THE LEGACY CASELOAD

What is the legacy caseload?

The term ‘legacy caseload’ refers to a group of about 30,500 asylum seekers who have experienced lengthy delays to the processing of their refugee claims in Australia. This group of asylum seekers arrived in Australia by boat before 1 January 2014. They were allowed to remain in Australia while their claims for protection were being processed but did not have their claims finalised by January 2014.  The legacy caseload also includes babies born in Australia to asylum seekers in this category.

A number of policy changes after 2012 meant that this group of asylum seekers were treated differently from other groups. These policies were implemented in response to the high numbers of asylum seekers arriving by boat in Australia between 2009 and 2013 and were designed to discourage future boat arrivals.

Why are there lengthy delays to processing the claims of this group?

In June 2012, the Gillard Government appointed an Expert Panel on Asylum Seekers to consider policies to ‘deter people from getting on boats’ and to establish ‘the best way forward’ in dealing with asylum seekers. The panel published its report containing 22 recommendations on 13 August 2012. In its first recommendation, the panel proposed a ‘no advantage’ principle to ensure that those who came to Australia by boat did not get an advantage over those who came through ‘regular’ channels.

In line with the Expert Panel’s recommendations, the Gillard Government reintroduced offshore processing. As a result, asylum seekers arriving by boat could be transferred to Papua New Guinea or Nauru for processing. Those who were transferred to the mainland were granted bridging visas with no right to work and limited access to social security. While this system was being established, the Gillard Government paused processing refugee claims until July 2013.

The Abbott Government took office in September 2013. According to the Immigration Minister at the time, Scott Morrison, the government would not give a permanent visa to anyone who had arrived by boat. The processing of refugee claims was therefore further delayed until temporary visas were re-introduced.

Temporary visas were re-established in December of 2014 when the Abbott Government passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Legacy Caseload Act 2014). As a result of this legislation, asylum seekers could only apply for Temporary Protection Visas (TPV) or Safe Haven Enterprise Visa (SHEV), as opposed to permanent protection, and could only do so once the Immigration Minister invited them to submit an application. This is a process known as ‘lifting the bar’.

Processing the refugee claims of the legacy caseload had recommenced by May 2015. As of April 2021, 86% of these had been finalised. The reasons for the delays since 2015 have not been made known.

What challenges does the legacy caseload face?

In addition to re-introducing temporary visas, the Legacy Caseload Act 2014 created a ‘fast-track’ procedure for asylum seekers who arrived in Australia by boat between 13 August 2012 and 1 January 2014 and were not transferred to Papua New Guinea or Nauru. According to the fast-track procedure, applicants who received a negative decision on their protection application were not allowed to appeal to the Administrative Appeals Tribunal (AAT), as would be allowed for other applicants. Negative decisions would be referred to the Immigration Assessment Authority (IAA), and new information that may support the applicant’s case would not be considered other than in exceptional circumstances. From 2 April 2019, visa holders who are applying for a subsequent TPV or SHEV are automatically subject to the fast-track process.

The extensive delays to processing claims has been known to cause mental distress in asylum seekers, and legal and social support services have been limited. Some asylum seekers have developed a clinical syndrome different from other trauma-related mental disorders. Psychiatrists have labelled this ‘protracted asylum seeker syndrome’. The term ‘lethal hopelessness’ has been used specifically for people in the legacy caseload because of the higher rate of suicides amongst this group.

What is being done to process the claims of people in the legacy caseload?

On 21 May 2017, the Immigration Minister at the time, Peter Dutton, issued a ‘lodge it or leave’ deadline. Dutton warned that asylum seekers in the legacy caseload must apply for a TPV or SHEV before 1 October 2017 or risk being deported. At the time of the announcement, approximately 23,000 of the 30,500 asylum seekers in the legacy caseload had already applied for protection. Lawyers and advocates called the deadline unprecedented, unfair and unnecessary, as many asylum seekers subject to the deadline had not been invited to apply for protection until recently.

In May 2021, the Morrison Government announced an expedited interview process to resolve the status of more than 1,100 asylum seekers from the legacy caseload. These interviews are expected to be complete by 30 June 2021, giving many of the applicants two weeks to prepare their case. Human rights lawyers have claimed the ‘arbitrary and unnecessary timeframe … will compromise fairness and deny justice’. Some hold concerns that community legal centres will become overwhelmed, meaning ‘that some applicants will not be able to obtain legal assistance’.

People in the legacy caseload who have been granted a TPV or SHEV are not eligible for permanent residence in most circumstances, and must continually reapply for a renewal of their TPV or SHEV through the fast-track procedure.

Community response

The UNHCR remains concerned with Australia’s treatment of the legacy caseload and in 2018 made a number of recommendations, including recommending the Australian government provide permanent – not temporary – protection, repeal the fast-track assessment process, and grant asylum seekers access to government-funded legal representation and adequate interpreting services.

In 2019, the Australian Human Rights Commission (AHRC) published a report called ‘Lives on hold: Refugees and asylum seekers in the ‘Legacy Caseload’’. The report reveals a number of ongoing challenges facing the legacy caseload, including a lack of access and procedural fairness in determining their refugee claims, uncertainty about protection for a prolonged period of time, questionable support for adequate standards of living, the impact of limitations to family reunification and the ongoing risk of detention. The report makes 31 recommendations, including repealing the Resolving the Asylum Legacy Caseload Act 2014.

The Department of Home Affairs responded to each recommendation in the AHRC’s report and claimed that ‘the measures introduced by the [Resolving the Asylum Legacy Caseload Act 2014] were a continuation of the Australian Government’s protection reform agenda to uphold the integrity of the humanitarian program and deter people smuggling.’

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Last updated 1 June 2021