New tribunal promises better way forward for protection claims but serious flaws remain

MEDIA RELEASE:

The ASRC welcomes the Australian Government’s long-overdue push to scrap the defected Administrative Appeals Tribunal (AAT) and Fast Track process which has failed thousands of people seeking asylum and refugees from accessing fair and just outcomes over decades.

While the Government’s legislation proposes changes and a new tribunal to help restore integrity and improve performance management of Tribunal members, it fails to provide the urgent reform needed to give just outcomes for people seeking asylum, including victim-survivors of violence and trauma and the LGBTIQA+community.

ASRC’s legal team has identified the new legislation and proposed replacement Administrative Review Tribunal (ART) adopts a different set of rules for refugees, people seeking asylum, and migrants, including exclusion from basic procedural fairness standards. In particular, the new legislation maintains the existing requirement for the ART to draw an unfavourable inference if people seeking asylum raise new protection claims and evidence.

This creates significant barriers to justice for protection visa applicants who often have valid reasons for a delay in providing evidence and claims, including trauma and related mental health illness, language barriers, fear of persecution for their sexuality, fear of authorities and lack of legal representation. As there is no valid reason for including this requirement, the ASRC has strongly recommended this is removed from the legislation in the submission it filed last Thursday with the Government.

Other areas addressed in the ASRC’s submission include providing people in detention with more time to apply to the ART (currently they only have 7 days), and allowing refugees and people seeking asylum to access entitlements available to other applicants including seeking an extension of time to apply to the ART (including victim-survivors of family violence) and access to means-tested free legal representation.

The new laws will also see the end of the unfair Fast Track system and the Immigration Assessment Authority (IAA), yet it fails to provide any recourse or pathway to permanence for the thousands who’ve previously received unfair decisions by the IAA.

Read the ASRC’s full submission

Jana Favero, Director of Systemic Change at ASRC
“The AAT had long since lost the confidence of the public and those seeking fair and timely decisions about their protection claims due to its high proportion of political appointments, lack of resourcing and poor processes which produced incorrect and unlawful outcomes for people seeking asylum and refugees.

“The IAA and AAT are being abolished as they are unfair, yet with the current wording of the new bill some of the most unfair elements are still being retained. We urge the Albanese Government to act on our concerns to ensure the bill that is reforming an unfair, politicised tribunal doesn’t result in a system still stacked against people seeking asylum and refugees.”

Betia Shakiba, Human rights advocate and lawyer
“My family were forced to flee Iran and we came to Australia seeking safety over a decade ago. Our experience with the IAA since arriving in Australia has been that it is unjust and it does not prioritise keeping families together.

“My Mum and Dad separated in Australia. My Dad and us kids were given protection visas but my Mum’s case was rejected and she was denied protection. Ten years later and she is still trying to get her protection claims recognised.

“The IAA disregarded that my mum was part of our family and that she had children here that needed her. She is still on a Bridging visa here and fighting for a just outcome.

“I can’t say I am happy the IAA will be abolished, because the Government still has no solution for people like my Mum who have been left behind and failed by the system.”

Rachel Saravanamuthu, Senior Legal Policy Lead at ASRC
“The abolition of the Administrative Appeals Tribunal is a critical opportunity for urgent reform, yet sadly the Government continues to exclude refugees and people seeking asylum from safeguards to ensure fair and just outcomes.

“Given the dire consequences for refugees from incorrect and unlawful Tribunal decisions, including indefinite detention, permanent family separation and return to harm, we urge the Government to adopt the ASRC’s recommendations to ensure the new Tribunal is fair and accessible to refugees and people seeking asylum.”