AUSTRALIA'S REFUGEE PROGRAM

Facts + Stats

REFUGEE STATUS DETERMINATION

The process by which an asylum seeker applies for refugee status varies from country to country. In many developing countries, it is the office of the United Nations High Commissioner for Refugees (UNHCR) that makes the determination. In most western countries, governments have set up structures, either administrative or judicial, for examining claims.

Since 1993 Australia has had a two stage administrative determination procedure:

Primary Stage

An asylum seeker lodges an application for refugee status with the Department of Immigration and Citizenship (DIAC).

The written application is then assessed by an officer of the Department to establish whether the person's claims are such as to fit the criteria for the grant of refugee status. Until recently it was the practice that applicants would be interviewed as a matter of routine. In recent months both positive and negative decisions have been made without interview.

Applications can be received from individuals or from family groups. In the case of the latter, the claims of each member of the family should be examined. It is quite possible that the male head of household may not be a refugee but the wife or any of the children may be. If one member of the family is determined to be a refugee, the whole family is granted refugee status.

There are only two possible outcomes from the primary stage:

Review Stage

If a claim is rejected at the primary stage, the asylum seeker then has the option to lodge an application for a review of this decision. Approximately 75% of rejected applicants take advantage of this option.

The body responsible for reviewing applications is the Refugee Review Tribunal (RRT). The RRT is an independent Commonwealth statutory body whose Members are appointed by the Governor General. It is their task to review the DIAC primary decisions, applying exactly the same criteria: i.e. is the person a refugee according to the United Nations definition?

Unless a Member is minded to accept an application on the papers alone, all applicants to the RRT receive an oral hearing. The hearing is formal but non-adversarial, with every effort being made to ensure that the applicant is comfortable to present all aspects of their claims.

It is considered vital that Australia retains an independent merits review in refugee status determination. Such a system guarantees equality and fairness before the law and allows asylum seekers to present their full stories confident that government policy towards their country of origin will not influence the decision makers.

There are two possible outcomes from the review stage:

In the event of the claim being rejected by the RRT, it is expected that the applicant will leave the country. There are, however, two other avenues that could be explored:

i. Humanitarian Status

Claims that are rejected by the RRT are sent back to the Department of Immigration where they are reviewed by the original case manager. If it is considered that there may be compelling humanitarian reasons why an applicant should not be returned to their country of origin, the case is referred to the Minister for Immigration who has non-compellable discretionary powers to grant residency on humanitarian grounds. Failed refugee status applicants can also make a direct approach to the Minister seeking his consideration of their case.

ii. Judicial Review

Applicants who have been rejected by the RRT can, in certain circumstances, lodge an appeal to the Federal Court. The Court is not empowered to look at the merits of the claim (ie whether or not they are refugees). It is the role of the Court to consider whether the determination was conducted in accordance with the law. If the Court finds in favour of the applicant, the case is referred back to the RRT for reconsideration. Reconsideration does not automatically mean that the applicant is granted refugee status.

Other facts + stats:
• Response to World Refugee Situation
• Myths about refugees

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