Disclosure isn't surprising but the Guardian item is of interest in opening up the procedures of the notoriously opaque Department. The disclosure is based on access under court proceedings to the Department’s manual regarding 'Returns and removals'.
The Guardian states -
Australia has adopted a controversial practice of approaching foreign governments for travel documents for refused asylum seekers. The practice has raised concerns because the very fact an asylum seeker has applied for protection can give rise to a fresh asylum claim (known as a “sur place claim”) if the foreign government persecutes them for having sought asylum.
This is acknowledged in the removal manual, which states that “under no circumstances should they disclose any information indicating any previous PV [protection visa] applications (or any details of protection claims)”.
The Privacy Act prohibits the disclosure of personal information, but the manual says the department can get around this because the Migration Act “impliedly authorises” the department to pass on details to foreign governments to allow a person to be deported.
“Therefore, the disclosure of personal information for the purposes of obtaining a travel document would be permissible,” it says.
It also suggests the disclosure is legal if the asylum seeker has signed a form 1442i, which says that the department can contact foreign embassies and high commissions.
The policy generally adopts a view that removals can only occur once a claim for protection in Australia has been refused, but it contains several caveats.
The document reveals that:
- Removal officers can plan the removal of a person who is living in the community on a certain type of bridging visa.
- A direction from the Family Court that an asylum seeker should have access to a child in Australia does not override the department’s obligation to remove the asylum seeker.
- A request for ministerial intervention – which can allow an asylum seeker to relodge a protection claim with the minister’s permission – will be no barrier to involuntary deportation as long as it has the assent of the assistant secretary of the onshore protection division.
- When asylum seekers make complaints to the Australian Human Rights Commission, Privacy Commissioner or Ombudsman the process of removal will be halted only on a “case by case” basis.
- The Department reserves the right to override the rules preventing deportation if the person presents a risk of extreme harm to themselves or others, or where they have a history of “serial and vexatious litigation”.
- The Department can refuse to allow a person being involuntarily deported to speak to a legal representative if it would “unduly delay or jeopardise” the removal.