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How Australia determines if a person is a refugee

Refugee status determination

Countries use different procedures to decide whether someone is a refugee. This is often called ‘refugee status determination’ (RSD).

In many developing countries, it is the office of the United Nations High Commissioner for Refugees (UNHCR) that makes the decision. In most Western countries, governments have set up their own systems for determining whether a person is a refugee.

Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR) .

Since 1993, Australia‘s procedure involves four main steps:

  • a person applies for protection
  • the Department of Immigration (now Home Affairs) makes the first (the ‘primary’) decision on an application
  • this decision is reviewed by an independent tribunal that can look at the facts again
  • the courts can review whether these decisions were lawfully made (judicial review).

There have been many changes to this refugee status determination procedure over time. Since 2001, the procedures for those who arrive by boat has been different from those who arrive by plane with a valid visa. Since December 2014, very different procedures apply to those who arrived by boat on or after 13 August 2012.

Those who came by boat can’t apply until invited

Since 2001, not everyone who seeks asylum in Australia can apply for refugee status. In 2001, laws were passed that meant anyone who arrived in an ‘offshore entry place’ – such as Christmas Island – did not have a right to apply for asylum. 

Instead, they could only apply if the Minister has personally decided they could. This is called ‘lifting the bar’. This decision cannot be reviewed.

In 2014, this changed again. Now, even if a person made it to mainland Australia by boat, they could no longer apply for asylum unless the Minister allowed it. 

Migration Act 1958 s 46A

For some people, these laws have also meant that they are forced to live in Australia unlawfully. For some people, the Minister must ‘lift the bar’ before their bridging visas can be renewed. This can lead to delays as each decision must be made by the Minister.

Statistics on people seeking asylum in the community

These visas give them the right to live in the community. Without a visa, a person has no right to live in the community or to access basic services.

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