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Failed asylum seekers face personal data disclosure by immigration department

Monday, 13 April 2015

Failed asylum seekers can have their personal information disclosed to foreign governments in order to obtain travel documents if they are involuntarily deported, according to an immigration department manual.

The immigration department’s manual for “Returns and removals” for asylum seekers says it is lawful for the agency to disclose the information even if the individuals do not give their consent.

The September 2014 manual, which details how the federal government deports failed asylum seekers, both voluntarily and involuntarily, was obtained by Guardian Australia through court proceedings.

The federal government is attempting to secure a deal with Iran that would allow the involuntary return of failed asylum seekers, which Iran has previously not accepted.

Australia has adopted a controversial practice of approaching foreign governments for travel documents for failed 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 failed, 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 commonwealth 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.

Guardian Australia has previously reported that Australia has contacted the Syrian embassy before deporting failed asylum seekers who voluntarily agree to return.

The policy was updated the day after the Migration Legislation Amendment (no 1) Act was passed in federal parliament in September. It says it was reissued primarily to “ensure that an application for a bridging visa is not an impediment to the exercise of the s198 power to remove an unlawful non-citizen who is a detainee”.

It adds that it preserves the policy position that an asylum seeker cannot be removed “while they are entitled to apply for a substantive visa”.

The policy encourages removal officers to treat asylum seekers with dignity throughout the process, and to take into account all the circumstances of their case in determining how the removal should be managed.

The immigration minister, Peter Dutton, said on Monday in relation to the potential deal with Iran: “The federal government is working with a lot of countries to provide returns for people who have come here illegally.

“We have one of the proudest records in terms of the number of people we settle through the refugee and the humanitarian programs each year.”

A spokeswoman from the immigration department said: “For removal purposes, the Department is authorised under s198 of the Migration Act 1958 to disclose personal information, as necessary, in order to effect the removal of an unlawful non-citizen from Australia.

“This disclosure is permissible under Australian Privacy Principle (APP) 6.2(b), if required, for the purposes of obtaining a travel document.

“Any removal activity is assessed on its own merits prior to any action taken.”

Source: The Guardian

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