6.1
This chapter details the aftermath of Australia’s evacuation efforts in August 2021, focusing on assistance provided to Australian citizens, permanent residents and visa holders who remained in Afghanistan following the initial evacuation effort.
6.2
It then discusses issued raised in relation to the Locally Engaged Employee (LEE) program for Afghan nationals who assisted in Australian Defence Force (ADF) operations in Afghanistan and other Australian diplomatic and humanitarian activities in the country.
Australian citizens, permanent residents and visa holders remaining in Afghanistan after the immediate evacuation efforts
6.3
A significant number of people attempted to access the Australian evacuation flights at Hamid Karzai International Airport (HKIA) in Kabul from 18 to 26 August 2021 but were ultimately unsuccessful.
6.4
The committee heard concerns about the severe risks now faced by these individuals. These concerns were summarised in statements such as the following, from the Australian Muslim Women's Centre for Human Rights:
While Australia tried to rescue people, a large number of people who the Australian government had promised to not leave behind, have been “left behind” and thus feel “betrayed”, such as interpreters who had worked alongside the Australian military in Afghanistan, with some granted permanent visas by the government. As the evacuation missions have ended, and with land borders remaining closed, many are trapped inside Afghanistan, fearing the worst, should the Taliban find them.
6.5
The Department of Defence (Defence), Department of Foreign Affairs and Trade (DFAT) and Department of Home Affairs (Home Affairs) were questioned at length about how many Australian citizens, permanent residents and temporary visa holders had been ‘left behind’ following the conclusion of the evacuation from HKIA, and what options remain for these individuals and families.
Individuals who have left Afghanistan since 26 August 2021
6.6
DFAT advised the committee at a public hearing on 15 November 2021 that since the conclusion of Australia’s air evacuation operation in August 2021, DFAT ‘has continued to support the safe travel of over 1,000 further Australians, permanent residents, and visa holders out of Afghanistan and onward to Australia’. This brings the total number of these individuals who have departed from Afghanistan since the Taliban takeover to ‘in excess of 5,150’ after the initial evacuation efforts brought 4,168 people out of the country.
6.7
Mr Simon Newnham, Acting Deputy Secretary and Crisis Coordinator, DFAT, informed the committee that just under 900 of these individuals had crossed the Afghan border overland into Pakistan, while 103 others have departed from Kabul on flights chartered by the Qatari government, and around 80 have presented to Australian missions in other countries.
6.8
Mr Newnham provided further detail on how these individuals had been able to leave Afghanistan:
There are a number of different ways in which this occurs. We're very much focused on flights out of Kabul's Hamid Karzai International Airport, and as that becomes a more viable commercial option we expect to see increases in the numbers departing via those flights. We've had some success already with three flights chartered by the Qatari government, with coordination from DFAT and colleagues here to help fill a number of seats we've been able to secure on that route out of Afghanistan. I can also say that individuals are continuing to present at the border, particularly with Pakistan… [W]e're working through our embassies in the region, particularly out of Islamabad, to assist those who do present at the border, and just under 900 individuals have been able to cross the border and be assisted by our high commission ... They are probably the two main pathways. There are others presenting in other capitals that have Australian passports or are permanent residents or hold visas, and, of course, we assist them too, but they are a much smaller number.
6.9
In relation to individuals that are presenting to Australian officials in countries other than Pakistan, Ms Kate Logan, First Assistant Secretary, Consular and Crisis Management Division, DFAT, commented:
Some small numbers have managed to cross the border into Iran and have managed to fly on to Australia from there. Some other numbers—very low numbers—have gone to Tajikistan and Uzbekistan. We know around 80 Australians, permanent residents and visa holders have arrived into capitals across Europe and the Middle East, again, making their way out of Afghanistan that way.
6.10
Mr David Wilden, First Assistant Secretary, Refugee, Humanitarian and Settlement Division, Home Affairs, told the committee at its 15 November public hearing that since the evacuation phase, there have been ‘an additional 40 flights that have had 449s, Australian permanent residents or Australian citizens on them’ bringing people to Australia, including a significant number on flights from Pakistan.
6.11
DFAT provided a further update in response to a question on notice, stating that as at 22 November 2021, the government has now supported 1,706 people to travel safely to Australia following the evacuation phase of 18–26 August, comprising 45 Australian citizens, 192 Australian permanent residents, and 1,469 other Australian visa holders.
Citizens and permanent residents still in Afghanistan registered with DFAT
6.12
DFAT provided several updates to the committee over the course of the inquiry on the number of Australian citizens and permanent residents remaining in Afghanistan who had registered on DFAT’s Consular and Crisis database.
6.13
Mr Newnham informed the committee that as at 1 October 2021, 129 Australian citizens and 157 permanent residents had registered DFAT’s database as requiring assistance from government. By 22 October, 96 Australian citizens and 106 permanent residents were registered on DFAT’s database for Afghanistan.
6.14
Mr Newnham subsequently advised at the committee’s 15 November public hearing that, as at 12 November 2021, those numbers had reduced to 87 Australian citizens and 82 permanent residents in Afghanistan registered on DFAT’s consular assistance database.
6.15
When asked what avenues are causing these numbers to fall, Mr Newnham observed:
The first thing I'd say is that these numbers are highly fluid. Individuals are registering on the database from time to time, and we're working our way through that list. Putting that aside, the major feature…is that whereas at the end of the evacuation we had in excess of 4,100 evacuees, as a result of the combined efforts of all those represented today and colleagues overseas, we now have in excess of 5,150 total who have departed from Afghanistan since the Taliban takeover, which is an increase of around a thousand since our last appearance before the committee.
6.16
Mr Newnham acknowledged that DFAT did not have an estimate of how many other Australian citizens and permanent residents may still be in Afghanistan but have not registered with DFAT.
Number of visa holders remaining in Afghanistan
6.17
Officials were questioned on how many visa holders and visa applicants remain in Afghanistan, and were unable to provide an exact figure or estimate of those numbers. Mr Wilden of Home Affairs offered the following explanation at an Estimates committee hearing on 25 October 2021:
We don't know how many people are in Afghanistan. That's one of the challenges, obviously. There have been a number of visas granted across a number of categories. Some of the people had their visas granted two or three years ago and have never presented at an Australian border. So we can't say with any certainty how many people are in Afghanistan. People are crossing borders. We hear of hundreds crossing into Pakistan every week and hundreds into Iran. We have people with 449s popping up in all manner of countries, who have either been evacuated by other nations as part of that process or made their own way there. So there's no accurate figure I can give in relation to how many visa holders are currently in Afghanistan.
6.18
Mr Wilden informed the committee at its public hearing on 15 November that Home Affairs does not retain a ‘master list’ of visa holders by country overseas, nor for visa applicants, and explained:
In terms of the visas, we have the list of numbers and the people attached to that who were given an invitation letter or given the visa during the evacuation phase. There are still cases where people present in any number of countries, and, if they're a valid visa holder and they have other family members, we grant another visa. There's no master list of people who make representations, purely and simply because we have a longstanding process for people to seek protection in Australia or come via any means [for] that matter. My evidence last time was 26,000. That number has clearly gone up in terms of the people who've applied for protection visas who are already outside Australia, and they may be in any number of locations.
We focus on those from whom we have received a visa application or, in the case of the 900 or so, those who got the letter but weren't granted the visa. We monitor those in case they come to our attention, at which point—with the minister's authority, as it is the minister's visa—we can grant a visa to allow them to come to Australia.
6.19
Mr Wilden reiterated that some Australian visa holders who were in Afghanistan in August 2021 and were not evacuated by Australia at that time had been evacuated by other countries or had otherwise found a way to leave Afghanistan since:
[We would] also note that a lot of these people have left Afghanistan already. A lot of them were picked up by other countries. We have already found visa holders who've come to our attention in the US, in the UK, in many of the surrounding countries and in Europe, who we are now trying to facilitate to get here, so it's not as simple as who is left behind in-country versus who holds a valid visa to Australia.
6.20
In relation to subclass 449 visa holders who had been issued emergency visas since the Taliban takeover of Afghanistan, the committee heard that out of a total of 5,636 individuals granted these visas, 3,568 had arrived in Australia as at 12 November 2021, meaning that 2,086 individuals holding these visas are still outside Australia.
6.21
Ms Cheryl-ann Moy, Deputy Secretary, Immigration and Settlement Services Group, Home Affairs, estimated that around 1,100 of these individuals are in Pakistan, where the DFAT post is working with them. Ms Moy told the committee that Home Affairs cannot definitively say how many of these individuals are still in Afghanistan, explaining:
In regard to where those individuals may be who were granted a 449 but have not yet arrived in Australia or come to our attention, as you heard earlier, DFAT is still working with people at the border. Also, we have people who have arrived from Frankfurt, London, New Delhi, Istanbul, Tokyo, Los Angeles, Kuala Lumpur and Singapore. So when we ask, 'Where are those individuals?' we can do the maths and say, 'This many have arrived and this many haven't,' but to be able to say that they're actually in Afghanistan is very difficult because people have made their way to other places, been picked up by other coalition members or made their way in other ways across land borders or perhaps were out of the country at the time they were granted the 449.
Partner visa holders
6.22
Home Affairs did inform the committee that, as at 11 October 2021, there were 394 Afghan Partner visa (subclasses 300/309/100/820/801) holders outside Australia, but that Home Affairs has no visibility of whether these individuals are in Afghanistan or in in another country, as it ‘does not track the movements of visa holders outside Australia’. More broadly, Home Affairs stated:
The Department is unable to confirm or determine the location of visa applicants who are outside of Australia.
When applying for visas, applicants are required to provide this information and are required to keep the Department apprised of their contact details. However people may have elected to leave their original location and may not have updated the Department.
Other estimates of visa holder numbers remaining in Afghanistan
6.23
Representatives of GAP Veteran and Legal Services (GAPLS), a legal and advocacy organisation that has assisted ‘Afghan Nationals who worked with the Australian Government and its contracting partners’ provided estimates of the number of visa holders still remaining in Afghanistan.
6.24
Mr Glenn Kolomeitz, Director, GAPLS, gave evidence at the committee’s 11 October 2021 public hearing that 1,300 Australian visa holders who are direct clients of GAPLS remain in Afghanistan seeking urgent evacuation. Dr Kay Danes, Humanitarian Advocate, GAPLS, estimated that the overall number of Australian visa holders remaining in Afghanistan is in excess of 5,000, and explained the difficulties in ascertaining accurate information:
Including our people, I believe the total figure is in excess of about 5,000 people—Australian visa holders, to be sure. The problem with identifying the exact number is the disconnect between all the organisations that are working separately and not together because there isn't a central hub where everyone can go, like the Americans have. I'm part of a network that's tapped in with the American private contractors that are evacuating AMCITs, American citizens, et cetera from Kabul. They have a very coordinated effort because they have a central hub and they have the support of the private sector and government. Australia doesn't really have that, so we're working and we're finding each other. Then we're finding stragglers—for instance, a Supreme Court judge, not to go into any detail, found out that we were facilitating evacuations or processes for evacuation, and so they came on board. Other people have come to us and said: 'I've got an interpreter that I worked with and I can personally vouch for. These are their details, they uploaded them to the cloud before they burned them.' All of those sorts of people are coming to us asking: 'Please, you guys seem to be the most effective and most organised. Can you help us to get on your list?' We have a priority list. We have a group A list, a group B list, a group C list and a whatever list. We've got a lot of names. We've got a lot of data and throughout this time we have done nothing but try to offer our data to the Australian government, the people who apparently can check things really thoroughly. They can see what visa holders are left behind and who needs assistance.
Reasons for individuals remaining in Afghanistan
6.25
Mr Newnham stated that of those Australian citizens and permanent residents registered with DFAT, ‘in many cases registration means individuals are seeking to leave the country, but in many other cases individuals are unwilling or unable to leave, as well’.
6.26
Mr Newnham acknowledged that in some cases where individuals are currently unwilling to leave the country, this may be because they have family members that they would like to leave with who are awaiting visa approval from Home Affairs. Mr Newnham commented:
[We] are assiduously working our way through the list of those who have been registered, including where they cite family members seeking visas, and we certainly work very well and collegially with colleagues at home affairs to seek to expedite the possibility of visa applications. These are complicated, at times, and quite complex, and a number of pieces of data need to be accessed, but that is an ongoing effort. That's central to our effort.
6.27
Mr Daniel Sloper, Special Representative on Afghanistan, DFAT, outlined that a significant volume of work is being undertaken to resolve these issues. Mr Sloper commented further on the nature of these cases and the difficulties in maintaining up-to-date figures:
I want to reassure you that we constantly have people in our consular team in the Department of Foreign Affairs and Trade and the visa-processing team cross-referencing those cases. Many are what we'd describe as a blended family—you may have a permanent resident, a passport holder or somebody who already has an entitlement to travel to Australia, and others with the 449 temporary protection visas. You're right that they need to be reconciled, and we're working constantly to do that. I note, though, that this is not the only reason they are not choosing to travel. You probably already understand the context, but there are great restrictions at the moment around departure. We're working to support them, but we want to resolve their visa status. One of the complexities is that those who were there when we left on 26 August have now scattered, and our data is constantly being updated. That's the challenge the officials have when providing accurate figures, because each week it changes. We're cross-referencing within the Australian government and are now trying to reach out to other governments.
6.28
When asked how many of the Australian citizens and permanent residents in Afghanistan are part of ‘blended families’ with different visa and citizenship statuses, Mr Sloper commented:
I don't have the breakdown according to individuals with me, but as a rule of thumb…we could say that as a whole it's probably one to four. That is, most have family members, but it'll vary according to each individual. In some cases we may have one or two applications involved—individual applicants or a couple—and in others we may have a large family, which will mean that number is 10 or 15.
6.29
Mr Wilden added that when processing this caseload, ‘one of the key issues is what the definition of 'family' is’:
We have a definition under policy of 'immediate family'. Given the desperate circumstances, a lot of people came out who would not normally be able to come out under a visa. It's generally your immediate dependants, and doesn't go to brothers, sisters, cousins et cetera. A lot of the requests we now get are about those extended family members. So there are limits as to what we can actually do.
6.30
Mr Wilden commented on Home Affairs’ work with DFAT on these visa applications, within the context of Australia’s overall humanitarian program:
[W]e do work very closely with [DFAT]. When they have information pertinent to someone's relative and it does relate to a visa concern, they raise it with us. We can then go into our systems to see where those applications are up to—if they can be expedited or if they just need to run their course. It comes down to the individual circumstances.
One of the things we have to keep in mind is that everyone coming in on these visas will be a humanitarian entrant, and there is a limit on the amount of humanitarian visas granted every year. That is based on the priorities as set by government. We don't absolve ourselves, if you like, from considering those relative priorities when we look at someone's claims. There are many more people in need of protection around the world and in Afghanistan than we have places available, so triaging and assessing relative priority is very important.
Options for assisting individuals still in Afghanistan
6.31
A number of submitters and witnesses called on the Australian Government to redouble its efforts to maintain communication and facilitate the evacuation of visa holders from Afghanistan and Pakistan. For example, the Law Council of Australia (Law Council) submitted:
The experience of [legal] practitioners is that many Australian visa holders remaining in Afghanistan and Pakistan have not received any information or assistance in relation to evacuation and have not received consular assistance.
…
The Law Council understands that facilitating the further evacuation of visa holders from Afghanistan is extremely difficult, and that it may also be challenging to maintain contact with such persons. However, it suggests that further efforts continue to be made to maintain contact with people still in these areas to provide information on how to depart.
6.32
DFAT stated that Australia ‘has continued to work with international partners to explore options to assist Australians and their immediate family members and other visa holders who wish to depart Afghanistan’:
We advise through our Travel Advice on Smart Traveller that all travel throughout Afghanistan is extremely dangerous. We also advise that some border crossing points are at risk of terrorist attack, [and] all people who attempt to travel within Afghanistan, including to borders, do so at their own risk.
6.33
When asked what plan is in place to get Australian citizens, permanent residents and visa holders still in Afghanistan to safety, DFAT stated:
Travel throughout Afghanistan is extremely dangerous, and our travel advice recommends Australians stay in a safe place.
Australia continues to work with international partners to pursue all opportunities to assist Australians and their immediate family members who wish to depart Afghanistan, including working with the Qatar Government to facilitate the departure of Australians on flights from Kabul.
Australia is supporting citizens and visa holders who reach border crossings out of Afghanistan in selected circumstances:
some land borders are closed to travellers seeking to cross from Afghanistan and some border crossing points that are open are at risk of terrorist attack
border crossing points may be closed by authorities without notice, especially when crowds gather or where there are concerns of an increased risk of attack.
On presentation in locations outside Afghanistan, visa holders are being assisted by DFAT and Home Affairs to transfer to Australia, including COVID-19 testing and border exemption processes:
for subclass 449 holders this facilitation also involves collection of biometrics and security checks.
6.34
Mr Sloper observed that it is quite difficult for DFAT to get specific information about the broader security situation on the ground in Afghanistan, and reiterated that DFAT’s advice ‘remains for people to make their own judgement, because movement across the country can be quite difficult and volatile in certain areas’.
DFAT ability to provide consular assistance in Afghanistan
6.35
DFAT submitted that while its ability to provide consular assistance in Afghanistan is now severely limited, it continues to 'support Australian citizens, permanent residents and their immediate families remaining in Afghanistan', including through a dedicated Afghanistan Consular Unit in DFAT and the work of consular officials across the region. DFAT submitted that it 'is important to note that not all our citizens wish to leave Afghanistan, and some wish to leave but not at this time'. DFAT noted further:
Our consular officials have sent over 6,000 emails and 4,000 SMS messages to provide critical updates to travel advice and to respond to emergency enquiries. We are providing support to renew or replace Australian travel documents. We are also in regular contact with over 200 individuals and their families to check on their welfare. We are providing financial assistance for those needing support with living expenses. We are assisting Australians and visa holders who have crossed or arrived at international borders since evacuation operations ceased. We will continue to assist those trying to return to Australia, including as commercial options for departing Afghanistan emerge.
6.36
DFAT emphasised that ‘we are doing everything we can to assist those still in Afghanistan’, adding that its support for consular clients also includes referrals to mental health services and support for family members awaiting visas. Mr Newnham reiterated at the 15 November public hearing that ‘[i]t is the case, of course, that we continue to assist a great number of individuals with respect to consular cases and to expedite visa applications’.
Issues relating to the Locally Engaged Employee program
6.37
A significant issue raised during the inquiry was the operation of the Locally Engaged Employee (LEE) program, for Afghan nationals who worked with Australian forces during their operations in Afghanistan (for example, as interpreters) and were subsequently at-risk because of their association with Australia.
Overview of the LEE program
6.38
In December 2012, the government announced it would offer resettlement to eligible Locally Engaged Employees (LEEs) at risk of harm due to their employment in support of Australia's mission in Afghanistan, 'as a reflection of Australia's moral obligation and gratitude to those who provided invaluable support to Australia in Afghanistan'.
6.39
This program commenced in January 2013. There is no specific class of visas for LEEs; rather, the program specifies a class of persons for the purpose of granting Refugee (subclass 200) and In-Country Special Humanitarian (subclass 201) visas to non-citizens at risk of harm as a result of their employment by the ADF, DFAT, the Australian Agency for International Development (AusAID, now part of DFAT) or the Australian Federal Police (AFP) in Afghanistan. Eligibility extends to immediate family members of the LEE.
6.40
Gaining a visa through the LEE program occurs in two stages: firstly, gaining certification as an LEE; and then undertaking the visa application process.
6.41
Firstly, the individual must be certified as eligible for the program by the relevant Australian department or agency they worked with in Afghanistan, with the relevant Minister then signing off on certification. The relevant decision makers for these certifications are the Minister for Defence, in relation to LEEs engaged with the ADF, and the Minister for Foreign Affairs in relation to LEEs engaged by DFAT.
6.42
To be certified as eligible, applicants must meet criteria set out in the relevant enabling legislative instrument under the Migration Regulations, which was authorised by then Minister for Immigration and Citizenship the Hon Chris Bowen MP in December 2012. These criteria include that the applicant has been assessed as being at 'significant individual risk of harm as a result of their support to Australia’s whole of Government mission in Afghanistan due to their role, location, employment period and currency of employment'.
6.43
The legislative instrument governing the LEE program contains an exclusion for individuals who are, or were, Afghan government or military officials or were employed in a private security capacity, as well as any individuals who are not Afghan nationals. There is also a general requirement that an individual must have sought to be certified by the relevant agency within six months of ceasing employment.
6.44
The legislative instrument nominates several specific classes of employees who do qualify for certification, and also allows for the Minister to certify an individual as an LEE 'who is able to satisfy the relevant agency Minister that exceptional circumstances exist' that would warrant certification.
6.45
Defence informed the committee what criteria it uses to determine when 'exceptional circumstances' exist to enable the Minister to certify a LEE application when an individual would not otherwise qualify, and whether these criteria had changed over time:
Defence considers demonstrable threat to life as a result of employment, an inability to communicate electronically or being unaware of the existence of the LEE program as exceptional circumstances.
Defence did not change its conditions for exceptional circumstances, but determined all former employees to be at risk as the Taliban advance accelerated.
In July 2021, Defence advised the Minister that all LEE were now regarded as being at risk and re-evaluated LEE formerly certified as ineligible with this assessment in mind.
6.46
Defence noted that over the life of the LEE program, around half of all certified LEE applications had involved determinations of exceptional circumstances. DFAT advised that the Foreign Minister ‘has exercised this discretion, in the case of 43 individual certifications in 2021’.
6.47
Defence provided information to the committee about its certification application processes for the LEE program:
Defence provided information on how to apply for [LEE] certification to individuals, where possible while they were employed. Defence maintained a contact point for enquiries at the Afghan LEE inbox[.] This was the primary point of contact.
Defence would respond to initial enquiries with information on the program and provided application forms to individuals who provided information that indicated they were possible LEE. Upon receipt of a completed application form, Defence created a case file, checked Defence records and any documentation provided by the applicant, interviewed any nominated referees who could be located and made a recommendation for certification as either eligible or ineligible. Once the Minister certified the applicant, eligible applicants had their status advised to the Department of Home Affairs. Applicants were advised of the decision, along with what options were now open to them. For eligible applicants, this was to apply for a Humanitarian visa via a specified email address in Home Affairs. For ineligible applicants, it was to consult Home Affairs regarding the other visa options still open to them.
6.48
Defence noted that it advised employees of the conditions of the LEE program when providing application information, as well as advising enquirers at their initial contact of the conditions for eligibility. Applicants were advised of the six-month timeframe since employment ‘in the proforma email responses to initial enquiries, and again in the covering email providing the application form’.
6.49
Once an individual has been certified by the relevant Minister, the LEE is provided with information about how to make a visa application, and they and their family are required to lodge visa applications with Home Affairs. Applicants in Afghanistan are assessed against the criteria for a Subclass 201 In-Country Special Humanitarian visa. Home Affairs submitted that being certified as an eligible LEE does not remove the requirements for the individual and their family members to have their visa applications processed in the usual manner and meet the criteria set for visa approvals:
While processing is prioritised, LEEs and their families must meet the same general visa criteria—including the identity, security and health criteria—as all other applicants. Claimed family members must meet the general definitions of a member of the family unit or immediate family of the LEE, similar to other applicants for visas in the same visa subclass.
The Department [of Home Affairs] has no visibility of holdings or processes of other Departments in relation to the number of potential certifications. When a person is certified as an LEE, they are provided with information about how to make a visa application.
6.50
Visas granted to LEEs form part of the annual Humanitarian Program intake (that is, they fall within the ceiling set by the government for the relevant year).
6.51
DFAT stated that over the time of the LEE program, in total ‘nearly 4,000 individuals with a connection to the program have arrived in Australia’.
6.52
More than 2,020 humanitarian visas have been granted to Afghan LEEs and their families, the significant majority being Defence LEE. Eight hundred and eighty-seven of these visas have been granted since January 2021. A further 2,000 Afghans who were certified LEE, or applicants for certification, and their family members, were issued emergency safe haven 449 visas at the time of the Australian evacuation operation in August 2021.
6.53
Home Affairs noted that fewer than five LEE visa applications have been refused on security grounds over the life of the program.
Number of LEE certified by Defence
6.54
Defence provided further information in responses to questions on notice on the number of enquiries and applications for LEE certification it received over the life of the program, and in particular during 2020 and 2021. Defence stated that it ‘has processed 1,619 Locally Engaged Employee cases since the program began’. Defence stated that it registered 28 new cases in 2020, seven new cases in the first quarter of 2021, and ‘86 new cases since 1 April 2021’.
6.55
Defence informed an Estimates committee hearing on 27 October 2021 that, of the 1,619 Locally Engaged Employee cases it has processed since the program began:
the Minister certified 677 individuals as LEE;
516 were certified as ineligible;
356 applications were closed when the applicants declined to continue; and
70 applications have not been finalised.
Number of LEE certified by DFAT
6.56
DFAT officials stated that over the life of the program, the Ministers for Foreign Affairs have certified 134 individuals as LEE, of which 104 have subsequently been granted a visa (as at 8 October 2021). Over the life of the program, 594 individuals have been refused certification as DFAT LEE.
6.57
It was noted that there have been ‘a considerable number of further applications’ for DFAT certification made since the evacuation phase finished in August 2021.
Operation of the LEE program during Australia's withdrawal from Afghanistan
6.58
This section presents the evidence provided by Defence, DFAT and Home Affairs about the LEE program’s operation during the final years and months of Australia’s engagement in Afghanistan, and details criticism of the program raised by other submitters and witnesses.
LEE visa grants over the course of the program
6.59
Data provided by Home Affairs (shown at Figure 6.1) shows that humanitarian visa grants to Afghan LEEs and their families were around 550 at the start of the program in 2013–2014, before declining through to
2019–20 and then increasing markedly in 2020–21 and the first quarter of the 2021–22 financial year, corresponding with the end of Australia's engagement in Afghanistan and the fall of Kabul.
6.60
Home Affairs commented on the situation in the lead up to Australia's announcement of its withdrawal in April 2021:
Through 2020 and the first quarter of 2021, the Department decided 85 visa applications from LEE (totalling 105 applicants). While reflecting the impact of COVID 19, this reflected a longer term trend in applications and decisions relating to LEEs, and the relative stability of Afghanistan itself. On 1 April 2021, the Department had 108 visa applications on hand from LEE, which, with the addition of family members, totalled 538 applications.
6.61
Home Affairs provided a further breakdown in the number of LEE visa applications received and granted by Home Affairs from April to August 2021, shown at Figure 6.2.
6.62
When asked how many LEE visa applications had been received by Home Affairs in the program prior to 15 April 2021, when the Prime Minister announced the ADF withdrawal from Afghanistan, Home Affairs stated that 574 Afghan LEEs had lodged a class XB (offshore) Humanitarian application (totalling 2,455 applicants) by that date. Home Affairs noted further:
another 15 LEE visa applications were received by Home Affairs between 15 April and 25 May 2021, when the closure of the Kabul Embassy was announced;
a further 16 LEE visa applications were received between 25 May 2021 and 1 July 2021. On this date, 120 applications remained on hand (totalling 460 applicants).
a further 33 LEE visa applications were received between 1 July 2021 and 14 August 2021, at the time of the fall of Kabul to the Taliban.
Processing times for Humanitarian visa applications by certified LEE
6.63
Home Affairs also provided information about the average processing time for LEE visas since the program’s commencement, shown at Figure 6.3.
6.64
When asked about why average processing times had lengthened significantly in the 2020–21 program year, Home Affairs stated:
The number of visa applications lodged under the Afghan LEE program in 2019–20 was more than what was collectively received over the previous three years. The flow on effect of this was an increase in processing times. Less complex applications were finalised in 2019–20 (average 21 weeks), whereas the more complex cases took longer to be processed.
The COVID-19 pandemic has significantly impacted the Refugee and Humanitarian Program. Whilst the LEE program has a streamlined process and remained a Government priority, it was not immune from these impacts.
COVID-19 impacts included resource constraints at Posts due to other priority activities (assisting the return of Australians and Australian Permanent Residents for example) and workplace access issues for staff due to COVID-19 risk management practices.
DFAT LEE applications during Australia’s withdrawal phase
6.65
DFAT provided detailed information on the number of LEE certification applications it has received and processed.
6.66
Between December 2012 and 15 April 2021, DFAT received 113 applications for LEE certification, and 45 DFAT LEE and their families (totalling 215 people) were granted visas and resettled in Australia under the program.
6.67
DFAT outlined that following the closure of the embassy in May 2021, it 'received a significant increase in enquiries related to the LEE visa program'; between 25 May and 30 June 2021, DFAT received 105 new applications from individuals seeking LEE certification, with a further 117 applications received between 1 July and 15 August. The Minister for Foreign Affairs certified 63 LEE from May to August 2021.
6.68
Between 15 April and 17 August 2021, a further ten LEE visas had been granted, bringing the total under the program to 55 LEE and their families (totalling 270 people).
6.69
DFAT later advised that as at 8 November 2021, ‘around 445 DFAT LEE and their family members have arrived in Australia under the program’.
6.70
When asked how many DFAT LEE visa holders remain in Afghanistan, DFAT stated that, as of 2 September 2021, ‘49 of 89 certified LEE (82 of whom were certified in 2021) remain offshore’, with DFAT unable to advise how many of these remain in Afghanistan.
Numbers of LEE departing Afghanistan from April to August 2021
6.71
Between 1 April and 15 August 2021, the transport of 438 LEEs and their family members to Australia was facilitated by Home Affairs and the International Organisation for Migration (IOM), using commercial flights. This process included securing ‘above caps’ COVID-19 hotel quarantine places for their arrival into Australia.
6.72
Home Affairs explained that as at 15 August 2021, when Kabul fell under Taliban control, there were 37 certified LEE visa applications before Home Affairs, of which two were not granted because the applicants were already in another country or did not otherwise meet visa criteria. The remaining 35 applications were accepted: 14 were subsequently granted In-Country Special Humanitarian (subclass 201) visas, while 21 were considered instead for the grant of subclass 449 visas.
6.73
Home Affairs stated further:
The Department will continue to process the existing subclass 201 visa applications lodged by those LEE who were granted a subclass 449 visa. It is not uncommon for LEE to have worked for more than one Coalition partner over time, and the general requirements of Australian law mean that in the event a LEE has been given protection by another Coalition partner, their application for Australia’s protection is refused as they do not therefore need Australia’s protection.
6.74
Home Affairs noted in its submission that of the 35 visas granted to LEE after 15 August 2021, 18 LEE have subsequently arrived in Australia which, with family members, equates to 91 people.
6.75
Home Affairs stated that 'the location of the remaining 17 LEEs who were granted subclass 449 visas and who have not arrived in Australia is currently unknown'. It noted that while these LEE have not yet arrived in Australia, 'subclass 449 visa holders who are presenting at other locations are still being transported to Australia'.
Processes and planning during the withdrawal phase
6.76
Home Affairs submitted that following the government's announcement on 15 April 2021 outlining the ADF withdrawal from Afghanistan, 'further detailed planning was undertaken by the Department to ensure Australia was well placed to facilitate the visa grant and departure of LEE and their family members ahead of withdrawal', including meetings with other relevant agencies 'to identify timeframes and processes that were required ahead of departure for this group'. Home Affairs also commissioned additional health resources through the IOM, 'to undertake the necessary health information and biometrics collection'.
6.77
DFAT noted that in its 4 May submission to the Foreign Minister recommending the closure of the Kabul Embassy, DFAT outlined the implications for the DFAT Locally Engaged Employee visa scheme, estimating that ‘around 16 DFAT Locally Engaged Employees of the Embassy and immediate families—in the range of 50–100 people—might be expected to submit visa applications in future’. The submission stated that the number of certification applications from DFAT LEE could increase if security in Afghanistan deteriorated.
6.78
An inter-departmental committee (IDC) was established on 18 May 2021, to work through the implications of the Kabul embassy’s closure for LEE applicants. Mr Wilden of Home Affairs stated:
With the announcement of the closure of the embassy, we had an IDC about what the next steps would be. We highlighted at that point the need for referrals to reach us so that we could start processing their permanent protection visas, because they do take some time to go through the various steps of health, character checks et cetera. So pretty much immediately after the embassy—within weeks of the announcement—we were in the planning stage of making sure that locally engaged employees that were being sponsored by the other departments were referred to us for processing for their protection visas.
6.79
DFAT advised that once the government had taken the decision to close the Kabul embassy, DFAT, Defence and Home Affairs ‘worked closely to advise the Government on the overall estimated number of LEE and families who may seek to depart Afghanistan’ under the LEE program, ‘taking into account those who already had humanitarian visas, those holding a certification applying for an LEE visa, those seeking certification, and those who might apply in future’.
6.80
DFAT stated that the assessment at that time (late May 2021) was that these cohorts amounted to around 1,000 individuals. Home Affairs then ‘maintained an up-to-date assessment’ with input from DFAT and Defence.
6.81
DFAT outlined further measures taken in relation to the LEE program, stating that the government decided in late May, on the basis of advice provided, to ‘review previously unsuccessful visa certification applications and the processing of other visa classes’, expedite the processes of certification and visa processing, and ‘prioritise the use of commercial flights, considering other means of departure later if needed’. DFAT stated further:
The Government worked through significant constraints of quarantine and caps and with state governments to facilitate entry for LEE and family members above caps. Additional resources in the International Organisation for Migration to conduct health checks were commissioned by Home Affairs. Travel exemptions to enter Australia were arranged. Costs of quarantine were covered.
6.82
Home Affairs submitted that in June 2021, 'in keeping with Government direction, certification of persons as LEE and support with the lodgement of visa applications…was further prioritised by relevant agencies', with a commitment to visa processing and arrival in Australia for LEEs to be finalised by 31 August 2021.
6.83
When asked whether any department had been tasked with initiating evacuation planning for LEEs in mid-June 2021, following public commentary about safety concerns for Afghan interpreters who worked for the ADF and were still in the country, Defence responded:
At that time, commercial flights were available for LEE. There was no reason for an evacuation to be conducted by the ADF. Under its contingency planning framework, Defence routinely plans for the conduct of such operations.
6.84
Home Affairs submitted that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alex Hawke MP, wrote to the Ministers for Defence, Foreign Affairs and the Attorney-General on 7 July 2021, requesting that all certification of LEEs be completed by 10 July 2021, on the basis that Home Affairs would commit to finalising visa processing of all cases on hand on that date. Home Affairs submitted that this commitment was met by departments.
6.85
DFAT noted that ‘[a]t the request of the Foreign Minister in July [2021], DFAT re-examined all certification refusals made from 2013 to 2020, which led to certification of 7 individual applicants’.
6.86
A departmental submission to Minister Hawke, dated 12 July 2021 and subsequently released under Freedom of Information laws, noted various difficulties in processing visa applications for the LEE cohort, and increasing issues for this cohort being able to travel out of Afghanistan on commercial flights:
There are ongoing challenges to the processing of humanitarian program applications, including Afghan LEE applications, as a result of continuing restrictions on the Department’s offshore activities and those of our partner agencies due to COVID-19, for example an inability to conduct medical assessments. This, combined with the deteriorating security situation in Afghanistan, makes it extremely difficult to not only process visas but uplift people from Kabul.
On 10 July 2021, the UAE announced that it will suspend arriving and transiting passengers from Afghanistan from 2359 UAE time Sunday (11 July 2021) evening. Since 21 June 2021, all Afghan LEE and their families have transited the UAE on their way to Australia. Our Post in the UAE has engaged with local authorities and received assurances that transit passengers from Kabul through Dubai to Australia will be accepted for travel as long as they remain in a specified airside transit lounge.
With the suspension of flights to the UAE, commercial flights will become very limited. The Department may be able to use alternative routes through Turkey but this currently requires a 14-day quarantine period in Turkey. The Department has discussed the possibility of charters from Kabul directly to Australia with DFAT and Defence; however, noting the security situation, this is considered a high risk.
6.87
A further ministerial briefing document from Home Affairs dated 22 July 2021 notes that the main visa processing impediment for the LEE cohort is:
…the completion of the mandatory health examination which relies on services of our contracted provider (IOM) in Kabul. IOM have agreed to extend service hours which will increase the amount of medical appointments that can be completed. The Department continues discussion with IOM on the possible deployment of additional resources.
6.88
This brief from Home Affairs also stated that while Defence and DFAT ‘are managing a significant amount of interest, they do not expect a large volume of enquiries to translate into ministerial certification’.
6.89
The 22 July Ministerial brief noted further that a significant number of LEE visa applicants (328 cases, as at 2 July 2021), had applications refused due to secondary applicants—that is, members of the primary applicant’s family unit—not meeting the requirements of the ‘Family Unit’ test under the migration regulations. Home Affairs elaborated that qualifying family members are limited to:
a spouse or de facto partner;
a dependent child (of the primary applicant and/ or their spouse or de facto partner);
a dependent child of a dependent child (of the primary applicant and/or their spouse or de facto partner); and
a relative of the primary applicant (or their spouse or de facto partner) who does not have a spouse or de facto partner, is usually resident in the primary applicant's household and is dependent on the primary applicant.
The last dot point above means that married parents of a LEE are not a Member of the Family Unit as they clearly do not meet the 'does not have a spouse or de facto partner' requirement.
Other secondary applicants are often refused as they are not found to be dependent on the primary applicant (the LEE).
6.90
DFAT stated to the committee that on 20 July, the government ‘decided further measures to expedite LEE departures, including a plan for facilitated commercial flights if needed’. DFAT arranged a slot at Howard Springs for a charter flight in early September, with a plan for a second if needed. DFAT stated that these measures ‘were expected to exhaust the known and expected LEE and family demand’.
6.91
Home Affairs commented further that during this time, it also worked closely with Defence and DFAT 'to provide information for noncertified LEE about options available under the Humanitarian Program', and engaged with LEE visa holders 'regarding family members whose applications had previously been refused or withdrawn in relation to making an application under the general provisions of the Humanitarian Program'.
6.92
On 22 August 2021, five days into the Australian evacuation operation at HKIA, the government decided to consider emergency subclass 449 visas for all applicants who had applied for the LEE program but were not certified. Defence submitted that these were made available to ‘Afghans with strong connections to the ADF and thereby at greater risk of harm’, including ‘the family of Afghan defence personnel studying at Australian military colleges, those who had studied, and the families of serving ADF living in Afghanistan.
6.93
Mr Hugh Jeffrey, First Assistant Secretary, International Policy, Department of Defence, commented on the steps taken by Defence following the announcements of troop withdrawals and the Australian embassy closure:
[T]here are a number of steps that Defence took in coordination with Home Affairs. Obviously, we finalised most of our [certification] applications. We started to get new ones, so we did increase the number of staff in my division to process incoming applications…they were more on the tenuous [end of the] spectrum, because most of the people that we had direct records for had already applied or had applied to other equivalent LEE programs around the world. But we did re-contact applicants who had not proceeded with applications even though we'd notified them that they were eligible, to say that they needed to advise us quickly if they wished to apply for a visa under the humanitarian program. Of those, we got some replies. With others, we just didn't get any responses. So we were in a process of working with Home Affairs to ensure that we could let them know who we thought would be applying. But it was difficult to get in contact with everybody, simply because some people had already taken up applications for immigration to other countries[.]
6.94
Mr Jeffrey stated that ‘towards the end of 2020 we essentially cleared all of our existing LEE applications’, and added:
It was only when the security situation began to deteriorate that people who had not hitherto applied for a visa decided to do so, so we did have a number of people whom we were processing quickly during that period.
6.95
Defence stated that in the immediate period before and during the evacuation in August 2021, it received over 15,000 emails in approximately 10 days to its email address set up to deal with LEE enquiries. Defence stated:
Defence responded to every genuine enquiry, applicant and correspondent up until August 2021. During the period of the evacuation in August, Defence supplemented its team to manage the increased volume of emails, including across shifts in the evenings and over weekends, and worked closely with DFAT and Home Affairs.
…
During the evacuation, on advice from Home Affairs, Defence recommended some certified LEEs for 449 visas to facilitate their evacuation. This was a quicker way to ensure LEE could be evacuated, so was prioritised over certifying LEE.
6.96
Defence stated that the Afghan LEE program is ongoing, and it is still processing LEE certifications. In information provided in late October 2021, Defence stated that it is ‘currently reviewing 70 case files for possible certification’.
Resourcing allocated to LEE processing
6.97
When asked what resources were added to the Defence LEE team when the Australian embassy in Kabul was closed, the Taliban advanced and Kabul fell, Defence responded:
Additional staff were added to the Defence LEE team in Canberra when interest in the LEE program spiked in August 2021. Several more staff supplemented the LEE team when the evacuation operations began making a total of six staff in the LEE team at the height of the evacuation.
The Embassy closure had no impact on the Defence LEE process. Embassy staff were not involved in the LEE program process. There was no reason to deploy additional staff to Afghanistan to assist Defence LEE.
The LEE program was managed through internal resources and Defence did not seek additional assistance.
6.98
DFAT stated that during the final months of Australia’s engagement in Afghanistan it ‘steadily increased the staff working on DFAT LEE applications for certifications to help process applications for consideration by the Foreign Minister’. DFAT full-time staffing numbers working on LEE visa certification rose from one in May 2021 to five in August 2021. From mid-August 2021, in addition to these five full-time staff, ‘a further 11 staff were rotating on a 24/7 basis to respond to the significant increase in enquiries and applications, both for LEE and 449 visas’.
6.99
When asked what resources were added to the Home Affairs LEE team as the Taliban started capturing more of Afghanistan, Home Affairs responded:
Visa processing for the Afghan LEE visa policy is located in Amman.
Prior to 15 April 2021, Amman Post resources dedicated to processing Afghan LEE visa applications was 0.3 A-based full time equivalent (FTE) plus one FTE locally engaged staff member.
From mid-April to 20 August 2021, Amman resources processing LEE visa applications were increased to one A-based FTE plus two locally engaged delegates and five locally engaged staff members – an increase of 6.7 FTE.
In addition, Canberra program management resources dedicated to Afghan LEE visa applications increased from 0.3 FTE prior to 15 April 2021, to 1.5 FTE from 15 April to 20 August 2021.
In total, resources for processing LEE visa applications increased from 1.6 FTE to 9.5 FTE for the above period.
Defence LEE records and certification processes
6.100
Defence, DFAT and Home Affairs were questioned at a public hearing about what records the Australian Government holds in relation to Afghans who worked with Australian forces during Australia’s engagement in Afghanistan, including whether the government holds a ‘master list’ of those who worked with Australia.
6.101
Mr Jeffrey stated that Defence ‘does not have a master list, and we don't think creating one would be feasible’. Representatives of DFAT and Home Affairs also confirmed that neither department holds a master list of everyone with whom Australia worked in Afghanistan.
6.102
Mr Jeffrey spoke further to the data that Defence holds and explained why this does not encompass everyone who may be eligible for the LEE program:
Defence certainly has lists of those types of people that we directly worked with in a direct employment relationship: for example, those interpreters that worked for the ADF directly on the ground in Uruzgan and elsewhere in Afghanistan, and staff who were working with the Australians at Camp Qargha. But not all people who worked for us in Afghanistan were formally employed by the ADF, so we won't necessarily have specific numbers and identities.
… But, because we take a broad definition in the criteria, it doesn't have to be a direct employee relationship. It can be an employee relationship through a third party, for example, like a contractor. We don't think we could create a master list, and we look at each application on its merits to see if it meets the criteria under the LEE program to determine whether or not we would certify that individual for an application into the humanitarian intake under the Australian government's legislation.
6.103
Mr Jeffrey commented further on the way Defence applied the eligibility criteria for the LEE program at an Estimates committee hearing on 27 October 2021:
I will tell you how Defence did apply the criteria under the LEE program and how we do apply the criteria. Essentially, a service has to be rendered. An example could be that the employee relationship is actually with another entity. For example, in [Uruzgan] Province we had interpreters who were employed by Dutch forces, but they essentially worked to Australian forces in many instances, so we would regard them as employees.
6.104
Mr Jeffrey stated that while Defence could compile a list of people that it holds direct employment records for, this is ‘not a useful statistic to encompass those people who might be eligible under the LEE program, because, as you can appreciate, employment conditions in Afghanistan are very fluid’. Mr Jeffrey stated that because of this, ‘we have to look at each application on its merits and interrogate whether or not those claims in the applications would allow us to certify them as locally engaged employees’.
6.105
Commenting on the process undertaken by Defence in ascertaining claims to certify a LEE application, Mr Jeffrey stated:
We look at a whole range of criteria. We've got criteria under the legislation which we need to ensure are met. But at the same time, to verify the claims in the application, we need to see if we have any records. If we don't have any records, we need to consult people on the ground at the time to see if they have a recollection. Do they know? Did they work with this person or this contractor or this company? Does this type of work sound like something that we were doing? We talk to the post and we talk to other government agencies. So it's a process of trying to ensure that we can substantiate the claims in the application.
6.106
Defence officials also stated that the LEE certifications being processed towards the end of Australia’s withdrawal from Afghanistan were generally less clear-cut than the earlier applications. Mr Jeffrey commented:
[The] great majority of those who have clearly worked with us, who are known to the Australian Defence Force, have left the country under either our LEE program or a program of other contributing countries. So, when we got towards the latter end of this year, most of the candidates we were looking at were on the marginal side, with claims that were more difficult to verify.
6.107
Mr Jeffrey noted that changes in the security situation in Afghanistan led Defence to change their assessments for LEE who had previously had certification claims rejected:
One of the key criteria is not only whether they meet the criteria in terms of being an employee but whether they are at serious risk to their security. People we had assessed in 2015 were maybe people who worked for Defence…but we could have judged then that they were not at risk. As the Afghan government began to look increasingly unstable, and the Taliban were making increasing gains, we reconsidered the cohort to determine those we had rejected on the basis that they were not at risk—to take that criteria out and say, 'We now assume that everyone is at risk.' We reviewed those we had rejected on that basis, and then recertified some of those individuals—not all those individuals we were able to get in contact with; many others had left for other programs with other ISAF contributing countries. That's one example of criteria change. We didn't change the criteria in the legislation; we just changed how we assessed people.
Criticisms of the LEE program from submitters and witnesses
6.108
Several submitters and witnesses raised significant concerns with the way Defence, DFAT and Home Affairs have managed aspects of the LEE program.
6.109
Forsaken Fighters Australia Inc., an organisation advocating for Afghan LEE founded by ADF veteran Mr Jason Scanes, submitted:
The LEE visa program was designed to ensure that those individuals that assisted the Australian Government, in pursuit of our national interest at great personal risk, would be afforded protection from any reprisals as a result of their association with our Defence Forces. The failure of Government to review the policy and draw on feedback to address deficiencies to improve the program has unnecessarily placed vulnerable people at an increased risk and left many to fend for themselves in Afghanistan. From contractual failures, limited Government oversight and bungled vetting processes, awash with conflicts of interests, private companies and hundreds of millions of dollars, the people adversely affected are the people who facilitated missions and assisted coalition troops. With decisions seemingly lacking any logical reasoning, it appears that Government departments, operating in isolation, have failed to engage with all the relevant sources and information to make informed decisions and address deficiencies in policy. Australia has left interpreters behind in Afghanistan.
6.110
GAP Veteran and Legal Services (GAPLS) was strongly critical of the LEE program, summarising its concerns as follows:
The Afghan LEE Visa Programs managed by [Defence] and DFAT, respectively, have proven to be a manifest failure. Timelines for the processing of applications for LEE clearance, i.e., clearance to then apply for a visa, have been objectively excessive. Empirical evidence shows cases of up to three years between the submission of an application and clearance or rejection. Often no acknowledgement of receipt of applications was provided by the [Defence] or DFAT LEE teams. Thus, no anticipated timelines were provided.
There was no apparent consistency in the decisions to clear LEE applicants for subsequent visa applications or reject them, thus denying many the opportunity to apply for a visa under the LEE program. The mass rejections process taken contemporaneously with the Taliban advancing on Kabul…serves to demonstrate the lack of any sense of urgency in this process until it was arguably too late. As well, [there was a] lack of any consistency in the clearance process…
Number of LEE remaining at risk in Afghanistan
6.111
In addition to figures provided by government departments, the committee also received other estimates on the number of certified LEE and LEE applicants remaining in Afghanistan. Forsaken Fighters Australia submitted:
Forsaken Fighters Australia Inc. have a detailed list of LEEs and family members who remain in Afghanistan, correct as of 05 October 2021. The list consists of 198 LEE with valid Australian visas some XB201, most with 449 and over 450 who remain ‘at risk’ and have not received any form of visa. Many of those individuals have applied to the email and have not received a reply. Some have received a notice advising ‘given your links with Australia, whilst you have not been certified as a Locally engaged Employee you will be given priority for one of the 3000 humanitarian positions’. They remain without a visa today. Many have fled their homes, navigated Taliban check points, endured arduous conditions at the Hamid Karzai International Airport (HKIA) and been unnecessarily exposed to additional threats, only to be left behind.
Processing timeframes for LEE applications
6.112
Forsaken Fighters Australia submitted that the processing of LEE applications ‘has been peppered with lengthy delays’:
Many applications have taken years to process. I am confident that there could be no logical reason or justification from Home Affairs or Immigration as to why they have taken years to process applications for vulnerable people, deemed ‘at risk’ because they helped Australians. That should have been an indicator that the LEE program was not functioning as intended and a review was desperately needed. Individuals who were/have been certified by the Defence Minister ‘as at risk’ should have been a priority for Government to process. Instead, many have been left to wait for years, in fear and at risk because they supported our troops.
6.113
When questioned about reports that Defence LEE certification has in some cases taken years to complete, Defence provided the following information:
Certification could be an extended process for individuals who applied long after ceasing employment with the ADF and who lived in remote areas of Afghanistan. Defence determined eligibility on whether an individual was in an “employee like relationship” rather than whether they were formally employed. Accordingly, Defence would need to gather evidence of the nature of their relationship. Similarly, if an exceptional circumstances test was being applied to an application, Defence had to gather and assess evidence of the claimed circumstances. Applicants were able to appeal an ineligible certification.
No single application process took multiple years. However some individuals did continue to reapply over a period of several years. Following certification Home Affairs commenced the visa assessment process and this process could take an extensive period of time for some applicants.
6.114
When asked about the average processing time for DFAT LEE certification, DFAT responded:
Each application is treated on a case-by-case basis. Processing times are determined by the complexity of the case, the completeness of the application, and responsiveness of applicants to requests for additional information.
Eligibility of security personnel
6.115
As noted in Chapter 5, significant issues have arisen in relation to security personnel associated with the Australian embassy in Kabul, with some gaining visas under the LEE program and many others unsuccessful in attempts to access the program and leave Afghanistan.
6.116
It is unclear exactly how many security personnel associated with the Australian embassy in Kabul have applied for humanitarian visas with Australia (which could include those rejected for LEE certification). When asked about this number, Home Affairs was unable to provide an overall figure:
Home Affairs does not record the specific roles and relationships that individuals may have had with the Australian government.
If an individual is certified by the relevant Minister to be considered under the LEE program, Home Affairs process the visa application against the applicable criteria. The assessment process does not record the nature of an individual’s employment link to the Australian government.
If an individual applies under the broader Humanitarian Program, the same application form is completed and the applicant provides their employment history. However, that information is for an assessing officer to consider, the details are not recorded in a reportable field in a visa processing system.
DFAT evidence on eligibility issues
6.117
DFAT informed the committee that between 24 May 2021 (when the closure of the Australian Embassy in Kabul was announced), and 26 August 2021 (when the evacuations concluded), 160 private security company employees applied for certification as Locally Engaged Employees of DFAT. Of that number, only 12 were certified as eligible for the LEE program. DFAT stated that those unsuccessful in their certification applications ‘were prioritised for consideration by Home Affairs under a separate humanitarian visa category in a process streamlined in the period before and during the military evacuation of Kabul’. DFAT noted further that since 26 August 2021, more than 40 private security company employees have applied for certification under the DFAT LEE program.
6.118
Mr Geoff Tooth, Assistant Secretary, Afghanistan and Regional Branch, and former Head of Mission Kabul, DFAT, commented on the eligibility assessments applied by DFAT and why some security personnel were deemed ineligible:
We regard 'employed with' as a test, whether the individual was fully integrated with the Australian agency personnel, whether they were identified directly with our mission and whether their connection was substantial and sustained.
6.119
Mr Tooth stated that some embassy guards did not meet this test, as they ‘weren't fully integrated with the embassy and the operation of the embassy’, and elaborated further:
With the way the embassy was constructed in terms of its security overlay, there was inner security, a second round of security and an outer ring of security. Many of the guards were in that outer ring and a wider part of the green zone of the security environment in Kabul.
6.120
Mr Tooth conceded that these guards were paid under DFAT’s contract with GardaWorld, a contracted security company who operated at Australia’s direction.
6.121
DFAT officials provided some explanation and context for the layers of security arrangements around the Australian embassy in Kabul, and how this affected LEE claims. Ms Minoli Perera, Chief Security Officer, DFAT, clarified that close personal security services for the Australian Ambassador to Afghanistan and other embassy staff were provided not by Afghan nationals, but by either Australian nationals or Five Eyes (predominantly UK) contractors, due to their specialised training. This was also the usual arrangement for drivers of the Ambassadors and diplomatic vehicles.
6.122
The ‘inner cordon’ of security services for security inside the Australian embassy compound was undertaken by Indian and Nepalese nationals through Australia’s contracted security provider.
6.123
Mr Gary Cowan, First Assistant Secretary, North and South Asia Division, DFAT, continued that outside the embassy, there were three layers of security: an inner layer, covering the pedestrian entrances to the embassy, which was staffed by Australian or third-country security personnel; beyond that, vehicular checkpoints; and beyond that again, checkpoints further out—for instance, entry points into the ‘semi-secure zone’.
6.124
Mr Cowan described DFAT’s approach to LEE certification requests, given this layered arrangement:
There was some shifting of roles between different parts of that. I think it's fair to say that, in giving advice to our minister, we were very cognisant of what role an individual who put themselves forward for certification had played: what was the degree of integration with the mission; what was the visibility; how sustained and substantial was that; and could they really be described as employees of Australia? As you say, as you go further out that connection becomes less, because some of those checkpoints are not necessarily specific to Australia; there was some movement of roles. We were very careful to look at what role people had played and then draw assessments from that in the advice we put to the minister.
[I]t's important to recognise, with a legislative instrument like the one we've got and the series of factors that have to be worked through, that it's very much a case-by-case set of judgements on a particular set of circumstances. There may well have been individuals that had moved to different roles and had different elements to play in that security fabric, and each of those will be dealt with on their merits.
6.126
Mr Cowan noted that the ‘exceptional circumstances’ provision could enable individuals to apply, even if they otherwise would be ineligible because of the exclusion relating to private security contractors.
6.127
When asked whether the IDC that was set up in May 2021 to examine LEE issues gave consideration to eligibility issues for embassy guards and other embassy staff, DFAT stated:
The inter-departmental committee did not discuss the eligibility of those claiming their employer was the Australian Embassy in Kabul. Pre-existing eligibility criteria and exclusions under visa instrument IMMI 12/127 continued to be applied, including grounds for the exercise of Ministerial discretion under the instrument’s exceptional circumstances provisions.
6.128
When questioned about whether DFAT took a stricter and more legalistic approach to certifying LEEs than Defence, given DFAT’s low acceptance rates of certification applications for security contractors, Mr Cowan stated:
The approach that Department of Foreign Affairs and Trade took was under the instrument. Contractors were not ineligible for certification because they were contractors, just because they weren't directly employed. There isn't a policy against certifying contractors.
…
This year, of the 82 individuals whom the foreign minister has certified, 54 of them have been contractors. We have applied the test that's set out in the legislative instrument. We haven't excluded contractors because they're contractors. We have certified people who could effectively be regarded as employees of Australia, those who are identified with our mission and who worked with our mission in a sustained and substantial way. So many contractors this year have been certified by the foreign minister.
Evidence concerning visa rejections for at risk staff associated with the embassy
6.129
GAP Veteran and Legal Services (GAPLS) provided extensive evidence about the treatment of embassy security staff seeking access to the LEE program. It submitted that more than 200 individuals who worked at the Australian embassy as security guards and contractors were put at direct risk following the closure of the embassy, with the number of affected individuals rising to at least 1,000 inclusive of the families of these workers.
6.130
GAPLS stated that a large number of these individuals were issued mass LEE certification rejection letters after the Australian evacuation operation had already commenced:
On 21 August 2021, dozens of individuals from the Embassy Group received mass LEE certification rejection letters [via] a standard templated letter with the same group file number. This, even though all of the applications were submitted by individuals and not as a group. The mass rejection letters lacked any consistency. Dozens of rejection letters were sent randomly to the Embassy Group, and many of those officers had impeccable documentation.
6.131
GAPLS asserted that those rejected included ‘one of the most senior Australian Embassy Security Guards’ with eleven years of service:
The wording in the letter sent to him on the eve of the evacuation was clinical and insensitive. There was no articulation or explanation as to why his application was rejected. Simply that it had been… The rejection letter did not give any consideration to the fact that as a Senior Embassy Security Guard, [name redacted] was seen by Taliban to be 'traitorous' because he worked for the Australian Embassy and its Government and for the benefit of the Afghan President Ghani.
6.132
GAPLS noted that several of those rejected included persons of Hazara ethnicity and Shia Muslims, who were particularly at risk of Taliban reprisals, and stated that ‘these elements and by the nature of their employment alone should have guaranteed the Embassy group priority for evacuation’. GAPLS commented further:
What is most disturbing is that the Australian Government knew and reported on the risks the Embassy group and their families face on a daily basis as a result of their employment. They and their families are frequently and deliberately targeted for harm. The Taliban Government publicly and repeatedly broadcasted their intentions (and still do) to seek retribution against anyone who worked for the Coalition forces and Foreign Governments, including the Australian Embassy Security Guards, Contractors and their families.
6.133
GAPLS noted that even once some of these individuals were ultimately invited to accept a subclass 449 visa during the final days of the Australian evacuation operation, there were significant issues with individuals not being able to complete and lodge relevant documentation in the manner requested, and an inability to access appropriate advice on how to do so.
Suggested changes to the LEE program
6.134
The Law Council submitted that, given the issues encountered with eligibility restrictions in the Afghan LEE program, the relevant legislative instrument outlining eligibility criteria (IMMI 12/127) and the Migration regulations should be amended to allow greater flexibility:
The Law Council recommends that consideration be given to amending the legislative instrument which prescribes this ‘class’ of persons, IMMI 12/127, to ensure that all those who have assisted Australia are eligible for protection.
6.135
The Law Council also recommended that a greater range of family members should be enabled to apply as secondary applicants in relation to a LEE visa application:
[T]he Law Council recommends that the Department consider facilitating amendments to the Migration Regulations 1994 (Cth) (Migration Regulations) to enable siblings and non-dependent parents of locally engaged employees granted visas to be granted those visas as secondary applicants.
Currently, only a spouse, dependent child, dependent child of a dependent child, or dependent relative of a primary applicant may be granted those visas as a secondary applicant. Practitioners have experience of situations where the siblings and parents of previous grantees of these visas, who were not granted a visa as a secondary applicant, faced grave danger in Afghanistan for reasons related to the work their family member performed for Australian agencies (for example, as an interpreter).
6.136
GAPLS submitted that the ‘reception and processing of LEE visa certifications and subsequent visa applications must be improved’, as follows:
The Afghanistan visa and evacuation operation evidenced inefficiencies, a lack of situational awareness, inordinate delays, and a lack of understanding of the processes involved on the part of respective departments. Industry must be engaged at an early stage in this process such that the following initiatives are appropriate:
• A preferred supplier panel of Migration Institute of Australia (MIA) members only to expedite visas, [with the] Department of Home Affairs to facilitate an 'Approach the Market' to a key group of MIA members; and
• Department of Home Affairs to have a preferred supplier panel of MIA members to regulate costs incurred by individuals[.]
6.137
Forsaken Fighters Australia recommended that a ‘review of the LEE Visa policy is undertaken without delay’, addressing the following points:
counterintelligence screening should form one piece of a mosaic for visa approval/denial, not the whole picture;
Defence Minister certification should be the lever to issue or has power conferred to issue 449 visas to expedite people deemed at risk from danger;
Greater communication between departments—where Defence have certified an applicant, but they have not applied for a visa within 30 days, Defence should make contact again with applicant;
Embed Immigration officials or teams to assist in the compiling of applications and liaising with external groups/organisations;
Australia develops future policy on how to manage, register and track Local Nationals who provide assistance in areas of conflict and instability; and
Greater transparency with applicants and veterans (establishing a point of contact within Immigration).