When a claim for asylum is unsuccessful
Australia’s Migration Act requires that a non-citizen without a valid visa cannot remain in Australia. This includes people who have been unsuccessful in their asylum claim. Yet a large number of failed asylum seekers remain in Australia, and the number is increasing. This explainer sets out some of the practical hurdles faced when an asylum seeker whose claim has failed is to be deported.
What’s in a name?
An asylum seeker whose claim to asylum has been unsuccessful is often referred to as a ‘failed’ asylum seeker (implying inadequacy of a person’s claim) or a ‘rejected’ asylum seeker (implying arbitrariness in a government’s asylum decisions). Ultimately, there are many reasons why a person’s claim may not meet requirements for refugee protection, though they may have other compelling humanitarian reasons to seek protection.
Besides those who fall in the ‘legacy caseload’, when a claim is rejected, a person may appeal to the Administrative Appeals Tribunal (AAT), and, failing that, they may seek judicial review. Once the appeals process has been exhausted, the person is required to leave Australia.
There are many different ways to describe the act of removing those who have had their claims to asylum rejected, including ‘deportation’, ‘forced’ or ‘involuntary return’, and ‘removal’. For political reasons, some agencies and professions may prefer some terms over others.
How many?
As at December 2022, a total of 70,564 failed asylum seekers remained in Australia. Of them, 38,919 were awaiting an appeal decision at AAT, while others (the number of which is unspecified) were awaiting a judicial review. Some (also an unspecified amount) were granted bridging visas, typically on the basis that they are required to depart Australia as soon as possible.
The number of failed asylum seekers remaining in Australia has steadily increased, as has the AAT backlog in hearing their appeals. In comparison with the recent figures, in December 2019 there were 46,356 failed asylum seekers in Australia, 25,098 of whom were engaged in the AAT process.
Non-refoulement safeguards
The UNHCR acknowledges that removing failed asylum seekers plays an important part in upholding the integrity of the asylum system. However, the UNHCR also emphasises that removal should only occur after the asylum claim is properly assessed, as well as consideration of whether the person has other compelling humanitarian reasons to stay. If this process is not followed, a government may be breaching legal obligations when deporting a failed asylum seeker. These legal obligations relate to the principle of non-refoulement, which prohibits states from returning a refugee or asylum-seeker to places where there is a risk that his or her life or freedom would be seriously threatened.
While Australia is bound by non-refoulement obligations under international law, Section 197C of the Migration Act allows for non-refoulement to be ignored where the non-citizen is in detention. This contradiction is analysed by Dr Sangeetha Pillai, the Australian Law Council and others.
Practicalities
In addition to legal and human rights obligations, there are practical challenges to deporting a failed asylum seeker. This includes cooperation with the country to which they are being returned, travel documents, identity and safety concerns, statelessness and medical considerations if a person is deemed medically unfit for travel.
It is important that there is cooperation from the person being removed as well as the government of the country to which they will be deported. Some states refuse to accept the forced return of people, which has caused governments to establish bilateral readmission agreements.
The person being removed must have a valid passport/travel document. However, there are many reasons why asylum seekers do not own travel documents. They may have been barred from obtaining one due to insufficient documentation or interference by family or authorities, or it may have been lost or destroyed on the journey. It may have expired in the 3 years or more that their asylum claim took to be assessed, or they may have used a fake passport to exit their country of origin safely or to enter Australia.
Obtaining a passport requires engagement with their Embassy or Consulate, and requires proof of identity and nationality. This becomes problematic in the case of asylum seekers, where claims to asylum are made on the basis that protection elsewhere is needed because the country of origin is unable or unwilling to protect the person from a well-founded fear of persecution. People claiming asylum may therefore be unwilling to engage with their Embassy out of fear or because it contradicts their assertions about their home state. Equally, the home state may be unwilling to help a person who made allegations against them.
Furthermore, the threshold required to prove identity or nationality can be unattainable, due to a lack of documentation or lack of cooperation. An example of the difficulties surrounding this evidence threshold was detailed in a 2022 Federal Court Case (see paragraph 61).
A person may seek protection when they are stateless. That is, where a person’s country of origin does not recognise their nationality. As a result, stateless people who have been refused protection are often indefinitely detained in Australia because there is no country that acknowledges their nationality.
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Last updated 2 February 2023