The Immigration Department allows people with no training in the area to make decisions about the legitimacy of people's claims to be fleeing torture, a court heard yesterday.
The claim came on the first day of a Court of First Instance review into the government's system for assessing claims for asylum made under the UN's Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Nigel Kat, for the applicants, said the department had offered a two-day course in assessing such claims in September 2004, but none of the 13 people who attended were involved in making the decisions to return people to their countries of origin that lay at the heart of the six test cases under review.
'We don't even know if the people who did go read the supporting materials because no one was ever tested,' Mr Kat said. 'They went and they came back.'
The current assessment regime was established following a June 2004 Court of Final Appeal decision that said the government was obligated to set up a fair process for evaluating people's claims that they faced torture if returned.
Mr Kat said the fact the system that resulted was administered by the very same people who were responsible for administering the government's 'no asylum for refugees' policy meant that decision makers were potentially coming into the process with a skewed perspective.
The lack of training in how to objectively assess someone's claims to have been tortured, or even the legal framework in which such an assessment should be made, only contributed to the likelihood that applicants were not getting a fair hearing.
'We are seeking a declaration that the process is contrary to the high standards of fairness [required by the convention],' Mr Kat said.
Asked by Mr Justice John Saunders if he was suggesting the court should order the creation of an assessment body independent of the department, Mr Kat said that was an issue for the administration to tackle.
'[However,] if the body does not answer to a person charged with the duties of removal ... then the [government] will obviously be complying with the convention insofar as it is putting in place an independent system,' he said.
Mr Kat said it was particularly important to have proper legal assistance when decision makers may not understand the law.
That was evidenced by one of the test cases, of a man referred to only as 'M', who was ordered to be returned to Sri Lanka because the decision maker could find no link between the Sri Lankan government and the actions of the Tamil Tigers, from whom M was fleeing. M also cited the fact his father had been murdered by people who were still after him and also that he had been brutalised by the country's police - two areas where the decision maker also dismissed his claims as not being borne out under the convention because of no direct link to the government.
That decision showed a lack of a basic understanding of the legal framework in which torture applications should be assessed, Mr Kat said.
The review continues today.