Addressing backlog in refugee cases is key to ensuring integrity in our migration system

Asher Hirsch and Daniel Ghezelbash

December 2022

The recent investigation by The Age, The Sydney Morning Herald and 60 Minutes into visa scams and human trafficking has shone a light on the issues caused by delays in processing asylum claims. These procedures are used to determine whether a person seeking asylum meets the requirements to be issued a protection visa.

Widespread delays in processing asylum claims for those who arrive by air have created a loophole in our migration system, allowing those without genuine fears of persecution to apply for asylum and remain in the country for up to eight years while their claim is being considered. Investing more resources into speeding up processing times is essential to maintaining the integrity of Australia’s asylum system.

Refugee assessments must be fair and robust. These decisions may very well mean life or death for a refugee. And all asylum claimants must be afforded with due consideration and fair processing. At the same time, a backlogged and dysfunctional system serves no one.

Understanding the backlog

It is factually incorrect, as The Sydney Morning Herald has reported, to say that “visa scams have brought up to 100,000 workers into Australia using false claims”, especially when the vast majority of these applicants are yet to have their claims for refugee protection assessed or reviewed. 

Australian Government statistics reveal that 70% of the 96,371 people in the onshore processing process are waiting for a decision from Home Affairs, Administrative Appeals Tribunal (AAT) or federal courts.

Home Affairs onshore protection statistics for September 2022 show that 26,315 people are waiting for an initial decision on asylum claims. At the current rate, it would take the Department over two years to process these claims.

Those whose refugee claims are rejected by the Department can appeal to the Administrative Appeals Tribunal (AAT), which has seen its refugee caseload balloon over the past few years.

There are currently 37,830 refugee cases before the AAT. Last financial year, the AAT made a decision on only 5,819 cases, while it received 10,743 new appeals. At the current rate, it would take the AAT over six years to assess the current backlog – while new claims continue to come in faster than the AAT can hear them.

If an applicant believes there has been a legal error in the AAT decision, they can appeal to the federal courts. Responses to questions in Senate Estimates reveal that, in August 2021, 3,523 people were waiting for courts to review their cases.

In total, 67,700 people are waiting for decisions on their status and only 28,700 are still in Australia not appealing a visa refusal.

The combined backlogs at the Department of Home Affairs and the Administrative Appeals Tribunal (AAT) has encouraged those who do not have legitimate refugee claims to lodge asylum applications, as they can stay in Australia for years while their application slowly passes through the system. If refugee applications are considered in a well-resourced, prompt and orderly system, there would be no incentive for those who are not refugees to lodge an asylum application.

For those people with legitimate claims for protection, these long delays create significant stress and anxiety. Many people seeking asylum are denied work rights, and only a handful of them have access to income support, which means that thousands of asylum seekers are living in destitution and relying on the goodwill of under-resourced charities.

Fixing the system

The solution is simple: increase and train staff in the Department of Home Affairs and increase funding to the AAT to appoint additional members to hear asylum appeals. Attorney General Mark Dreyfus also needs to act on his pledge to fix the mess of politicised appointments to the AAT, which have seen those without necessary expertise appointed to the AAT based on their political affiliations.

These recommendations are not new – indeed the same recommendations were made by Hon Ian Callinan AC QC in a 2019 review of the AAT, and also by a Labor-led parliamentary committee in the previous parliament.

While Labor previously promised to “streamline processing of asylum claims to give people prompt and fair assessment of their asylum claims”, the government hasn’t yet implemented any of their commitments. Indeed, the recent Federal Budget provided for a $30 million reduction in the AAT’s budget this year, with no plan to increase the AAT’s budget going forward.

The government should also look abroad for guidance on other reforms that have been effective in reducing asylum backlogs without compromising fairness. These include simplified procedures for less complex cases that are likely to be successful. Canada, for example, has introduced a new procedure for applicants from certain countries with claims that have had historically high acceptance rates. This includes, for example, age- and gender-based claims from Iran and kidnapping and extortion cases from Libya.  The procedures allow for visas to be issued quickly without the need for a hearing. This frees up resources to deal with more complex cases.

Ensuring that every asylum seeker has access to high-quality legal advice while going through the system is another strategy shown to increase both the efficiency and fairness of the system. Switzerland has significantly reduced asylum processing times by introducing strict timetables for each stage of decision-making, which have been facilitated by increased investment in decision-making capacity, and universal access to high-quality, government-funded legal advice. Labor has previously committed to restoring funding to legal services for asylum seekers, and doing so should be a top priority for the May budget.

If the Government is serious about ensuring integrity in our asylum system, it should start by addressing the backlog of asylum applications in a fair, robust, and efficient, manner.

Asher Hirsh, Senior Policy Officer, Refugee Council of Australia.

Associate Professor Daniel Ghezelbash, Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice.