIANNON: Could you also take on notice where they are stationed. Is it the high commissioner in Colombo or other cities?
Mr Bowles: Yes, they are in the high commission in Colombo.
Senator RHIANNON: Have any officials from the department ever been present or involved in questioning any of the Sri Lankan people who are intercepted by Sri Lankan authorities?
Mr Bowles: That is a question of a very operational in nature. We do not get involved in that. Your best place to ask that would be foreign affairs as a first point.
Senator RHIANNON: So do I conclude from your answer that your people stationed in the high commission are not involved in questioning?
Mr Bowles: What happens in an operational sense in a post in another country would be best asked to DFAT.
Senator RHIANNON: Does that mean your department people come under DFAT when they are operating out of the high commission?
Mr Bowles: They work out of the high commission which is the responsibility of the head of mission. They have an accountability back to me as the head of immigration but they are working out of an Australian high commission in the case of Colombo in Sri Lanka.
Senator RHIANNON: If they are accountable back to you, are you able to tell us if they are involved in questioning?
Mr Bowles: Again there is sensitive information about what might happen on a post and I cannot go there. We do not generally question people, I will say that, but we are engaged with our counterparts in Sri Lanka on a range of issues all the time. That is why we have the post over there; that is why I have people over there.
Senator RHIANNON: Could you summarise the purpose of these officials from your department in Sri Lanka?
Mr Bowles: They do everything from visa processing to assessing different immigration implications for a particular county. They assist with the removals from Australia from my side. There are a range of function that happen in the post.
Senator RHIANNON: Have the department, your people, played a role in the interviews of interceptees on at the forth floor facilities of the criminal investigation department or the terrorist investigation division in Colombo?
Mr Bowles: I have no knowledge of anything like that, but again you are going to the sensitive nature of activities that happen at a post and I am not qualified to speak on those issues.
Senator RHIANNON: Are there procedures in place that your people operate under which note what information should or should not be shared with the Sri Lankan authorities? Do you have a procedure under which they operate?
Mr Bowles: We have a range of procedures in place around how we deal with foreign countries. Again, it is not my purview to talk about those issues.
Senator RHIANNON: On irregular maritime arrivals from Sri Lanka, are there guidelines or procedures or processes in place to ensure that irregular maritime arrivals who are seeking asylum in Australia are not being refouled?
Mr Bowles: Yes.
Senator RHIANNON: Could you run through what these steps are?
Ms Larkins: Building on what the secretary said earlier, we have a screening process when people enter Australia and are brought to Christmas Island or the mainland. We quickly assess the nature of the claims presented to see whether they do engage our non-refoulement obligations so that we can return those who do not engage those obligations quickly. That process consists of an interview of the person, at which they are asked their reason for coming to Australia. That happens with an interpreter. They have a chance to explain why they have come to Australia and we then assess whether they are seeking protection in Australia and their reason for being here.
Senator RHIANNON: Are there operational procedures in place to ensure that family members who arrive separately in Australia or in Australia's excise zones by irregular maritime means are reunited? If there are procedures, what are they?
Ms Larkins: To be clear I would probably have to take that on notice. The general principle is that yes, we do take family composition into consideration in our decision making. But it would be better if I gave you a fuller answer.
Senator RHIANNON: If you could take it on notice, that would be appreciated. Is there a time period within which these procedures must take place, considering that we are talking about family?
Ms Larkins: I will include that in my answer.
Senator RHIANNON: Are you aware that there are 14 Tamil men on Christmas Island who have asked on repeated occasions to be reunited with their wives and children who are also on Christmas Island?
Mr Bowles: I am not personally aware of it.
Senator RHIANNON: Is there anyone else he who would be aware of it? I am just wondering whether they have an the opportunity to speak with their family members.
Mr Bowles: That is the normal policy arrangement. We try and make it as comfortable as possible. We can take it on notice to find out anything we know about that.
Mr Cahill: I am unaware of any specific instances. They are able to do 'I'm alive calls' and contact family back home. If they have got family in the detention facilities, we look to try and join them with their family, subject to security matters.
Senator RHIANNON: You can take it on notice to find out whether any of the Tamils who are family units have been able to talk to each other on Christmas Island and, if there has been a delay in that occurring, why.
Mr Cahill: I will take it on notice. If they have got family on the island, they would be allowed to talk to them.
Senator RHIANNON: As I have received information to the contrary, it would be appreciated if you could take it on notice.
Mr Cahill: I will.
Senator RHIANNON: Are there operational procedures in place to assist IMAs to access legal representation?
Mr Bowles: We have procedures around legal representation.
Senator RHIANNON: What are these procedures?
Mr Cahill: I will have to take that specific question on notice.
Mr Bowles: We will have someone come and talk to you about that, Senator.
Senator RHIANNON: Have any IMAs who have been screened out, and returned to Sri Lanka involuntarily, been denied legal representation when it was requested?
Ms Larkins: No.
Senator RHIANNON: That is a definite no?
Mr Bowles: Yes.
Ms Larkins: Yes.
Senator RHIANNON: There have been a number of IMAs who have been identified as 'no claims'. What constitutes an IMA who has been identified as 'no claim'?
Ms Larkins: When we ask the question, 'Why have you come to Australia?' they may say, 'We've come to Australia because we are looking for work.' That would be the simplest example of someone who was not raising a protection related claim.
Senator RHIANNON: What documentation is being kept on those that have been screened out?
Ms Larkins: All interviews are recorded and all of the records of decision making in terms of decisions to screen people in and out are recorded and kept on file. It is a fully documented decision-making process.
Senator RHIANNON: Within that process who actually makes a recommendation for an IMA to be screened out?
Ms Larkins: We have trained officers who are making that assessment. If their decision is to screen someone out, that is then subject to review by a senior officer who either confirms or overturns the initial decision.
Senator RHIANNON: Could you provide us, either now or on notice, the classifications of the officers who make that decision and the different times?
Ms Larkins: Yes. I should just point out that they are trained in our protection process, so they are people who have considerable experience in assessing people's claims for protection.
Senator RHIANNON: Is there any review mechanism for this recommendation that they make?
Ms Larkins: There is internal review of the department's decision making, yes.
Senator RHIANNON: But can this decision be overturned by anyone?
Mr Bowles: A senior officer in the department could come up with a different outcome.
Senator RHIANNON: At what level would that senior officer be?
Mr Bowles: That person is generally at SES level.
Senator RHIANNON: Has the screening out interview been audio recorded?
Ms Larkins: Yes, each of them is recorded.
Senator RHIANNON: During the screening process is the credibility of claims assessed?
Ms Larkins: No. It is not a refugee status determination process. We are testing whether the client is putting forward claims that engage our protection obligations.
Senator RHIANNON: Are you aware that there are allegations that the department does not afford adequate time or opportunity for the IMA to express their proper claims and that, according to complaints by detainees on Christmas Island, they are being denied the opportunity to elaborate on the claims and also are not being given any further interviews?
Mr Bowles: Ms Larkins has just gone through the process that we take people through. We afford people the opportunity to have a conversation with our people. If we are in any way of the view that these people would engage our obligations, they would be screened in and they would go into our normal process. Screening in does not think we mean they are a refugee, but it does mean we want to take a harder look at those particular claims. There is always conjecture about who says what to whom in these sorts of issues. But we have gone through the process and talked about how we actually deal with individuals in these cases.
Senator RHIANNON: The question was: are you aware that there are allegations that the department does not afford adequate time or the opportunity for the IMA to express their proper claims?
Mr Bowles: I am saying, of the individuals we are dealing with, there is no evidence to suggest that.