Excised offshore places

Excised offshore places are areas under Australian jurisdiction and authority which are excised from Australia's migration zone. They include Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands.

Under the Migration Act 1958, a non-citizen who first enters Australia at an excised offshore place without legal authorisation is unable to submit a valid visa application unless the Minister for Immigration makes a personal intervention into the case. This process of ministerial intervention is non-compellable and non-reviewable.

Offshore processing of asylum claims

Asylum seekers in excised offshore places are barred from the refugee status determination system that applies on the Australian mainland. Instead, they undergo a non-statutory process called a Protection Obligations Determination (POD). Unlike the procedure which applies on the Australian mainlaind, the POD process is not bound by the Migration Act and is instead governed by guidelines which are not legally binding.  

An initial assessment will be conducted by an officer from the Department of Immigration and Citizenship to determine whether the asylum seeker is owed protection. If the assessment is successful, a recommendation will be made to the Minister to enable a Protection Visa application to be lodged. If the assessment is unsuccessful, the asylum seeker – instead of undergoing a full status assessment process – will be “fast tracked” to an Independent Protection Assessment.

Failed applicants will have a right to appeal to the Federal Magistrates Court, Federal Court and finally the High Court in situations where an error in legal reasoning has occurred or where procedural fairness has been denied. They will also have the opportunity to respond to information that may be detrimental to their asylum claim. They do not, however, have access to the Refugee Review Tribunal.

2010 High Court ruling

Prior to 2011, asylum seekers in excised places underwent a non-statutory status determination process known as Refugee Status Assessment (RSA). The only appeals process available to unsuccessful applicants was a non-transparent independent merits review (IMR), under which an unfavourable RSA outcome can only be lifted at the discretion of the Minister. They had no access to the Refugee Review Tribunal and very limited access to the Australian courts.

In November 2010, the High Court of Australia ruled that two Sri Lankan asylum seekers were denied procedural fairness in the review of their claims under the processing arrangements which apply to asylum seekers who enter Australia through excised offshore territory. In a unanimous decision, the High Court ruled that any review of a refugee status assessment must be bound by the provisions of the Migration Act and the decisions of Australian courts.

As a result of the decision, both the mainland and offshore status determination processes are now subject to judicial review in situations where an error in legal reasoning has occurred or where procedural fairness has been denied. However, asylum seekers arriving in excised zones still cannot submit a Protection Visa application except at the Minister's discretion and continue to lack access to the Refugee Review Tribunal and refugee status determination process that applies on the mainland.