this changes everything

The entry interview, the identity interview, then maybe enhanced screening, and security or age-related interviews. After all those, people seeking asylum in Australia’s ‘legacy caseload’ await the minister’s permission to apply for protection – and finally, that claim is assessed at a face-to-face interview with life-or-death consequences.

Episode 4 / Kumar’s story

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Words by Lauren Martin · Art by TabzA

‘THERE ARE TWO BOLTED-DOWN CHAIRS, and that's where the applicant and their lawyer will sit,’ explains the man who sat on the other side of the table, in what he describes as a quite comfortable, adjustable swivel chair. ‘The walls are dark grey and there is a lot of security paraphernalia around’ – alarms, doors that go into lock-down, that kind of thing. ‘I don’t think I’ve ever heard of a situation where that’s actually been required.’

Shaun Hanns worked in such rooms for more than five years. Until late 2018, as a decision-maker in what’s now the Department of Home Affairs, he determined the fate of hundreds of people seeking Australia’s protection under the Refugee Convention. ‘The rooms got more and more unpleasant over time, actually,’ he says.

‘I had a client once say it's like walking into CSI Miami,’ recalls a lawyer who sat opposite with people seeking asylum. ‘The tables are stock white and it's got that blue-white lighting. It's just a government building. But for [someone applying for asylum], it's not friendly in any sense – especially the rooms with chairs bolted to the ground.’

Sometimes clients would ask Sarah Dale, now the Centre Director and Principal Solicitor at the Refugee Advice and Casework Service (RACS), why the chair was bolted down. Safety, she’d say; because someone might hurt another person with that chair.

‘And of course they realise in that moment that it's not to protect them from the Department – it's to protect the Department from them. Which is really demoralising… when a client has been of no threat or consequence to anyone. Little things like that make a really big difference.’ 

Still, many people in the ‘legacy caseload’ waited years – some are still waiting – for the chance to walk into this power-imbalanced scene and to sit in the bolted-down chair. It is a crucial moment to put their case before a decision-maker. In official terms, it’s their protection interview. From this, a decision will be made about whether or not they are a refugee.

Generally the room is booked for two or three hours, but many interviews are shorter and some are much longer.

‘My interview took place for nine hours,’ explains Kumar, a man whose boat arrived from Sri Lanka in October 2012, and who was finally interviewed in Darwin more than three years later. ‘There were no meal breaks, but I had one glass of water.’

Leaving home

A young professional on the rise, Kumar was busy with three young daughters and a wife at home in Kandy, a scenic lakeside gateway to Sri Lanka’s Central Highlands.

TripAdvisor tells why people want to go there: ‘UNESCO-listed Kandy is home to sacred landmarks, landscaped gardens, and cultural museums… tropical plantations roll across the mountain slopes.’

Kumar can’t publicly tell why he left there, only: ‘The death threats that emanated from [my professional circumstances] resulted in me making a decision to come here.’

Not just death threats. There were also two kidnapping attempts, and other vague, but menacing, threats. Sri Lanka’s decades-long civil war had ended in 2009, but in 2013, just as Kumar was fending off threats, the United Nations High Commissioner for Human Rights, Navi Pillay, called it ‘a country where critical voices are quite often attacked or even permanently silenced’ and warned that ‘surveillance and harassment appears to be getting worse’.

Kumar asked too many questions. Knew too much. Many of his details remain too dangerous to reveal publicly. ‘Kumar’ is not his real name. 

He left with nothing and without telling his family, who knew enough to be fearful of what might have happened to him when he did not come home. ‘They did not know that I had departed on this boat until I had arrived here.’

The human meaning of ‘enhanced screening’

Kumar arrived in Australia as it was desperately to deter people seeking asylum by boat, and Sri Lankans had become special targets of this effort. Despite the significant risks acknowledged by the UN and documented by many human rights groups, Australia’s foreign affairs officials considered post-war Sri Lanka to be safe, and were concerned that Sri Lankans were boarding boats seeking jobs rather than protection. So in 2012 a new, misleadingly named immigration procedure called ‘enhanced screening’ was put in place for Sri Lankans. ‘Enhanced’ did not mean better or more rigorous; rather, it meant expedited and cursory.

Between October 2012 and November 2013, more than 1,000 Sri Lankan asylum seekers who had an ‘enhanced screening’ interview were sent home. These are unlike a standard ‘entry interview’, where a person who raises a fear of being persecuted or otherwise harmed cannot be removed until a more complete refugee status determination (RSD) process takes place, usually involving experienced government decision-makers who thoroughly review the protection claim and any evidence supporting it.

The ‘enhanced screening process’
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Since 2012, asylum seekers from Sri Lanka have been subjected to an additional interview process called the ‘enhanced screening process’. In 2015, enhanced screening was extended to asylum seekers from Vietnam.

Enhanced screening operates as a precursor step that takes place before a person can submit an application for protection in Australia. Sometimes it is conducted while asylum seekers are in immigration detention, and sometimes it happens on boats ‘on water’, before a transfer to immigration detention has taken place.

At the enhanced screening interview, the interviewer must determine whether the interviewee is raising a protection claim that may have merit. If the interviewers find that they are doing so, the asylum seeker is ‘screened in’. This does not mean that they will be granted protection, merely that they will have access to the protection application process, like other asylum seekers.

If the asylum seeker does not mention that they are seeking protection, or if the interviewers do not believe them, they will be ‘screened out’. This means being removed from Australia, often at very short notice.

‘[Enhanced screening] is usually done within the first week or so of a person arriving, that’s a very volatile time for someone who’s just stepped off a boat,’ said former Immigration Department official Greg Lake, who expressed concern that ‘enhanced screening’ may have resulted in refugees being wrongly ‘screened out’. He added: ‘I think [this] is very dangerous, especially given the vulnerability.’

A person subjected to the controversial ‘enhanced screening’ process is not informed that they have a right to seek legal assistance. Instead, they are told: ‍

“Because you arrived in Australia without a visa, you are an unlawful non citizen and do not have an automatic right to remain in Australia. Therefore a finding is to be made as to whether you have a valid reason to be allowed to remain in Australia. The purpose of this interview is to inform that finding by collecting information about you and your reasons for coming to Australia…”

The script also warns that you could be removed and face ‘significant penalties’ for saying anything untrue. Then there are a few questions – including your occupation, whether you transited through other countries, and your reasons for coming to Australia. If you claim you are fleeing harm, there are follow-up questions. Based on  those answers, an initial finding is made and forwarded to a more senior officer, usually on the same day; if both agree that you have no case, you are ‘screened out’ and sent home, thanks to an essentially secret process. If two senior officials disagree, you are ‘screened in’ and allowed access to Australia’s asylum process for people arriving by boat. 

‘The main problem with enhanced screening is that it may result in people being returned to persecution or other serious forms of harm,’ says Professor Jane McAdam, Director of the Kaldor Centre for International Refugee Law at the University of New South Wales. 

The process originally was conducted on Christmas Island and in Darwin. However, notwithstanding considerable international criticism, the Australian government later began to conduct enhanced screening at sea, when boats carrying asylum seekers were intercepted and turned back. The process was also extended to Vietnamese asylum seekers. McAdam says that ‘[some] people who were turned back by Australia at sea were subsequently assessed to be refugees by UNHCR’, while others were ‘subjected to serious human rights violations in the country to which they were returned.’ Some were even taken into police custody on arrival.

Isobel McGarity, now a senior solicitor RACS, says, ‘I have such strong memories of this enhanced screening process, because I had just started at RACS as a student and it was crazy kind of frontier lawyering, where you're just trying your best with a system that wasn't very clear to us [as lawyers] either, because it's not actually part of the application process. It was this very arbitrary, cloaked, secret deportation process.

‘I was kind of incredulous that this was happening in my country,’ McGarity says, shaking her head. ‘I had no idea.’

Seven-minute stops and other surprises

Kumar’s claims were screened in, and so, like others in the ‘legacy caseload’, his asylum process began with mandatory detention. ‘I was transferred to many detention centres, from Cocos to Christmas Island, Christmas Island to Darwin at Wickham Point. Then I was also transferred to the Airport Lodge in Darwin – another detention centre [the government employs guards and calls these motels ‘Alternative Places of Detention’, or APODS] – and from there to Yongah Hill...’ he says, as the interpreter pauses for breath. 

McGarity, who was Kumar’s lawyer, tells us later, ‘This was all within the course of, like, eight months. So you're being moved constantly, and that movement could take place without any prior warning to you.’

Kumar resumes his travelogue. ‘.... And from Yongah Hill, I was transferred to Curtin, once more to Yongah Hill, and from Yongah Hill, to Darwin.’ 

Relocation while in immigration detention
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Australia’s onshore immigration detention network is comprised of several detention centres, spread throughout the country. There is also a detention centre on Christmas Island where many members of the legacy caseload spent some time. This was closed in 2018, but was reopened in August 2020.

It is common for detainees to be relocated – sometimes with very short notice or by force – to different detention centres within the network. This makes it difficult for detainees to maintain friendships and relationships of support with other people in detention and community volunteers. Relocation can also make it difficult to stay in contact with legal representatives. When detainees have access to a mobile phone this is made easier.

For more information, see this Sydney Morning Herald article: The 8000 'forced movements' on Australian flights in two years

No specific reason was given, he says. It seemed to him that as soon as you started to learn how the centre worked, or made some human connection, you were moved. ‘There was no specific attention given to keeping friends together… we were left feeling down. It had a strain on us mentally. I really came to hate those transfers.’

The strain also weighed on the lawyers. McGarity explains that, ‘Moving people would happen in the dead of the night, and so would deportation. So it was a really stressful time, because you might request a phone call with your client in a detention centre for the next day, and you'd be told that person is no longer here. You wouldn't be told where they were. You were just told that they weren't there anymore.

“It’s really arbitrary, really frightening. People would get herded in a group in the middle of the night.”

‘This has been a constant since I began at RACS in 2013, that people have been moved between detention centres without any prior warning, no prior warning to their lawyers. It's really arbitrary, really frightening. People would get herded in a group in the middle of the night,’ she recalls.

Despite his frequent transfers, Kumar was able to put his professional and language skills to work for new asylum seekers arriving to a confusing process. ‘He was a real organiser inside the detention centre, and he would organise groups of Sinhalese, which is his ethnicity, and also Tamil people who were faced with this enhanced screening policy,’ McGarity says.

‘[Kumar] was really instrumental in getting new people to call us,’ she says, because otherwise, they didn’t know they had a right to a lawyer, nor whom they could trust. ‘Telling them, these guys are okay, like they're safe to call; they’re lawyers, not the department.’ 

His help was especially invaluable on Christmas Island, where there was what McGarity calls ‘the seven-minute issue’. 

‘Their phones used to cut out after seven minutes without fail, which was bizarre,’ she says. As if someone had hung up. ‘So we'd get people to try and get their details over in seven minutes… with or without an interpreter, because you just didn't have the time, and then the call would cut out. 

‘So if you had a new person, you were saying really quickly, What's your name? Who were you with, in one sentence? Now, why can't you go back to Sri Lanka? It was like this panic of trying to get this information... and then we'd be faxing forms to the detention centre, which was a nightmare in itself – you have to physically go and fax these documents and you had to hope that [the private contracting company] Serco would get it to the client and that the client signed in the right spots. Sometimes a client might miss one signature box and you'd have to re-fax it. …[and] it was so time-critical.’

McGarity has also worked in gaols. ‘I think detention centres are harder because gaols have these processes in place and they're quite aware that people need access to a lawyer. Whereas I think some of that doesn't exist in the detention environment.’

Fate decided, face to face

Kumar’s all-important nine-hour interview was preceded by his ‘enhanced screening’ but also by many other interviews. This is not uncommon. The Director of RACS, Sarah Dale, says, ‘People who arrived in Australia by boat have been interviewed by the department before [their RSD interview].’ Some would have had a screening interview. Then, she says, ‘there is what's known as an entry interview – it's a shorter interview where we get a rough snapshot of where you've been, who your family are, and why you came to Australia [some people have two]. You might have also had an identity interview, if there's been questions about who you are. Some have ASIO interviews. For unaccompanied children, they've also probably had what's called an age-determination interview, where they determine how old they are. And only then would you have your protection interview.’

First, you have to wait for the Immigration Minister to allow you to apply for protection.

Then you file the paperwork, a form of at least 40 pages, with 110 questions, some of those with more than a dozen sub-questions.

Then, Dale says, ‘maybe months will pass, maybe years will pass, and you will be invited for an interview, and that interview can last from anywhere from 20 minutes to two hours, to four hours, to six hours, depending on your situation and the case officer that's interviewing you. 

‘That interview is an opportunity for the Department to ask you questions about your claims, but it's also technically your last opportunity to give evidence as to what your situation is and why you need protection,’ Dale explains.

The interview
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After lodging an application for a TPV or a SHEV, members of the legacy caseload must wait for correspondence from the Department of Home Affairs. The department will typically invite the applicant to attend an interview with an immigration officer. It may also ask for further information or documentation to be provided in writing.

At the interview, the officer will ask the applicant to provide more information about themselves and their claim for protection. If the applicant has a lawyer or migration agent, they may also attend the interview.

Following the interview, the department will decide whether the applicant has established that they need Australia’s protection, and whether they meet other requirements relating to health, identity, security and character. If all the requirements are met, the asylum seeker will be granted a TPV or a SHEV. Otherwise, their application will be rejected.

Kumar is meticulous, a hard worker, and he comes prepared for his protection interview. ‘I was very detailed. There were many questions that were asked as to why I came, and the people who were involved with my trip, and also my family's experiences [still in Sri Lanka], and we covered all the details.’

Kumar had never been released into the community, so for his interview, he was in a Darwin detention centre room with the decision-maker from the immigration department and an interpreter. McGarity, his lawyer, was on the phone. ‘Unfortunately, our funds as a community legal centre are so scarce, and it is expensive to get to Darwin from Sydney, so I had to attend by telephone. I remember I was in our offices in Auburn [in Sydney’s west], hunched over a laptop. Generally, these interviews were scheduled for about three hours.’

Kumar knew this was unusual. ‘There were many who had brief interviews – half an hour, one hour, some up to two hours – and they more or less emerged after that with the bridging visa,’ he says. ‘I couldn't quite figure out as to why I had such an interview of nine hours.’

If the decision-maker has gathered information that is damaging to the applicant’s claim, this will be presented during the interview. ‘I feel my heart sink sometimes when I go into interviews and an officer has like a little piece of paper or a little plastic sleeve of something that they put on the other side and they're very protective of,’ says Dale. ‘I just know in my heart that something's coming out of it that's about to make my job a little bit harder.’

It’s not easy being on the other side, either, says Sean Hanns, the former decision-maker. ‘I always found it quite confronting, putting the adverse information to people during interviews, because you need to give them all the information that may indicate they're not a refugee. It’s just quite confronting to sit there and watch someone kind of fold in on themselves as you quietly and, as politely as you can, outline reasons why the decision may not go their way.’ 

Kumar was flummoxed. He had one glass of water during it all. The interviewer kept asking him the same questions, wording them differently, over and over. ‘His claims were quite exceptional and there were a lot of technical details that the Department was interested in,’ McGarity says, ‘so he had to go through a lot of explanations of things related to the reasons as to why he had to leave.’

“It was just so bizarre to be sitting in Sydney focusing on this faint interview I am struggling to hear.”

Nature also played a part. ‘There was a tropical storm raging. So the phone line cut out part of the way through the interview and I was trying to call back and couldn't get through. They ended up having to move rooms, and found another part of the detention centre where they could call me back. It was just so bizarre to be sitting in Sydney focusing on this faint interview I am struggling to hear. 

‘It was very difficult to get through some of his evidence, including his fears for his family that continue to today. At one point [Kumar] was actually not coping very well. It was really hard for me to tell that over the phone, trying to read somebody’s voice,’ she says. ‘But he did really well, especially in such a difficult circumstance.’

When it was over, Kumar rose to return to his quarters. ‘The same officer came and said, “Look, you haven't had your meal yet,”’ Kumar recalls. He accepted the food and ate it alone in his room.

Future tense

Shaun Hanns describes two ‘schools of thought’ among the decision-makers. One he calls ‘find the refugee’ school: you go through everything you can and identify what would indicate that their fear of return is well-founded. The other school spends more time trying to disprove the arguments or find flaws or inconsistencies in the statements. ‘Depending on what school of thought [your decision-maker follows], that's going to change your outcome if you’re an asylum seeker.

‘The entire department wrestles with that,’ he says. ‘There's a very clear understanding that this system as it stands is quite capricious, and [the outcome] is down to who you get. And I don't think there's a huge level of comfort with that, even within the department.’

He says that when case officers ‘aren't giving asylum seekers the opportunity to provide their case in the best way possible, and just simple, basic respect… I don't think that's acceptable. I don't know how else to put that. But I have heard that some case officers are not as professional as they should be in these situations. I do think there's a lack of training on interviews, interview etiquette, quality control of interviews…. that's something the department really needs to look at.’

After his interview, Kumar called his family. ‘I told them that, look, I had this long interview, but I don’t know what the outcome is and how it worked out.’ 

He did not emerge with a bridging visa right away, but he was granted one four months later. He still had no decision about his protection claim, but at least he could be released from detention while he waited for the outcome of his refugee application. ‘I was very nervous. It’s a bit like a bird coming out of a cage, being released with a bridging visa.’

It was not until almost a year after his protection interview, and more than four years after he arrived in Australia, that Kumar finally got a decision: the Department accepted that he was a refugee. The decision-maker agreed that Kumar had a well-founded fear of being persecuted if he were returned to Sri Lanka.

He received a Safe Haven Enterprise Visa (or SHEV), valid for five years. He now lives in a regional area, he works, and he will eagerly tell you about each job, each shift, from dishwashing to construction. With the money he earns from these shifts, he sustains himself in Australia and his family in Sri Lanka. He hopes that when his SHEV expires, he will be able to apply successfully for another visa, which could enable him, someday, to reunite with his family. Prime Minister Scott Morrison has described achieving this goal as ‘a very high bar to clear’.  

‘I have three children,’ says Kumar. ‘One is 18. One is 16. One is 10. And I haven't seen them for [eight] years, the only contact I have is on WhatsApp on the phone. I see their faces [but] … I haven't seen my kids.

'I want to prep for something long-term. I can't go back, but [by the end of this visa] then haven't seen my kids for nine years. I need something.

‘There is an uncertain future for me.’

Podcast episode 4: A lifetime locked in detention

The average time asylum seekers spend in Australian detention is 564 days. Kumar shares his story of  being locked up for years without committing a crime. Hosted by Sisonke Msimang.

Hear Kumar’s story

10-Minute Law

A quick audio explainer on the legal stuff.
RACS Senior Solicitor Isobel McGarity explains enhanced screening, a 'cloaked, secretive' process that people at risk of immediate deportation.