DETERMINING REFUGEE STATUS

In order to access protection, asylum seekers are required to be assessed to determine their status as a refugee. The process provides recognition of an individual’s status as a refugee, and allows for the entitlements and rights afforded to this refugee status. In Australia, obtaining refugee status provides the avenue for the issuing of a protection visa.

The majority of people who are provided protection by Australia are processed through the Humanitarian Program and its respective onshore and offshore programs. Those who arrive in Australia without a valid visa follow one of a number of processes depending on when they arrived.

The offshore program processes people who have been given refugee status by the United Nations High Commissioner for Refugees (UNHCR) and people who have been sponsored by Australian citizens or permanent residents or Australian-based community organisations. The onshore program processes people who apply once they are in Australia.

Different processes are followed for people who arrive in Australia with a valid visa and people who arrive without a valid visa.

Arriving in Australia with a valid visa

People who arrive in Australia with a valid visa, whether it be a tourist or working visa, can submit a written application for refugee status with the Australian Department of Immigration and Border Protection.

The application is then assessed by an officer of the department to establish whether the asylum seeker is entitled to protection. If the application is accepted, the person is granted a permanent protection visa. If the application is rejected the person can apply to have the decision reviewed by the Administrative Appeals Tribunal (formerly Refugee Review Tribunal).

Administrative Appeals Tribunal

If an application for refugee status is rejected, the asylum seeker has the option to lodge an application for a review of this decision with the Administrative Appeals Tribunal (AAT). This is in circumstances where there has either been a refusal to grant a protection visa or cancellation of a protection visa.

The AAT is an independent government statutory body with its members appointed by the Governor-General. The AAT reviews decisions made by officers of the Department of Immigration and Border Protection.

AAT members review the department’s primary decisions, applying the same criteria. The AAT is a merits review body which makes decisions within the same legislative framework as the primary decision maker, in this case the Department of Immigration and Border Protection.

If the AAT is unable to make a decision favourable to the applicant asylum seeker on the written evidence available, it must give the applicant the opportunity for a hearing. A fee must be paid by the applicant if the AAT affirms the original refusal decision.

There are two possible outcomes of the review: the AAT overturns the original decision and grants refugee status or the AAT upholds the original decision.

If the AAT upholds the original decision, the asylum seeker can apply to the Federal Circuit Court of Australia for judicial review of the AAT’s decision to assess whether the AAT made a jurisdictional error.

The Minister for Immigration and Border Protection has powers under the Migration Act to substitute a decision made by the AAT with a decision that is more favourable to the applicant.

The minister has the power to make decisions on individual cases, if all other avenues of review and appeal have been exhausted. In this case, an asylum seeker may seek the personal intervention of the Minister for Immigration. The minister may change the decision of a tribunal where it is in the public interest to do so. The minister rarely intervenes.

Arriving in Australia without a valid visa

People who arrive in Australia without authorisation or a valid visa have usually come by boat and are deemed by the government to be Illegal Maritime Arrivals (IMAs).  They are subject to different processes to people who arrive with valid visas and are eligible for different visas and support.

People who arrive on or after 13 August 2012 without a valid visa are prevented, by legislation, from applying for a visa until the Department of Immigration and Border Protection is ready to process their application. They are eligible for a Temporary Protection visa (TVP) or a Safe Haven Enterprise visa (SHEV). They are not eligible for a permanent Protection visa. Any valid visa application for permanent protection lodged before 15 December 2014 by a person who is regarded as an “illegal or unauthorised arrival”, will be taken to be an application for a temporary protection visa.

People who arrived by boat between 13 August 2012 and 1 January 2014 have their applications processed through the Fast Track Assessment process. This process was established as a mechanism for the Australian Government to quickly process the backlog of protection claims, with approximately 31,000 people waiting to make an application for protection.

For those who are detained in offshore processing centres, the status determination process is guided by local law in Papua New Guinea or Nauru.

Fast track assessment process

A fast-track assessment process was enacted in the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Act 2014. As it’s name suggests, this process is intended speed up protection claim assessments at the review stage.

A fast-track applicant is defined in the legislation as someone who:

  • Is an unauthorised maritime arrival (arrived without a valid visa) who arrived between 13 August 2012 and 1 January 2014

  • has not been taken to a regional processing country (Nauru or Papua New Guinea)

  • the Minister for Immigration and Border Protection has allowed to make a valid protection visa application, and

  • has lodged a valid protection visa application on or after 19 April 2015.

Under this fast track assessment process, applicants do not have access to the Refugee Review Tribunal. Applicants found not to engage Australia’s protection obligations through this process will be automatically referred for a limited form of review by the Immigration Assessment Authority (IAA).

Through this limited review process, the IAA can only utilise the information available to the Department when undertaking the first assessment process (on the papers review). In most cases, new information cannot be introduced, unless under exceptional circumstances. 

Concern has been raised that the tight timeframes for this assessment process increase the risk of error. There is also concern about the limited capacity to provide robust avenues for review of department decisions. Without this opportunity there may be a higher risk that people in need of protection will be returned to face significant harm.

Legal support to apply for protection

The Immigration Advice and Application Assistance Scheme is available to support people to apply for protection. Under the scheme registered migration agents assist eligible applicants who have arrived lawfully in Australia and are considered ‘disadvantaged’ against a range of criteria.

From 31 March 2014, the Australian Government has made this scheme unavailable to people who arrived without authorisation or a valid visa. Instead of legal assistance, asylum seekers are able to access online information and resources about the application and assessment process.

Enhanced screening process

The ‘enhanced screening process’ is a brief interview, undertaken by Department of Immigration and Border Protection officials, and determines whether a person is either ‘screened in’ and able to progress to apply for refugee status, or ‘screened out’, and returned to where they have come from.

The enhanced screening process was introduced in October 2012 by the previous Labor Government, specifically to apply to Sri Lankan asylum seekers arriving by boat. Since then the process has been expanded to screen groups from other nationalities.

Updated 2 August 2015

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