RSD and legal advice
Refugee Status Determination (RSD) and legal advice
Under Australian law, a person seeking asylum who arrives by boat cannot apply for any visa, including a protection visa, unless the Minister for Immigration personally decides to ‘lift the bar’. This policy previously applied only to people who arrived on outlying territories of Australia (such as Christmas Island) excised from the migration zone, but since 2013 it has been extended to mainland Australia. This means any person seeking asylum by boat cannot apply for protection except at the discretion of the Minister for Immigration.
Delays in refugee determination and pressure to apply
How Australia determines if a person is a refugee
From August 2012 until 2015, the government suspended refugee status determination (RSD) for people who arrived by boat after 13 August 2012. While the Government began allowing this group to apply for a protection visa in 2015, it only finished ‘lifting the bar’ for all groups in late 2016, and also removed most access to government-funded legal advice (see below). This resulted in long waiting lists (of up to a year) to access legal advice.
At the end of 2016, the then Department of Immigration started sending warning letters to people who had not yet applied for protection, including those on waiting lists. People were given 60 days to apply (with a possibility of a 30-day extension) and were told that, if they did not, they would lose any welfare payments, their bridging visas and the right to apply for protection.
On 21 May 2017, the Minister for Immigration announced that if people did not apply by 1 October 2017, they would be barred from applying for any visa in Australia and would be returned to their home countries. Legal centres, pro bono lawyers and volunteers across Australia largely succeeded in meeting this arbitrary and extremely tight deadline, with all but 71 of the thousands still waiting applying by the deadline. As of March 2018, the Department of Immigration had only managed to decide about half of the cases.
The ‘fast track’ process
Australia introduced a ‘fast track’ RSD process for people who arrived by boat between 13 August 2012 and 1 January 2014, and were not taken to Nauru or Papua New Guinea. If their claims are rejected by the Department, they cannot have their claims reviewed by an independent merits review tribunal. Instead, the decisions will be referred to the Immigration Assessment Authority (IAA), a body established in 2015, which provides a far more limited form of review.
In this review, people seeking asylum generally will not be interviewed and cannot provide new information other than in exceptional circumstances. If an applicant is specified as an “excluded fast track review applicant”, they will be excluded from any form of merits review under the fast track system. Fast track applicants will usually have access to judicial review. However, court hearings can be months or years away, with some people now receiving court dates in 2021. The Minister for Immigration also has the power to issue a ‘conclusive certificate’ which prevents an initial decision from being changed or reviewed.
Other changes to RSD and how Australia defines ‘refugee’
The Australian Government has made other changes to the processes for assessing asylum claims. These include: shifting the burden of proof to people seeking asylum; removing the references to the Refugee Convention from Australia’s migration legislation; and removing the reasonableness test from consideration of relocation options for people facing persecution. Further, the Government has expanded the use of adverse credibility findings, and grounds for denying protection to people who provide false identity documents.
Our brief on the Legacy Caseload Act
Removal of government-funded legal advice
Most people seeking asylum who arrive without valid visas are no longer eligible for government-funded legal advice. Those who arrive by plane with a valid visa and a small percentage of highly vulnerable people who came by boat are eligible for free legal advice at the primary stage of decision-making, but not at the merits review stage.
Amalgamation of review tribunals into the Administrative Appeals Tribunal
On 1 July 2015, the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) merged with the Administrative Appeals Tribunal (AAT). The amalgamated AAT is responsible for the independent review of a wide range of decisions made by the Australian Government, including the Department. Decisions that could be reviewed by the former MRT or RRT, or the cases referred to these review bodies before 1 July 2015 for which a decision was not made by that date, are now reviewed by the AAT’s Migration and Refugee Division.