Since December 2016, the Department of Immigration has sent out more than a thousand so-called ‘non-engagement’ letters to asylum seekers in the community, threatening to cancel bridging visas, cut off critical support payments, and withdraw the right to lodge asylum claims. Vinnies are deeply concerned by these letters, which are heightening fear and confusion among people seeking asylum, placing added pressure on legal assistance and asylum seeker support services, and further eroding the integrity of the refugee determination process.
What are these ‘non-engagement’ letters?
The Department of Immigration has sent out letters to over a thousand of the approximately 12,000 asylum seekers in the community who are yet to lodge their application for refugee status.
According to the Department, asylum seekers who receive the letters are considered ‘not to have engaged’ during the so-called ‘fast-track’ process.
The letters instruct the recipient to contact the Department and lodge their application for refugee protection within 60 days. If a person who receives a letter does not ‘engage’ within 60 days:
- any income payments they are receiving from the government will cease;
- they will be given 14 days before they are referred to the Department for ‘status resolution’, where they risk permanently losing the right to apply for asylum; and
- their right to work and access Medicare may be withdrawn.
In addition, the letters warn that an asylum seeker’s bridging visa may not renewed if they fail to lodge their application, potentially leading to detention and deportation.
If a person who receives a letter subsequently ‘engages’, they can request a 30-day extension for lodging their application. There is, however, no scope for further extending the deadline.
Who is receiving these letters?
By late March 2017, at least 1135 letters had been sent to asylum seekers in the community. This number will increase as the year progresses.
Those receiving letters are among the so-called ‘legacy caseload’ who arrived in Australia by boat between August 2012 and January 2014. This group of asylum seekers has been kept in limbo for years. They cannot lodge a claim for permanent protection, and have been subjected to ongoing uncertainty, enforced poverty, constantly-shifting government policy and convoluted bureaucratic processes. For many, the toll on their health and well-being has been devastating.
Initially, these asylum seekers had their processing suspended under the ‘no advantage rule'. It was not until July 2015 that the Government began progressively inviting them to lodge their application for refugee protection. By the time the final batch of invitations was sent, some had waited over four years for the opportunity to apply.
Many have sought legal assistance but have been unable to lodge their claim due to the length and complexity of the application form, the massive backlog in the system, timeframes that are unrealistic, and constraints on the capacity of underfunded and overstretched legal services. Due to unprecedented demand, some legal assistance services have waiting lists of over 12 months.
So far, the letters have been targeted at:
- those who were invited to apply in 2015 and the first quarter of 2016;
- single adult males who are Tamil, Afghani, Pakistani or Iranian; and,
- those receiving support payments (up to 89% of Centrelink’s Special Benefit Payment, which equates to $34 per day).
The Department has indicated that they will be sending letters to other groups over the coming months, including asylum seeker families.
Why is the Immigration Department sending these letters?
The Government has indicated its intention to process all outstanding claims for asylum by mid-2018. To achieve this, it has identified the need to increase ‘engagement’ among legacy caseload asylum seekers and ensure they promptly finalise and submit any outstanding applications. According to the Department, the intention of the letters is to encourage people to apply.
What is the ‘fast-track’ process and why has it taken so long for asylum claims to be lodged and processed?
The letters are being sent to people who have been waiting to lodge their asylum claims under the so-called ‘fast-track’ assessment process – a process that has turned out to be neither fast nor fair.
The fast-track assessment process, which commenced in mid-2015, removes a number of basic procedural safeguards and appeal rights. Essentially, if an asylum seeker doesn’t get everything right in their application then they risk being rejected, with almost no way to correct a mistake, provide additional information and prove they are genuinely in need of protection. Under the fast-track process, the avenues for appeal are much more limited, lack independence, and do not enable new information to be considered. According to the Department: ‘if you do not give us all of your protection claims and we refuse your application, you might not have another chance to provide these claims’.
The process for determining whether a person is a refugee is complex and difficult, and an error can have grave consequences. Applicants must fill-out complex forms that are more than 60 pages in length, together with a detailed statement of claim – all in English. The process is complicated enough for a native English speaker. For someone who may have experienced trauma, fled persecution, and has limited English, the process can be overwhelming.
It is crucial asylum seekers have access to legal assistance to navigate the lengthy and complex application process. Despite this, the Government no longer provides funding for refugee legal assistance and interpreters. A small number who are categorised as extremely vulnerable (such as unaccompanied minors) can receive government-funded assistance with their asylum applications. But for most, the only option is to seek pro-bono legal support.
Refugee legal centres have scrambled to fill the gap but are pushed to capacity, with waiting lists that stretch into the thousands. With limited resources, these centres have been unable to provide assistance to all those who need it within the arbitrary timeframes set by the Government.
Why are Vinnies concerned?
We are gravely concerned about these ‘non-engagement’ letters that impose arbitrary deadlines and harsh sanctions. These letters are causing immense distress to people who are already in an extremely vulnerable position. Threatening people with destitution, and with the prospect of being barred from protection, creates very real risks to people who have already suffered enough.
Those affected by this process have waited years for the opportunity to apply for refugee protection. Prolonged uncertainty, enforced poverty, and the ever-present threat of deportation has brought many to the edge of despair. Professor Nicholas Proctor recently described the increase in suicides and suicide attempts among this cohort, and characterised their predicament as one of ‘lethal hopelessness’, with many ‘being at advanced stages of feeling mentally trapped, figuratively boxed in, especially hopeless and helpless’. For these asylum seekers, there is a real risk that these threatening letters may be a tipping point, pushing them over the edge.
Cutting off benefits is cruel, inhumane and will only lead to further stress, mental deterioration and potentially suicide. Current benefits are not enough to live on, and to withdraw these meagre payments would place asylum seekers in an impossible situation. Many of those supported by our services already struggle to cope on a day-to-day basis, with limited income and few employment prospects given they only possess a short-term bridging visa.
To support asylum seekers through the complex and convoluted application process, it is crucial the Government reinstate funding for legal assistance and interpreting services. In our experience, asylum seekers are keen to have their application for protection processed so that they can start the next phase of their life in Australia. Many who are yet to lodge their application have in fact ‘engaged’ with legal centres. However, as a result of Government policy, these legal centre are severely overstretched, with waiting lists in the thousands.
The Government’s punitive approach is further undermining the integrity of the refugee determination process, increasing the risk that claims will not be properly assessed and that people will be returned to persecution and harm. Without legal advice, asylum seekers may not have the opportunity to prepare an application that properly details their claims for protection. The use of sanctions and arbitrary deadlines heightens the likelihood that applications will be poorly prepared and omit relevant information, thereby increasing the risk of a negative decision for those with legitimate claims for asylum.
Given that any appeal of a decision by an officer of the Department is limited to written material only, the chances of success on appeal are significantly reduced if the original application is not carefully prepared and includes all relevant evidence and documentation.
We call on the Government to immediately restore funding to legal assistance services, and to ensure those yet to make an application are given appropriate time and support to do so. They should not be threatened with re-detention and loss of benefits during this time.
What should you do if you or someone you know gets a letter?
If you or somebody you know gets one of these letters, they should immediately:
- contact the agency contracted to provide their income payments, and
- contact the legal centre or migration agent that is helping them, if any.
They should do this before they talk to the Department so that they can talk to someone about what they should do. People should not ignore the letter and hope it will go away. The earlier they talk to a lawyer, the better.
If the person does not already have someone helping them with their claim, they should contact their nearest legal centre immediately to see if they can help. Legal centres are doing everything they can to help these people, but they are under-staffed. If they have a letter, they should tell the person about the letter so that the legal centre knows.
If the person does have their income payments stopped, they should talk to the agency they provides their income support payments (their SRSS provider) as soon as they can. Once they apply, they can have their support payments reinstated.